EMPLOYMENT AND LABOR LAW: LEGAL UPDATE FOR CALIFORNIA EMPLOYERS
Topics for this Month include:
– City of Los Angeles’ “Ban the Box” Ordinance
– Ruling on DOL Overtime Regulations Fast Tracked
– Recordkeeping requirements for OSHA Workplace Injury Records
– EEOC’s Proposed Harassment Enforcement Guidance
– Requirements for Providing Rest Breaks Clarified by California Supreme Court
– U.S. Supreme Court to Review (Again) Class Action Waivers
– FCRA Disclosure Notice Cannot Include Liability Waiver
The City of Los Angeles “Bans the Box”
Effective January 1, 2017, most employers with more than ten (10) employees who work, on average, at least two hours per week within the City of Los Angeles limits, and LA City contractors, are prohibited from including on their job applications a “box” inquiring about a job applicant’s criminal history. Employers may check an applicant’s criminal history after making a contingent offer of employment. The employer must conduct a written assessment, taking at least the EEOC’s factors into account, before deciding to not hire the applicant based on information in the criminal background check. The employer then must notify the applicant in writing, with a copy of the assessment, and give the applicant five days to provide the employer additional information for the employer to consider. The employer then must conduct a re-assessment, and provide it to the applicant if the employer chooses to go through with the decision not to hire the applicant.
Employers are excluded from this ordinance when: (1) they are required by law to obtain information regarding an applicant’s conviction; (2) the applicant would be required to possess or use a firearm in the course of employment; (3) a person convicted of a crime is prohibited by law from holding the particular job position; or (4) the employer is prohibited by law from hiring someone convicted of a crime.
Employers subject to this new ordinance also must: (1) state in solicitations and advertisements for employment that the employer will consider applicants with criminal histories in accordance with the City’s ordinance; (2) post a notice informing applicants of the ordinance in every location in the City of Los Angeles where applicants visit; and (3) send the notice to every labor union or other representative of workers with which the employer has a collective bargaining agreement or the like that covers employees working in the City of Los Angeles. All applicant-related records, including the written assessments, must be retained for at least three years.
Starting July 1, 2017, the City will begin penalizing employers for violations of this ordinance. The text of the ordinance can be found at http://clkrep.lacity.org/onlinedocs/2014/14-0746_misc_11-28-2016.pdf.
Challenge to DOL Overtime Regulations Fast Tracked
In the December 1, 2016 “The Legal Brief,” we reported that the Department of Labor’s FLSA overtime exemption overhaul was temporarily enjoined by the Eastern District of Texas. The ruling has been appealed to the Fifth Circuit, which has expedited briefing on the issue. All briefs were supposed to be submitted by the end of January.
DOL Persuader Rule Permanently Enjoined
The Texas district court which issued a preliminary injunction in June, 2016 to temporarily halt the Department of Labor’s Persuader Rule (reporting on activity by labor consultants and attorneys retained to assist in responding to union organizing campaigns and collective bargaining issues) has now permanently enjoined the DOL from enforcing the rule.
Workplace Injury Records to be Kept for Five Years
On December 16, 2016, OSHA issued a final rule requiring companies to keep records of workplace injuries for five years after the injury occurs. This includes the OSHA 300 Log, privacy case list, annual summary, and OSHA 301 Incident Report forms. 29 CFR Part 1904.33.
EEOC Seeking Public Comment on Proposed Enforcement Guidance on Harassment
The EEOC has released for public input proposed enforcement guidance on the unlawful harassment provisions of federal discrimination laws. Public comments are being accepted through February 9, 2017, and can be submitted through here: https://www.regulations.gov/docket?D=EEOC-2016-0009.
SIGNIFICANT CASE LAW
Rest Breaks Must be Free From All Employer Control
On December 22, 2016, the California Supreme Court issued its anticipated opinion in Augustus v. ABM Security Services, Inc., espousing its interpretation of what constitutes a “rest break.” In this case, the plaintiffs alleged that ABM’s rest period policy was unlawful because the company had a policy requiring security guards to carry radios and were expected to respond to emergency calls during their rest breaks. The trial court agreed, and awarded a certified class $90 million in damages for failing to provide lawful rest breaks. The court of appeal reversed, holding that being on-call does not mean that an employee is prevented from resting. The California Supreme Court disagreed, and found: (1) rest periods must be “duty free” and, thus, free of an employer’s control; and (2) an employer still has control when an employee is “on call” and, therefore, violates the requirement that the employee not be working during a rest period.
For many employers, this ruling will have no effect on their current rest period policies. However, certain industries and/or certain jobs have been affected significantly, such as the security guard industry, parking attendants, employees working alone at a retail store, etc. These employers will now have to wrestle with the realities of business versus the requirement that employees be completely free of employer control for ten-minute rest breaks.
U.S. Supreme Court to Resolve Split on Enforceanility of Class Action Waivers in Employment Arbitration Agreements
As discussed in previous “The Legal Brief” reports, currently there is a split among courts across the nation as to whether provisions in employment arbitration agreements prohibiting individuals from suing their employer on a class basis violates the right to engage in concerted activity under the National Labor Relations Act. The U.S. Supreme Court has agreed to review several of these rulings, including the recent Ninth Circuit case, Morris v. Ernst & Young, LLP, which found a class action waiver to be unlawful.
FCRA Disclosure Notice May Not Include Liability Waiver
In Syed v. M-I, LLC, the Ninth Circuit ruled that the Fair Credit Reporting Act (“FCRA”) is violated when obtains a job applicant’s consumer report after including a liability waiver in the statutorily mandated disclosure. Pursuant to the FCRA, the disclosure document must consist “solely” of the required disclosures, and nothing else. In this case, the employer “willfully” violated the FCRA by including a liability waiver in the disclosure statement.
[This article is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]