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California Labor Law Update

Labor Law Attorneys

We continue to monitor California statutory changes, Appellate State  court decisions, as well as 9th Circuit federal decisions and Supreme Court decisions impacting workers in California.  Here’s a sampling of what has happened recently.


Classification of Employees - Dynamex

May 21, 2019

From 1947 until 2018, litigation involving the misclassification of workers under California Industrial Wage Commission matters required workers to prove they were employees. Since this was quite onerous for most workers, in 2004 our Partner Lewis N. Levy and Mark Pope of Pope, Berger, Williams & Reynolds in San Diego believed the facts here presented an excellent test case to demonstrate how unfair this was to workers. As a result, Lewis and Mark initiated litigation on behalf of the Dynamex drivers to change the law.

After the California Supreme Court decision in Dynamex Operations West v. Superior Court, California employers bear the burden of proof when they allege independent contractor status. As most of our readers know, employees are eligible to receive overtime, minimum wage, sick leave, Worker’s Compensation protections, and other benefits.

In April of 2018, through Dynamex Operations West v. Superior Court (Dynamex), the “ABC Test” was adopted by the California Supreme Court as a method to determine whether a worker is an employee as opposed to an independent contractor.  The test requires the hiring entity to show the following to disprove employment: A) The worker is free from the control of the hiring entity in connection with work performance; B) The worker performs work outside the hiring entity’s usual business; and C) The worker is engaged in an independent business of the same nature as the work performed.

Dynamex can be Applied Retroactively

In December of 2018, the Plaintiffs in a decade old case called Vasquez v. Jan-Pro Franchising International (Jan-Pro) appealed their dismissal in light of Dynamex and the adoption of the ABC Test.

On May 2, 2019, the Ninth Circuit Court of Appeals held Dynamex applied retroactively to Jan-Pro.  The case’s dismissal was vacated, and it was remanded back to the District Court to be considered on its merits.

If you or someone who know believes they have been misclassified as an independent contractor, please contact our office for further assistance.

Melendez v. San Francisco Baseball Associates LLC 

May 21, 2019

On, April 25, 2019, the Supreme Court of California held in Melendez v. San Francisco Baseball Associates LLC (Giants) that, “It is up to state courts, not an arbitrator, to interpret state labor law standards applicable to all workers.”

In this matter, the word “discharge” under California Labor Code §201(a) was the center point of contention. California Labor Code §201(a) provides, in pertinent part, as follows: “(a) If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.”  Melendez asked, what does it mean to be discharged? -- and is it up to State law to interpret it’s meaning or does the preemption doctrine require it to be submitted for arbitration?

The California Supreme Court held that, “Allowing a state court to interpret California Labor Code §201 does not threaten the policies of promoting the arbitration of labor contract disputes, but importantly it does protect the states’ authority to enact minimum labor standards.”

This decision will allow for broader protections for unionized workers under State law by limiting the application of the preemption doctrine, which makes arbitration the primary means of resolving disputes over interpretations of a collective bargaining agreement.  The Court recognized that the interpretation of a statute is not within an arbitrator’s purview. 


NEW 2019 LABOR & EMPLOYMENT LAWS 


Expanded Sexual Harassment Training: SB 1343

By January 1, 2020, employers with 5 or more employees, including temporary and seasonal employees, must provide sexual harassment training to all employees, not just supervisory employees, once every 2 years, and within 6 months of their hire. Temporary employees must receive the training within 30 days or the first 100 hours worked. Previously, only supervisors of companies with 50 or more employees were required to receive sexual harassment training.

The California Department of Fair Employment and Housing (DFEH) will be developing online training videos that employers may utilize for training. In addition, California enacted specific requirements for talent agencies (AB 2338) and building and construction apprenticeships (AB 2358).

“Omnibus” Sexual Harassment Bill: SB 1300

This bill creates a number of new laws related to sexual harassment. Government Code §12950.2 includes bystander harassment training which trains bystanders on how to recognize problematic behavior and intervene. Employers are now liable for any form of harassment on an employee, applicant, intern, or volunteer, by a non-employee, not just sexual harassment. This bill also clarifies that just one instance of harassment may be enough for a hostile work environment claim.

Government Code §12964.5 was created under this bill, which prohibits employers from requiring a “Release of Claim or Right” in exchange for a raise, bonus, or continued employment. For example, an employee cannot sign away their right to an injury claim.  In addition, employees cannot be forced to sign a non-disparagement agreement or other document prohibiting an employee from disclosing unlawful acts in the workplace including sexual harassment. All prior agreements of the sort are now nullified. There are exceptions to this however, so contact our firm to understand how the law may apply in your case.

The costs provision was also amended where Defendants who are the prevailing party in a matter will now have to prove the action was frivolous, unreasonable, or groundless in order to be awarded attorneys’ fees and costs. 

Confidential Limits for Sexual Harassment Settlement Agreements: SB 820

NDAs  will no longer be able to prevent facts from being released regarding sexual assault, sexual harassment, sex discrimination, or retaliation for reporting discrimination in a civil action or administrative action (CCP §1001). The Court is also prohibited from restricting the disclosure of that information. This does not apply to the identity of the claimant, or facts regarding identity, unless a government agency or public official is involved.

Targeting Provisions Precluding Sexual Harassment Testimony: AB 3109

A party cannot be waive their right to testify in a proceeding concerning criminal conduct or sexual harassment. Any contract or settlement provision entered into after January 1, 2019, that waives a party’s right to testify is rendered void and unenforceable.  

Expanding Sexual Harassment Liability in Business, Service, or Professional Relationships: SB 224

Responding to recent high profile sexual harassment allegations, SB 224 prohibits sexual harassment in professional non-employment relationships, specifically addressing elected officials, lobbyists, directors, producers, and investors.  A party is liable for any sexual harassment upon individuals who approach the party in efforts to start a business or form a relationship with a third party. It is also illegal to aid or conspire in the denial of rights of the victim.

New Defamation Protections for Sexual Harassment Complaints, Investigations, and References: AB 2770

Under AB 2770, an employer may make statements to a third party regarding an employee’s sexual harassment behavior if made without malice. This new law  provides a safe harbor against defamation liability and allows employers to address such problematic behavior during reference checks.

Human Trafficking Awareness for Hotel Employees: SB 970

By January 1, 2020, hotels and motels must provide at least 20 minutes of training regarding human trafficking and awareness to each and every employee who could come in contact with a victim.  The training must be provided within 6 months of hire. 

Lactation Area Cannot be a Bathroom: AB 1976

While there are a couple exceptions to this rule, an employer must provide space for lactation purposes that is not a bathroom. 

Clarified and Tightened Exceptions to “Ban the Box” Limitations: SB 1412

In 2017, California limited employer’s ability to ask or obtain information regarding an employee or applicant’s conviction history. This bill adds the following clarifications: Employers may ask a job applicant about certain convictions if the employer is required to do so under state or federal law, if the applicant would be required to possess a firearm, if the conviction prevents the applicant from holding the position sought under the law, or if the employer is prohibited by law from hiring someone with a specific conviction. Employers can still conduct criminal background checks if required by state, federal, or local law. 

California’s Minimum Wage Increase: SB 3

On January 1, 2019, the minimum wage in this State increased to $12.00 per hour for employers with 26 or more employees and $11.00 an hour for employers with 25 or less employees. It is important to note that these are state minimums and that cities and counties like Los Angeles set their own minimums which are higher than the State minimum. 

Division of Labor Statistics Announces Increase in Computer Professional Salary for Exemption Purposes

Computer software employees are exempt from being paid overtime if they meet certain income thresholds.  Beginning in 2019, these numbers have increased as follows: $45.41 an hour for hourly paid employees, $7,883.62 a month for salaried employees, or $94,603.25 annually for salaried employees. If the employee is paid less than the threshold and works overtime, then overtime pay requirements must be met.

Inspection of Payroll Records: SB 1252

Labor Code 226 has been clarified so that employees now have a right to receive a copy of payroll records if they ask. The employer must make the copies themselves, and not leave it for the employee to do. Failure to do so within a certain period of time can result in a $750.00 penalty.

Publicly-Available Injury and Illness Reports: AB 2334

Labor Code 6410.2 now requires Cal-OSHA to monitor federal OSHA requirements for changes relating to the Improve Tracking of Workplace Injuries Act.  President Trump proposed softening federal reporting requirements. It also clarifies that a record keeping violation will continue until the violation is corrected. 

Family Leave Benefits for Military-Related Purposes: SB 1123

Beginning January 1, 2021, employees can receive Paid Family Leave benefits due to qualifying urgent situations related to military service by the employees’ spouse, domestic partner, child, or parent.

Public Sector Labor Relations & Union Security after Janus v. AFSCME: SB 866, 846

As most of you know, forty years of case law was overturned when Janus vs. AFSCME held that public agency employers and unions that represent employees can no longer require employees to pay a service fee (agency shop or fair share fee) as a condition of employment.  Some have opined that Public Sector Unions, who must continue to protect the collective bargaining right of non-union employees, may be disadvantaged by this change, as non-union employees can now receive this benefit for free. 

SB 866 is the California Legislature’s reaction to Janus.  The new law regulates how membership dues and fees are managed. It authorizes employee organizations to request payroll deductions for union dues and requires public employers to honor such requests. Any requests to begin or end due deductions must be made to the union, not the employer.  The union is responsible for letting the employer know the amount of dues for deduction.  Employers cannot discourage public employees or applicants from becoming or remaining members of the union.  

We expect challenges to this legislation and will update you as they become known.

The Legislative Employee Whistleblower Protection Act: AB 403, SB 419

While prior laws protected whistleblowers, AB 403 and SB 419 now impose criminal and civil liability on legislative members or legislative staff who interfere or retaliate against a legislative employee’s right to disclose a violation of law including sexual harassment.

Investigation of Complaints of Workplace Misconduct in the legislature: SB 867

Government Code 10249  requires the newly created Legislative Counsel Bureau to accept and investigate complaints of workplace misconduct in the Legislature.

Custodial Officer Training: AB 1888, AB 2197

Current training requirements for peace officers will remain unchanged, in that a deputy sheriff employed to perform custodial duties will not have to retake a training course before being reassigned to positions responsible for detecting and preventing crime.

Veterans with Service-Related Disabilities Employed by the State: SB 1312

SB 1312 extends benefits granted by the California Wounded Warriors Transitional Leave Act to state officers or employees, who are veterans, and hired after January 1, 2016.

Peace Officers Domestic Violence Training: SB 1331

SB 1331 amends Penal Code 13519 to require that domestic violence training include techniques for identifying signs of lethal violence in domestic violence situations. 

Workers Compensation for Peace Officers Responding to Mass Shooting in Nevada: AB 1749

As you know, many California police professionals attended the concert in Las Vegas that led to the worst mass casualty shooting in US history.  AB 1749 extends workers compensation coverage to peace officers responding to the October 1, 2017 shooting in Las Vegas, Nevada. 

Agriculture Labor Relations: AB 2751

AB 2751 amends the Agriculture Labor Relations Act by requiring the ALRB to process a final board order within one year concerning back pay, or any board order finding liability for an award. It requires immediate implementation of the order even during an appeal, challenge, etc.

School Employees - Dismissal or Suspension; Hearings; Evidence: AB 2128

AB 2128 amends Education Code 44944 to allow testimony, evidence, dismissal, or suspension decisions for acts occurring more that 4 years prior to the allegation, regarding behavior or communication of a sexual nature with a student that is considered lewd or inappropriate. Prior law only included sexual acts and not sexual communications.

School and Community College Employees Parental Leave: AB 2012

AB 2012 adjusts the pay formula used to pay eligible employees who use paid parental leave after first using accrued sick time.  Eligible employees will first receive their paid sick time, then will receive no less than 50% of their regular salary for the remaining portion of the 12 weeks, i.e., 1 week of full salary paid sick time, then 11 weeks of parental leave paid at or above 50% of their regular salary.

Salary History:  AB 2282

AB 2282, now effective in California, clarifies existing law - AB 168 - with regard to preventing employers from asking about or relying on an applicant’s salary history information when making employment/hiring decisions. AB 2282 clarifies existing law so that it is clear that any “request” from an “employer” about an “applicant” for employment is covered and that employers are prohibited from asking about prior salary history when interviewing for a job.

Also, AB 2282 makes it clear that the law does not prohibit an employer from asking an applicant what the applicant expects for salary and compensation.

Board of Directors: SB 826

SB 826 adds section 301.3 to the California Corporations Code. This new law requires that publicly held domestic or foreign corporations, whose principal executives offices are located in California must have a minimum number of female directors on their board by no later than December 31, 2019.  There are various ratios and formulas set forth in SB 826, depending on the size of the board of directors, which will apply.

Paid Family Leave Insurance Program: AB 2587

AB 2587 amends the California Insurance Code to make filing for and obtaining paid family leave benefits easier. This bill removes the seven day waiting period which normally applies to obtaining paid family leave benefits.  Unfortunately, the new law does confirm that employers may require an employee to take up to 2 weeks of earned but unused vacation leave prior to receiving Paid Family Leave benefits.



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