Draft California Regulations for Nighttime Agricultural Operations Up for Vote at Standards Board

On April 18, 2019, the California Occupational Safety and Health Standards Board will consider an update to the regulations governing nighttime agriculture operations at its monthly meeting. In 2013, the Division of Occupational Safety and Health (or Cal/OSHA) asked for a revised regulation because of prior accidents or fatalities that occurred during the darkness of nighttime agriculture operations.

Federal Court Finds California’s New ABC Test Is Not Preempted, Applies to Trucking Industry

As California employers wait to see how the California legislature votes on independent contractor bills after the new ABC test was announced by the California Supreme Court last year, a recent federal case out of the U.S. District Court for the Eastern District of California has received some attention in the transportation industry.

Key Takeaways From an ERISA Fiduciary Breach Ruling on Behavioral Standards of Care After a 10-Day Trial

Behavioral health claims administrators and plan sponsors alike may be looking more closely at their care guidelines—and how they are applied—after a federal court ruled in a California class action that a claims administrator had breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) by applying standards of care that were more restrictive than generally accepted standards and by improperly prioritizing cost savings.

Salary History Is Not Quite History in the Ninth Circuit, According to Supreme Court

On February 25, 2019, in a much awaited decision, the Supreme Court of the United States issued a per curiam ruling in Yovino v. Rizo, No. 18-272, 586 U.S. ___ (2019). Rather than address the substantive issue of whether an employer may rely on salary history to establish starting pay under the federal Equal Pay Act (EPA), the Court vacated and remanded the matter on a procedural—yet still important—issue.

California Court of Appeal Identifies Triggers for Reporting Time Pay Obligation

In a ruling that will have a significant impact on the retail and restaurant industries, among others in California, the California Court of Appeal ruled that a retail employer’s call-in scheduling policy—in which employees were required to call the employer in advance of a shift to find out if they needed to show up for

Second Verse, Same as the First: Ninth Circuit Weighs in Again on Background Check Disclosures, Raising the Compliance Bar Even Higher

The disclosure requirement of the federal Fair Credit Reporting Act (FCRA) remains one of the most contentious and expensive litigation areas for employers. The case law from various federal district courts has been a mixed bag, leaving employers to question what it means to provide a “clear and conspicuous” disclosure in a writing that “consists solely” of the disclosure.

Due Process and Primary Jurisdiction Defenses to Website Accessibility Claims Fall Like Dominoes in the Ninth Circuit

The Ninth Circuit Court of Appeals issued its highly-anticipated website accessibility opinion in Robles v. Domino’s Pizza, reaffirming the obligation to make retailers’ websites accessible and rejecting the due process and primary jurisdiction arguments commonly asserted by defendants in website accessibility litigation.

Please Release Me: New California Civil Code Section 1542 Release Language Effective January 1, 2019

Given the litigious environment in California, employers operating in the state are in great need of enforceable general release terms in severance and settlement agreements. California employers entering into severance or settlement agreements will want to be aware of the amendment to California Civil Code Section 1542.

Federal Agency Preempts California’s Meal and Rest Break Rules for Property-Carrying Commercial Drivers

In an order with significant implications for motor carriers, the Federal Motor Carrier Safety Administration (FMCSA) concluded that California’s meal and rest break rules are preempted by federal transportation law and may no longer be enforced by the State of California where the driver is subject to federal hours-of-service (HOS) requirements. Specifically, on December 21,

Ninth Circuit Asks California Supreme Court to Decide Question That Could Greatly Expand California’s Prevailing Wage Laws

Last week, the U.S. Court of Appeals for the Ninth Circuit in Mendoza v. Fonseca McElroy Grinding Co., Inc., et al., No. 17-15221 (January 15, 2019), requested that the California Supreme Court decide the following question: Is operating engineers’ offsite “mobilization work”—including the transportation to and from a public works site of roadwork grinding equipment—performed “in the execution of [a] contract for public work,” Cal. Lab. Code § 1772, such that it entitles workers to “not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed” pursuant to section 1771 of the California Labor Code?

San Francisco’s Amended Fair Chance Ordinance Takes Effect with Updated Notice Requirements

On October 1, 2018, San Francisco’s amendments to its Fair Chance Ordinance (FCO) took effect. The FCO is San Francisco’s “ban the box” equivalent that regulates employers’ use of applicants’ and employees’ arrest and conviction information.

Governor Brown Signs Final Round of Employment-Related Legislation

Once again, Governor Jerry Brown ends the legislative year by signing a flurry of employment-related legislation. This year, however, is Governor Brown’s last year to do so, and next year we will report about the employment-related legislation that the new governor (whoever that is) undoubtedly will have signed.

New California Sexual Harassment Legislation Will Make It More Difficult for Employers to Resolve Claims

In the waning days of his final term of office and on the last possible day under the legislative calendar, on September 30, 2018, California Governor Jerry Brown signed a trio of bills into law that should have a dramatic effect on the ability of workers to bring claims for harassment and discrimination in the workplace.