In Johnson v. Lowe’s Home Centers, LLC, a decision issued on September 21, 2022, a federal judge in the U.S. District Court for the Eastern District of California issued an order compelling arbitration of a plaintiff’s individual claims under the Private Attorneys General Act (PAGA) and dismissing the remaining representative PAGA claims.
More than two years have passed since the start of the pandemic, and many workers continue to work from home in some capacity. In fact, companies are offering remote positions as a hiring incentive to increase their job candidate pools. Before agreeing to remote work arrangements with new hires or current employees, especially those who are hourly and nonexempt, companies may want to consider certain factors to ensure that the arrangements will be feasible.
The COVID-19 pandemic did not slow down the pace of new California Private Attorneys General Act (PAGA) letters being filed with the state Labor Workforce Development Agency (LWDA), according to filing data. Instead, there was a significant increase in the filing of PAGA letters during the height of the COVID-19 pandemic in 2020 and 2021.
On May 23, 2022, the Supreme Court of California held that premium pay for missed meal and rest periods constitutes “wages” under California labor law and that employers may be held liable for the failure to properly report and timely pay out such wages.
Initially driven by the COVID-19 pandemic, more than two years after the start of the first lockdown, remote work arrangements remain prevalent in California. According to one nonpartisan think tank, 22 percent of Californians work remotely and 15 percent have a mix of working remotely and working outside the home. Given these statistics, an important consideration for California employers may be ensuring that their companies comply with state and local wage and hour laws that may apply to remote workers.
On January 1, 2022, the minimum wage in California increased to $15 per hour for employers with twenty-six or more employees, and $14 per hour for employers with twenty-five or fewer employees.
Since the inception of California’s Private Attorneys General Act (PAGA), claims filed pursuant to the statute’s provisions have increased more than 1000 percent, with the state’s Labor and Workforce Development Agency (LWDA) receiving approximately 4,000 PAGA notices each year since 2014. This number is anticipated to grow much higher in 2022.
A new California law, Assembly Bill (AB) No. 701, provides new regulatory scrutiny of job performance quotas at warehouse distribution centers. The stated purpose of the law is to ensure that the use of production quotas do not penalize workers for taking meal and rest breaks, using the restroom, and complying with other health and safety standards.
To address the prevalent and ongoing practice of permitting employees to work from home, a new California law authorizes employers to provide required workplace notifications to their employees as attachments to emails. Senate Bill (SB) No. 657 was signed into law on July 16, 2021. While the new law maintains the requirement to physically display mandatory postings in the workplace, SB 657 also provides California employers with a new way to provide important notifications to employees about wage and hour issues that could help deter employers from class and collective action liability regarding such claims.
On July 15, 2021, in Ferra v. Loews Hollywood Hotel, LLC, the Supreme Court of California set forth a new rule requiring that premiums for meal, rest, and recovery break violations be paid at the regular rate of pay.
California Assembly Bill (AB) 1003 would create a new type of grand theft in the state: a company’s “intentional theft of wages” of more than $950 from any individual employee, or $2,350 total from 2 or more employees, in a 12-month period. The bill requires that the theft be intentional, through fraud and while knowing that the wages are due to the employee. The bill also defines “wages” to include “wages, gratuities, benefits, or other compensation.”
The pandemic continues to loom large over the California legislature this year, as indicated by the bills advancing through the legislative process. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate. The bills pertain to the expansion of medical and sick leave, postings for employees working remotely, and warehouse production quotas for facilities that have ramped up operations during the pandemic.
On July 15, 2021, the California Supreme Court issued a decision that will increase dramatically California employers’ potential liability for missed meal, rest, and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the court unanimously held that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing.
On January 1, 2020, California’s new lactation accommodation law, Senate Bill (SB) 142, went into effect and imposed detailed requirements for employers to provide lactation rooms and other facilities, along with new policies and procedures to administer lactation break programs. Just two months later, most California employees started working remotely from home due to the COVID-19 pandemic and state and local ordinances. Thus, most employers had not yet fully implemented the new accommodation requirements before employees left the workplace. Now that many employees are getting vaccinated and returning to the workplace, it is a good time for California employers to review their lactation accommodation policies to ensure that they fully comply with the law.
With the onset of warmer weather this spring and summer, now is a good time for California employers to review their recovery break policies.
Despite all that is going on in the world, the California legislature has been busy this year. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate.
Although California was one of the first states to legalize medical cannabis, and later recreational cannabis, voters and the courts have long resisted extending protections against discrimination in employment to cannabis users. In 1996, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996, legalizing the use of cannabis for medical purposes, such as the treatment of anorexia, arthritis, chronic pain, and migraines.
A new bill has been introduced in the California Assembly that could affect most employers and employees in the state. If passed in its current form, Assembly Bill (AB) 1844 would expand paid sick leave coverage to employees and their family members for behavioral health conditions.
Current California Labor Code Section 98.7 provides that any person who believes that he or she has been discharged from employment or otherwise discriminated against in violation of any law under the jurisdiction of the California Division of Labor Standards Enforcement (DLSE) may file a complaint with the DLSE within six months after the occurrence of the alleged violation.
Although California law does not require that employers provide bereavement leave for employees, most employers provide the benefit as a form of unpaid leave, typically for up to five working days. Recently, Assembly Bill (AB) 2999 was introduced to mandate bereavement leave as a new form of protective leave in California.
California Senate Bill (SB) 188 seeks to provide a broader definition of “race” in California’s anti-discrimination law. The bill defines “race” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
California legislators continue to advocate new legislation expanding employer requirements to provide lactation accommodations for employees. California Senate Bill 142 (SB 142) would amend the California Labor Code and the Health and Safety Code to require additional lactation accommodations for employees.
How can a company manage its overtime policy in compliance with California law? A recent decision by a federal district court in California certified a class action involving claims of unpaid overtime, and the court’s reasoning shows what factors employers may want to consider—and to avoid—when designing an overtime policy.
Many California employers round employees’ clock-in and clock-out times to the closest quarter hour, tenth of an hour, or five-minute interval. This practice is commonly referred to as “rounding.”
Federal and state laws require that employers pay employees for all hours worked. The Fair Labor Standards Act (FLSA) defines “hours worked” broadly to include (a) all time during which an employee is required to be on duty, on the employer’s premises, or at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work, whether or not the employee is required to do so. When employees file claims for unpaid time worked, the burden is on the employer to show that all work hours have been properly recorded and paid.
When is time compensable under California law? In a recent decision by the Ninth Circuit Court of Appeals, Sali v. Corona Regional Medical Center, the court explained that there are two categories of compensable time
On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (FEHC) that clarify protections from national origin discrimination will go into effect.
Beware the Bureau of Field Enforcement (BOFE) investigation in 2018. The California Labor Commissioner’s Office has ramped up investigations by its BOFE unit to enforce wage and hour compliance. The Bureau investigates complaints and takes enforcement actions that can include audits of a company’s payroll records and workers’ compensation insurance coverage, and the issuance of citations for violations of California Labor Code sections.
On October 15, 2017, Governor Brown signed Senate Bill 396, a new law that requires employers in California with 50 or more employees to provide training on policies that prohibit harassment based on gender identity, gender expression, and sexual orientation. This training is to be provided as a component of the already-required two-hour sexual harassment training provided to supervisory employees once every two years and within six months of an employee’s assumption of a supervisory position.
In part one, of this blog series on responding to charges brought by the Equal Employment Opportunity Commission (EEOC), I described some situations that pose an increased risk of a systemic harassment investigation by the EEOC in response to an individual harassment charge. Usually, when responding to the EEOC, employers can provide a precise and limited response that includes only the most essential supporting documents.
