Labor & Employment

MORE BAD NEWS FOR CALIFORNIA EMPLOYERS AS GOVERNOR SIGNS BILLS INTO LAW

Judge with gavel on table

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Written by Jeremy Mittman

Recently, we informed our readers about a new law making it more difficult to classify independent contractors as such.  Unfortunately, that was just the tip of the iceberg.  A number of additional new employment-related bills recently signed into law by Governor Gavin Newsom will have a negative impact on California employers. Unless specifically noted, these laws go into effect on January 1, 2020.  MSK recommends that any employer with California employees should consult with their employment counsel to address questions regarding changes to current policies/procedures in light of these new laws.  (more…)

BITE YOUR TONGUE: NLRB RULES THAT PRODUCE COMPANY’S MEDIA, CONFIDENTIALITY POLICIES ARE LAWFUL

Gavel In Court Room

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Written by Jonathan Turner

The NLRB under the current administration continues to issue decisions that factor in legitimate business considerations of employers when evaluating rules that are alleged to restrict employee protections under the NLRA.  One such recently issued decision, LA Specialty Produce Company, 368 NLRB No. 93 (October 10, 2019), may have particular significance to many of MSK’s clients because it addresses an important issue on which we frequently have consulted with clients in the past — restrictions on communications responsive to inquiries from the media.

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PRINT SHOOT PAY DELAY

Model posing for a photograph during a photo shoot

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Written by Jeremy Mittman and Stephen Rossi

Finally, an employer-friendly law passed in California! Unfortunately, it only affects a small number of employees— but for those employers that are implicated, the law is a welcome reprieve.

 

On September 5, 2019, California Governor Gavin Newsom signed into law Senate Bill 671, the “Photoshoot Pay Easement Act,” which went into effect immediately.  This law specifies that any short-term print shoot employee (from models to crew members) can be paid on the employer’s next regular pay day (including by mail), rather than on the last day they work. (more…)

RAISING THE BAR: DOL UPS SALARY BASIS REQUIREMENT FOR OVERTIME EXEMPTIONS

Midnight working concepts

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Written by Jeremy Mittman 

This week, the U.S. Department of Labor (“DOL”) unveiled the final version of its overtime exemption rule, which sets the annual salary threshold workers need to exceed to qualify for the Fair Labor Standards Act’s (“FLSA”) “white collar” exemptions at $35,568 per year (up from the current annual salary threshold of $23,660).  The DOL estimates that about 1.3 million workers who hadn’t previously been eligible for overtime will now stand to receive it once the rule takes effect on January 1, 2020.

 

The FLSA’s “white collar” exemptions apply to employees employed in bona fide administrative, executive, professional, and computer-related capacities, as well as outside sales employees.  If employees meet the requirements for these exemptions (including, where applicable, the salary basis requirement), employers need not pay them overtime for any time worked over 40 hours per week under federal law.

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HAVE INDEPENDENT CONTRACTORS IN CALIFORNIA? YOU MAY NEED TO RETHINK THAT.

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Photo Credit: iStock.com/utah778

Written by Jeremy Mittman, Jeffrey Davine, Robert Lowe, Susan Kohn Ross and Samuel Richman 

On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, codifying the “ABC test” adopted in the California Supreme Court decision, Dynamex (see, e.g. prior posts here, here, and here) and ensuring that most California workers should appropriately be classified as employees instead of independent contractors.  The bill goes into effect January 1, 2020.

Though supporters state that the bill is aimed primarily at the so-called “gig economy,” in reality A.B. 5 affects virtually every type of business in California.

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CALIFORNIA ARBITRATION ROUNDUP: EMPLOYERS ARE 3-1 FOR FAVORABLE ARBITRATION RULINGS

definition of arbitration

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Written by Jeremy Mittman

California employers received mostly good news this past month on the arbitration front, with a trio of pro-employer arbitration-related rulings.  The California Supreme Court’s recent ruling invalidating an employer’s arbitration agreement (discussed below) is a notable exception.

California Supreme Court Invalidates Employer’s Arbitration Agreement As Unconscionable.

In OTO LLC v. Ken Kho, the California Supreme Court ruled that an Oakland Toyota dealership’s arbitration agreement with a former employee was unenforceable and was so unfair and one-sided that it was procedurally and substantively unconscionable.  “Arbitration is premised on the parties’ mutual consent, not coercion, and the manner of the agreement’s imposition here raises serious concerns on that score,” the majority opinion said. (more…)

HOLD YOUR HORSES: CALIFORNIA EXTENDS DEADLINE FOR MANDATORY SEXUAL HARASSMENT TRAINING

Clock and calendar

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Written by Jeremy Mittman and Bethanie Thau

In 2018, California passed a law that greatly expanded sexual harassment training requirements for employers (see here). Under the law, employers of as few as five people must provide two hours of interactive sexual harassment training to their supervisors and one hour to all non-supervisory employees. The training was to have been completed by January 1, 2020.  Just before Labor Day, California Governor Gavin Newsom gave employers a welcome reprieve by extending the deadline to comply with the new training requirements by a year — to January 1, 2021. The bill signed by the Governor that extended the deadline also confirms that those employees who received sexual harassment training in 2019 need not be re-trained again for two years.

CALIFORNIA SUPREME COURT: EMPLOYEE CAN’T BRING CONVERSION CLAIM FOR UNPAID WAGES

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By Jeremy Mittman and Stephen Franz

Last week, the California Supreme Court ruled that a former start-up employee could not hold his former boss personally liable for unpaid wages based on the theory of common law conversion.  Conversion is a legal term for theft.  This is a win for employers as, if the Court had ruled otherwise, employers potentially could be held liable for tort damages (including punitive damages) for failing to pay wages. (more…)

NEW YORK STATE ENACTS BROAD NEW SEXUAL HARASSMENT & DISCRIMINATION LEGISLATION

Lawyers consulted on various lawsuits.

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by Jeremy Mittman and Gregory Hessinger 

Why This Matters

On August 12, 2019, New York Governor Cuomo signed into law legislation that greatly strengthens protections against sexual harassment. The bill, SB 6577, makes sweeping changes to current sexual harassment and discrimination laws.  Most will take effect 60 days from the date the Governor signed the bill, or on October 11, 2019. New York State employers should work with employment counsel to alter their policies and practices to comply with these new requirements.

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LET THE SUNSHINE IN: CALIFORNIA & NEW YORK PROHIBIT DISCRIMINATION BASED ON HAIRSTYLE

Three multi-racial office workers talking and laughing

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By Jeremy Mittman and Sam Richman 

Within the past two weeks, both California and New York have passed laws prohibiting employers from discriminating based upon hairstyle.  Governor Gavin Newsom signed California’s “CROWN Act” (Create a Respectful and Open Workplace for Natural Hair) on July 3, 2019.  The law amends the state’s Education and Government Codes to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” It takes effect on January 1, 2020. (more…)