Labor & Employment

Free Speech Issues

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The following was written collectively by our Labor & Employment Department.

A. Anti-SLAPP (Strategic Litigation Against Public Policy)Law, Code of Civil Procedure § 425.16

1. Anti-SLAPP Statute Does Not Provide a Safe-Harbor Against Employee FEHA Lawsuits, Even if the Claims Arise Partially from Employer’s Protected Conduct

In Nam v. Regents of the University of California, 1 Cal.App.5th 1176, 1193 (2016), a resident in the anesthesiology department at UC Davis Medical Center brought a lawsuit claiming sexual harassment and retaliation against her employer. The resident accused her residency program director of sexual harassment, alleging that after she rebuffed his advances, he retaliated against her by, among other things, issuing an unwarranted disciplinary letter and placing her on investigatory leave. The resident further alleged that she was retaliated against because she complained about the clinical behavior of another doctor and serious patient care and safety issues. (more…)

Miscellaneous Employment Law Developments

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The following was written collectively by our Labor & Employment Department.

A. California WARN Act

1. Layoffs Of Any Length Require Compliance with Cal-WARN

In The Internat. Brotherhood of Boilermakers etc. v. NASSCO etc., 17 Cal. App. 5th 1105 (Nov. 30, 2017), the employer notified 90 employees, without prior notice, to not return to work for at least 3 weeks due to a lull in shipyard production work. NASSCO later extended the layoff period by several weeks for some of the employees. The WARN Act’s notice requirement provides that a covered employer “may not order a mass layoff, relocation or termination at a covered establishment unless, 60 days before the order takes effect, the employer gives written notice of the order to … the employees of the covered establishment…”

The employer argued that such short “furloughs” were not a mass “layoff” covered by Cal-WARN. The Court disagreed because the law defined “mass layoff” as “a separation from a position for lack of funds or lack of work.” (§ 1400, subd. (c)) (emphasis added). The Court reasoned that, based on the plain meaning of that statutory language, a “separation” can be either temporary or permanent and there was no temporal requirement. The Court also noted that the Cal-WARN act was meant to give greater protection to employees than the Federal WARN act, which requires notice only when a layoff will last more than six months.

Liability for violations of the Cal-WARN act can include compensatory damages, attorney fees, and statutory penalties. (more…)

Arbitration

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The following was written collectively by our Labor & Employment Department.

1. Excluding claims arising from Confidentiality provision from the arbitration clause was substantively unconscionable

In Farrar v. Direct Commerce, Inc., 9 Cal. App. 5th 1257, review filed 4/28/17, a successful entrepreneur, Farrar, negotiated with Direct Commerce (“Direct”) a contract to become its VP of Business Development. The contract excluded claims arising from the confidentiality provision from the arbitration clause. The Court of Appeal agreed with the trial court that the arbitration provision was substantively unconscionable, because it carved out more than provisional remedies and was therefore too “one-sided.” The Court of Appeal, however, found the offending provision could be severed so that the arbitration provision could be enforced. (more…)

Wage and Hour Law

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The following was written collectively by our Labor & Employment Department.

A. Federal Court Decisions

1.No Administrative Exemption for Mortgage Underwriters

In McKeen-Chaplin v. Provident Sav. Bank, 862 F.3d 847 (9th Cir. 2017), the Ninth Circuit reversed the district court’s holding that mortgage underwriters qualified for the “administrative exemption” under the Fair Labor Standards Act (“FLSA”). In particular, the plaintiff alleged that she and other underwriters often worked in excess of 40 hours in a workweek and, therefore, were owed overtime compensation. The defendant argued that mortgage underwriters were exempt under the administrative exemption, and the district court agreed. The Ninth Circuit reversed, and focused on the distinction, imposed by Department of Labor (“DOL”) regulations interpreting the scope of the FLSA exemptions, between “work directly related to running or servicing of the business” and “working on a manufacturing production line or selling a product in a retail or service establishment,” also known as the “administrative-production dichotomy.” According to the DOL, those engaged in management of the business are exempt from the overtime-pay requirements of the FLSA, while those involved in making the goods it sells or performing the services a business provides to the marketplace are not exempt. The Ninth Circuit noted that two other circuit Court of Appeals, the Second Circuit (which ruled underwriters are non-exempt) and the Sixth Circuit (which ruled they are exempt) have reached opposite conclusions.

(more…)

National Labor Relations Act

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The following was written collectively by our Labor & Employment Department.

A. The “New” National Labor Relations Board Decisions and Memos

As of this past fall, following confirmation of Marvin Kaplan and William Emanuel as new members of the National Labor Relations Board (“NLRB”), that agency has obtained a 3-2 Republican majority for the first time in almost a decade. As expected, in the few short months thereafter, the Trump era NLRB has been on a path to reverse many of the decisions and actions taken by the Obama era NLRB. Here are the more significant NLRB decisions that fall in this category. Notably all were decided this past December.

1. NLRB Establishes New Standard Governing Workplace Policies

On December 14, 2017, in The Boeing Co., 365 NLRB No. 156, the NLRB overturned its standard for evaluating the legality of employee handbook policies. The standard that was overruled was established in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004). In Lutheran Heritage, the NLRB stated that a policy is illegal if employees could “reasonably construe” it to bar them from exercising their rights to engage in union or other concerted activities under the NLRA. In the Boeing case, the administrative law judge applied the Lutheran Heritage rule to Boeing’s workplace policy restricting workers’ use of camera-enabled devices and similar recording devices such as cellphones on company property violated the NLRA. Although Boeing’s “no-recording” policy would have violated the NLRA under Lutheran Heritage, the NLRB in Boeing stated that Lutheran Heritage’s “reasonably construe” standard entails a “single-minded consideration of NLRA-protected rights, without taking into account any legitimate justifications associated with policies, rules and handbook provisions.” (more…)

New California Laws

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The following was written collectively by our Labor & Employment Department.

New California Laws

1. California Salary History Ban

AB 168, which enacted California Labor Code Section 432.3, is intended to promote equal pay, particularly between men and women. In passing AB 168, which went into effect on January 1, 2018, California joins a handful of states (Massachusetts, Delaware and Oregon) and municipalities (New York City, Philadelphia and San Francisco) which have enacted similar measures. In sum, AB 168 prohibits all California employers (including public employers) from

  • Inquiring or seeking from job applicants, whether “orally or in writing, personally or through an agent,” salary history information (the law does not define the term “salary history); and
  • Relying on or considering salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. (more…)

New York: New Laws

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The following was written collectively by our Labor & Employment Department.

New York: New Laws

1. NY State Paid Family Leave Law Goes into Effect

In 2016, New York State adopted a 12-week paid family leave policy for New York employees (the “Paid Leave Law”). Once fully implemented, the Paid Leave Law will provide New York employees with up to 12 weeks of job-protected paid family leave for the purpose of (1) caring for a new child, (2) caring for a family member with a serious health condition, or (3) relieving family pressures when a family member, including a spouse, domestic partner, child or parent, is called to active military service. Starting on January 1, 2018, employees will be eligible for eight weeks of paid leave, earning 50% of their weekly pay (capped at 50% of the statewide average weekly pay). The number of weeks of leave and amount of pay increases yearly until, by 2021, employees will be eligible for the full 12 weeks of paid leave, earning 67% of their weekly pay (capped at 67% of the statewide average weekly pay).

Paid leave to care for a new child will be available to both men and women and will include leave to care for an adoptive or foster child. An employee may take paid leave to care for a new child any time within the first 12 months after the child’s birth or 12 months after the placement for adoption or foster care of a child with the employee. Paid leave to care for a family member with a serious health condition includes leave to care for a child, parent, grandchild, grandparent, spouse or domestic partner. (more…)

California Passes Immigrant Worker Protection Act

US Customs and Border Protection

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By Janice Luo and Justine Lazarus

California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450), which restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant.  It also requires employers to notify their employees before and after certain immigration inspections take place.  The new law, which adds Sections 7285.1, 7285.2, and 7285.3 to the California Government Code, and Sections 90.2 and 1019.2 to the California Labor Code, will take effect on January 1, 2018.

In conflict with the U.S. Immigration and Customs Enforcement’s (ICE) plans to increase enforcement actions under the Immigration Reform and Control Act (IRCA), which includes criminal and civil penalties for employers who knowingly employ unauthorized workers; the new California law seeks to protect foreign workers from unfair immigration-related practices, potentially causing problems for employers who must comply with federal and state laws.  (more…)

Expansion of California Parental Leave Rights

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Governor Signs Bill Expanding Parental Leave Rights for Employees of Small Businesses

By Mark Wasserman and Mazen Khatib

Governor Jerry Brown has signed the New Parent Leave Act (“PLA”), extending baby-bonding leave with job protection rights and continuation of pre-existing health insurance to a broad segment of California employees. Employers with twenty (20) or more employees within 75 miles of a qualified employee’s worksite must provide “12 weeks of [unpaid] parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.” A qualified employee is one with twelve (12) months of service to the employer and 1,250 hours worked in the previous year. This leave is unpaid but the employee is entitled to use any accrued vacation pay, sick pay or other paid time off during the period of parental leave. Moreover, during the protected period of the leave, the employer must continue its payments for employee health coverage under a group health plan.  The law goes into effect on January 1, 2018.

This law does not change anything for businesses with 50 or more employees as they were already required to provide such baby-bonding leave under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA). This law also does not apply to California employers that employ fewer than twenty employees. PLA is estimated to impact 16 percent of California’s labor force. (more…)

California “Bans the Box”: Pre-Offer Criminal Inquiries Generally Outlawed in the State

Gavel, scales of justice and law booksBy Anthony Amendola and Justine Lazarus

On October 14, 2017, California Governor Jerry Brown signed Assembly Bill 1008  a “Ban the Box” law that significantly restricts an employer’s ability to seek or obtain information about a job applicant’s criminal history.  The California law is similar to laws that have been adopted in other jurisdictions, including New York City and the City of Los Angeles. California’s new law amends the California Fair Employment and Housing Act (“FEHA”), adding a new section, Government Code Section 12952, which prohibits all California employers with five or more employees from: (more…)