By Jonathan Turner

AB 3080, a closely watched bill affecting the workplace, recently passed the Senate and now is awaiting the Governor’s final approval.  A product of the “me too” movement, AB 3080 does a number of things that are intended to prohibit employers from limiting disclosure and discussion of alleged workplace harassment or discrimination, and to participate in harassment or discrimination investigations or proceedings.  The provisions in AB 3080 appear primarily to be directed to “nondisclosure agreements” and to arbitration agreements, although neither type of agreement is expressly identified as such in the text of the bill. Continue reading “California Legislative Efforts to Ban Non-Disclosure Agreements and Arbitration Agreements in the Workplace Edging Closer to Becoming Law”

By Emma Luevano

The de minimis doctrine, which states that the law does not concern itself with “trifles,” has been applied by federal courts to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.  On Thursday, July 26, 2018, the California Supreme Court ruled that this doctrine does not apply when the otherwise compensable time occurs regularly.  According to the Supreme Court, the advent of modern technology in recording time makes reliance on the de minimis rule nearly unnecessary.  The Supreme Court, however, left for another day whether the de minimis doctrine can excuse an employer from paying for compensable time which does not occur regularly.

In Troester v. Starbucks Corp., a Starbucks employee claimed that, after clocking out, he was required to perform tasks such as transmitting sales data, setting alarms, and sometimes bringing in patio furniture or walking coworkers to their cars, which took an additional 4 to 10 minutes of time per day.  A federal judge dismissed the case, finding that it would be impractical to require Starbucks to record the brief amounts of time employees spent doing work tasks before leaving their stores.  The plaintiff appealed, and the Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether the de minimis rule applies to claims for unpaid wages brought under California Labor Code Sections 510 (providing for overtime pay), 1194 (setting forth a private right of action for minimum wage and overtime violations), and 1197 (providing for minimum wage).  In Thursday’s ruling, the Supreme Court addressed the question in two parts.  Continue reading “Employers Cannot Rely on the De Minimis Doctrine to Avoid Paying Small Amounts of Regularly Occurring Off-the-Clock Work”

By Samantha Becker

Recently, in Curry v. Equilon Enterprises LLC, the California Court of Appeal ruled that a wage and hour class action against Shell Oil could not proceed because the service station manager bringing the suit was not a Shell employee.  Rather, the manager was employed by ARS, the company that contracted with Shell to operate the station.

Similar to a franchisor-franchisee relationship, ARS had a contract with Shell to operate multiple gas stations.  The plaintiff managed two locations.  She was hired by ARS, trained by ARS employees, reported to ARS employees, and supervised ARS employees.  ARS paid plaintiff and made all disciplinary and promotional decisions regarding her employment.  Plaintiff brought a class-action suit against ARS and Shell, claiming she and other managers were misclassified as exempt employees, denied overtime pay and denied meal and rest breaks. The plaintiff also claimed that ARS and Shell were joint employers. Continue reading “California Court of Appeal Provides New Guidance on Meaning of “To Employ” Workers”

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. Continue reading “Free Speech Issues”