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Daniel J. Turner on April 25, 2017
Synopsis:

California seeks to make it even harder to hire new employees

Assembly Bill 5, known as the “Opportunity to Work Act” recently cleared the California Assembly Committee on Labor and Employment by a 5 to 2 vote.

The OWA would require employers with as few as 10 employees to “offer additional hours of work to an existing non-exempt employee before hiring an additional employee or subcontractor.”  The employer is required to offer the additional hours of work to any employee who – in its “reasonable judgment” – has the skills and experience to perform the work even if the employee has previously informed the employer he or she does not want additional hours or wishes to remain part time.  In addition, the OWA does not specify the methodology an employer must use when offering the additional hours of work among existing employees or what happens when more than one employee expresses a desire for the additional hours.  The OWA does state that the employer must use a “transparent and nondiscriminatory process” to distribute the additional hours of work, although those terms are not defined.    

The OWA would also allow an employee (defined as a nonexempt employee within the State of California), to file a complaint with the Division of Labor Standards Enforcement or bring a civil action for violation of the statute.  In case you were wondering, the OWA provides that any violation “shall be punished by a civil penalty” and that the court “may award reasonable attorney’s fees” if the employee prevails.  Not surprisingly, the employer is not entitled to its attorney’s fees in the event it establishes it did not violate the OWA when it hired an additional worker. 

Finally, the OWA requires employers to maintain documentation regarding the decision to hire any new employee or subcontractor.  Specifically, for any new hire, the employer must retain documentation that “the employer offered additional hours of work to existing employees prior to hiring” the new employee/subcontractor.  The OWA also requires employers to retain the work schedules of all employees although it does not specify how long the employer is to retain such records. 

The OWA now advances to Assembly Appropriations where it will likely move closer to ultimate passage by the State Assembly. 

Jennifer Grock on April 12, 2017
Synopsis:

California’s FEHA already forbids employers from basing employment decisions upon sexual orientation.

            On April 4, 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court to rule that sexual orientation discrimination is prohibited by Title VII.  In Hively v. Ivy Tech Community College of Indiana, the Court ruled that sexual orientation discrimination is a form of unlawful sex discrimination against those who do not conform to traditional gender roles in their relationships.

While Hively is likely to have wide-ranging implications for many employers across the country, the impact of the decision on California employers should be quite minimal.  This is because California’s Fair Employment and Housing Act (“FEHA”) has prohibited employers from discrimination or harassment on the basis of sexual orientation since 1993.  California law also protects workers from discriminatory conduct on the basis of their gender (including gender identity and expression) and sex (including pregnancy, childbirth, and breastfeeding status).

California employers must take steps to ensure that their anti-discrimination policies and trainings clearly prohibit harassment and discrimination on the basis of sexual orientation, sex, gender, and all other protected categories.

The Hively opinion can be viewed here.

Jennifer Grock on March 28, 2017
Synopsis:

M&W attorney Jennifer S. Grock will teach a class to expectant and new parents on California pregnancy, parental leave, and lactation accommodation laws.

I am excited to announce that I will be teaching a new class at the Pump Station's two locations in Los Angeles for expectant and new parents, "Know Your Maternity Leave & Workplace Rights."  The class will cover the complex array of laws applicable to expectant and new parents in California and help you make sense of it all. You won't have to wonder how much maternity leave you are entitled to, or whether your employer can cut your pay while you take time to pump. The goal of the class is to arm you with accurate information, so that you can relax and enjoy this special time in your life.  Topics will include pregnancy accommodations, leaves of absence for mom or dad, monetary benefits from the EDD, and pumping at work.

 

The class will be offered at the Pump Station in Hollywood on April 10 at 6 p.m. and at the Pump Station in Santa Monica on May 18 at 6 p.m.

 

Please visit the link below to sign up and feel free to reach out with any questions.

http://www.pumpstation.com/parenting-classes/prenatal/know-your-rights.html

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Daniel J. Turner on March 14, 2017
Synopsis:

California Court of Appeal affirms denial of employer's motion to compel arbitration

In Betancourt v. Prudential Overall Supply, plaintiff alleged that Prudential maintained a “uniform policy and systematic scheme of wage abuse.”  As a result, Betancourt asserted a single claim for “enforcement of the Labor Code” under PAGA and alleged that the Company:  (1) failed to pay overtime; (2) failed to provide meal periods; (3) failed to provide rest periods; (4) failed to pay minimum wage; (5) failed to pay timely wages upon termination; (6) failed to pay timely wages during employment; (7) failed to provide accurate wage statements; (8) failed to keep complete and accurate payroll records; and (9) failed to reimburse necessary business-related expenses and costs.

Because Betancourt signed an arbitration agreement in which he agreed to “submit to final and binding arbitration any and all claims and disputes that are related in any way to [his] employment or the termination of [his] employment” as well as to “forego any right to bring claims on a representative or class member basis,” Prudential brought a motion to compel arbitration.

In addition to arguing that all of Betancourt’s claims related to his employment and, therefore, should be compelled to arbitration, Prudential also argued that Betancourt was attempting to evade arbitration by labeling his garden-variety wage and hour claims as PAGA claims.  Prudential argued that the action was – in substance – a standard wage and hour case and pointed to Betancourt’s “prayer for relief,” which sought business expenses, unpaid wages, interest, attorney’s fees and costs, remedies that do not fall within a PAGA cause of action. 

The Court of Appeal affirmed the trial court’s denial of Prudential’s motion to compel arbitration.  In doing so, the Court of Appeal ruled that a motion to compel arbitration is not the “proper procedural vehicle for sorting through alleged defects in the complaint.”  Accordingly, if Prudential believed that Betancourt was attempting an “end run” around arbitration by mislabeling his causes of action, the Court stated the Company should have challenged the pleadings and then brought a motion to compel arbitration if the complaint asserted private, non-PAGA claims.  As the Court stated “[i]t appears to this court that Prudential may be attempting to make an ‘end run’ around a demurrer or motion to strike, by trying to roll a challenge to the pleadings into a motion to compel arbitration.” 

Finally, in affirming the trial court’s ruling, the Court of Appeal repeatedly cited the California Supreme Court’s holding in Iskanian and made clear that a pre-dispute agreement between an employer and an employee to arbitrate does not bind the State of California to arbitration.  “A PAGA case ‘is not a dispute between an employer and an employee arising out of their contractual relationship.  It is a dispute between an employer and the state . . .’” 

Jennifer Grock on January 26, 2017
Synopsis:

California state law mandates that lactation accommodations must continue to be provided.

Among the questions we’ve been asked lately regarding the potential impact of the anticipated repeal of the Affordable Care Act (the “ACA” or “Obamacare”) is whether employers in California must continue to provide lactation accommodations to employees, if the landmark healthcare law is repealed.  In short, yes

The ACA presently requires employers to provide “reasonable break time” for an employee to pump for up to one year after her child’s birth.  Employers are also required to provide a private and secure place for moms who need to pump, other than the bathroom.

Even if these provisions are repealed by Congress in the coming months, California state law nevertheless mandates that employers provide employees with lactation accommodations as needed.  The California Labor Code specifically requires all employers to provide a reasonable amount of break time for pumping and to make a reasonable effort to provide a private space, other than a toilet stall, close to the employee’s work area, to accommodate pumping.

It is anticipated that California’s lactation accommodation laws will remain in effect despite any repeal of the ACA’s lactation-related provisions.  Employers should therefore review their policies to ensure that they are following both state and federal laws at present, and carefully assess their obligations with regard to this issue in the event of a full or partial ACA repeal.

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