Hill, Farrer & Burrill LLP

Employment Updates

California’s New Privacy Law Imposes Notice Requirements for Employers

The California Consumer Privacy Act (the “CCPA”) imposes new obligations upon certain businesses regarding their collection, use, storage, and disclosure of consumers’ personal information.  Beginning on January 1, 2021 the definition of “consumers” will include employees and applicants, dramatically expanding privacy rights when it comes to data collection. This will place new requirements on employers to provide privacy notices and to comply with the CCPA or else face substantial penalties.

 

What is the CCPA?

 

The CCPA of 2018 provides robust protections to consumers. The CCPA went into effect on January 1, 2020, and enforcement commenced July 1, 2020. The CCPA also applies to employees and applicants. More>>

Federal Legislation in Response to Coronavirus/COVID-19

On March 18, 2020, the Senate and House passed, and the President signed into law, one of several pieces of federal legislation in response to the Coronavirus/COVID-19 outbreak.  The “Families First Coronavirus Response Act” requires employers with less than 500 employees to provide 12 weeks of paid leave for the reasons and at the rates discussed below.  It also provides corresponding tax credits to employers.

Emergency Paid Sick Leave Act

Under the Emergency Paid Sick Leave Act, the employer must provide 80 hours of paid sick leave to full-time employees (or a pro-rated amount for part-time employees) at the rates below for any of the following reasons related to COVID-19: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the employee has been advised by a health care provider to self-quarantine; (3) the employee is experiencing symptoms and seeking a medical diagnosis; (4) the employee is caring for an individual  who is quarantined due to exposure or symptoms; (5) the employee is caring for a child whose school has been closed or childcare provider is unavailable; or (6) the employee is experiencing any other substantially similar condition.  More>>

Federal Court Enjoins AB 51, California Law Barring Mandatory Employment Arbitration

On January 31, 2020, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a preliminary injunction, which enjoins the state of California from enforcing AB 51.  Previously, on December 30, 2019, Judge Mueller granted a temporary restraining order enjoining the enforcement of AB 51 pending the Court’s ruling on the preliminary injunction.

AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020.  The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment.  More>>

Federal Court Temporarily Blocks AB 51, California Law Barring Mandatory Employment Arbitration

On December 30, 2019, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a temporary restraining order, which enjoins California from enforcing AB 51.  AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020.  The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment.  AB 51 specifically states that it is not “intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.” More>>

New California Employment Bills Approved by the Governor

October 13, 2019 was the deadline for Governor Newsom to decide whether to approve or veto several employment bills that were passed by the California Legislature in 2019.  The laws signed by Governor Newsom are summarized below and will become effective January 1, 2020 unless otherwise noted.

AB 5 (Independent Contractor v. Employee)

AB 5 codifies Dynamex, a 2018 California Supreme Court decision, and makes workers employees unless the hiring entity demonstrates each of the following factors under the so-called “ABC” test: (A) the person is free from the control and direction of the hiring entity in connection with the performance of the work; (B) the person performs work that is outside the usual course of the hiring entity’s business; and (C) the person is customarily engaged in an independently established trade, occupation, or business. More>>

Reminder Regarding Minimum Wage Increases Effective July 1, 2019

This is a reminder to all employers conducting business in the City of Los Angeles and in the unincorporated areas of the County of Los Angeles, that effective July 1, 2019, minimum wage will increase to $14.25 per hour for employers with at least 26 employees, and to $13.25 per hour for employers with fewer than 26 employees.

Employers conducting business in other cities and counties should review the applicable minimum wage laws in those cities and counties. Effective July 1, 2019, the minimum wage in other cities, including Malibu, Pasadena, Santa Monica, San Jose, Santa Clara, and San Francisco, will also increase. More>>

The California Supreme Court Severely Narrows the Application of the De Minimis Doctrine as a Defense to Wage Claims

On July 26, 2018, the California Supreme Court issued its long-awaited decision in Troester v. Starbucks Corporation, No. S234969 (July 26, 2018) holding that the de minimisdoctrine did not apply under either the Fair Labor Standards Act (“FLSA”) de minimis doctrine or general principles of California law where an employee worked approximately 4-10 minutes off-the-clock per shift.  Federal courts have applied the de minimisdoctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the small amounts of time are administratively difficult to record.

The California Supreme Court departed from the rationale of several federal courts and held that the time the plaintiff spent working off-the-clock performing tasks such as locking the door, activating the alarm, and walking coworkers to their cars for security purposes was not administratively difficult to record and was not de minimisMore>>

Reminder Regarding Minimum Wage Increase Effective July 1, 2018

This is a reminder to all employers conducting business in Los Angeles that effective July 1, 2018, minimum wage will increase from $12 to $13.25 per hour for employers with 26 or more employees, and will increase from $10.50 to $12 per hour for employers with 25 or fewer employees.

The California minimum wage remains $11 per hour for employers with 26 or more employees, and $10.50 per hour for employers with 25 or fewer employees.  The California minimum wage will increase on January 1, 2019 to $12 per hour for employers with 26 or more employees and $11 per hour for employers with 25 or fewer employees. More>>

U.S. Supreme Court Approves Employer-Mandated Arbitration Agreements with Class-Action Waivers

In an important victory for employers, on May 21, 2018 the United States Supreme Court ruled that employers may lawfully require employees to enter into arbitration agreements with class action waivers.  The Court in Epic Systems v. Lewis struck down a series of decisions by the Obama-era National Labor Relations Board that prohibited employers from requiring employees to sign arbitration agreements containing class action waivers.  The NLRB had held that employees taking part in class actions were engaged in “concerted activity” protected by the National Labor Relations Act.  The high court disagreed, holding that the Federal Arbitration Act governed arbitration agreements and required that the agreements be enforced according to their terms. More>>

The California Supreme Court Severely Limits When It Is Appropriate To Classify A Worker As An Independent Contractor

On April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations W., Inc. v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr. 30, 2018), severely restricting when it is appropriate for an employer to classify a worker as an independent contractor for purposes of the California Wage Orders.

The Court adopted the “ABC” test, utilized in several other jurisdictions, as the appropriate test to determine whether a worker is an employee or an independent contractor.  The “ABC” test clarifies the definition of “employ” (“to engage, suffer, or permit to work”) that is set forth in the California Wage Orders.  More>>