Jamie Santos
Jamie Santos
Associate Attorney, San Diego, CA
  • B.A., History and International Relations, University of San Diego, Cum Laude
  • J.D., University of San Diego School of Law, Labor and Employment Law Concentration

I grew up knowing I wanted to be an attorney, even though I didn’t quite know or understand what that entailed. My family always said I’d become a lawyer because of my ability to advocate for myself or others—and my ability to win every argument or debate I got myself into.

I found my niche in labor and employment law during law school. Stokes Wagner drew me in with its personalized approach to client issues. Labor and employment law creates unique opportunities to litigate on behalf of our clients and work intimately with clients. With California’s ever-evolving employment laws, I enjoy counseling clients on a more interactive basis. Working with clients, I help better their business and the lives of their employees. I most enjoy working with our diversified clients in solving and preventing day-to-day issues that arise in the hospitality industry.

When I’m not at my computer, I enjoy traveling with my family and friends, attending concerts or watching sports–usually basketball.

California’s AB 51, barring mandatory arbitration agreements in employment, is now facing preemption and injunction challenges. On December 6, 2019, the U.S. Chamber of Commerce, California Chamber of Commerce, and several other business organizations filed suit in federal court against the State of California, alleging that AB 51 is preempted by the Federal Arbitration Act (FAA).

AB 51 prohibits employers from requiring employees to sign mandatory arbitration agreements regarding disputes under the California Fair Employment and Housing Act (FEHA) or the California Labor Code. However, AB 51 includes a provision expressly protecting arbitration agreements otherwise enforceable under the FAA. The Chamber of Commerce’s complaint alleges the FAA preempts state law disfavoring the formation or enforcement of arbitration agreements. In the alternative, the suit seeks declaratory relief that AB 51’s express FAA carve-out provision applies to both implementation and creation of arbitration agreements.

A hearing on the motion for a preliminary injunction will be held on January 10, 2020. If granted, AB 51 will not be enforced while the preliminary injunction is in effect, and until the case is decided on the merits. The lawsuit is Chamber of Commerce of the United States v. Becerra, No. 2:19-cv-2456-KJM (DB) in the United States District Court for the Eastern District of California. For more information on AB 51, see our article, “California Governor Newsom Signs Landscape-Changing Worker-Friendly Bills”.

For a printable PDF of this article, click here.

On October 10, 2019, Governor Newsom signed AB 51 and AB 9 into law. These two worker-friendly laws may require employers to review and revise current policies and procedures relating to employment-related claims. Specifically, AB 51 prohibits employers from entering into mandatory arbitration agreements for all employment-law related claims under the Fair Employment and Housing Act (FEHA) and the California Labor Code. Additionally, under AB 9, the deadline for filing an employment-related administrative complaint with the Department of Fair Employment and Housing (DFEH) is extended by two years. The laws are set to take effect on January 1, 2020, and may face some challenges in the meantime; however, employers should prepare now for the changes in the landscape of employment-related claims.

Mandatory Arbitration Agreements Nearly Obsolete

Under the new law, employers can no longer require employees to arbitrate any potential claim under FEHA or the California Labor Code as a condition of employment. Notably, AB 51 specifies that “{a}n agreement that requires an employee to opt-out of a waiver or to take action to retain their rights is deemed a condition of employment.” Thus, even if an arbitration agreement is “voluntary” and allows an employee to opt-out, the agreement may not require arbitration of FEHA or Labor Code claims (including wage and hour).

An employer also cannot threaten, retaliate, or discriminate against an applicant for employment or an employee for refusing to consent to arbitration of a potential claim under FEHA or the Labor Code. Any violation of AB 51 is considered an “unlawful employment practice” and creates a new private right of action under FEHA.

Of most concern for this bill’s viability is its potential conflict with the Federal Arbitration Act (FAA). The FAA protects the validity and enforceability of arbitration agreements. Most state laws that have attempted to interfere with an employer’s right to use arbitration agreements have been struck down as preempted by the FAA. However, the legislature seems to have already considered this potential conflict: AB 51 includes a provision expressly stating “{n}othing in this section is intended to invalidate a written agreement that is otherwise enforceable under the Federal Arbitration Act.”

Whether AB 51 withstands possible immediate and inevitable preemption challenges is unclear. Regardless, employers should take note now to review their arbitration agreements to ensure compliance come January 1, 2020.

Statute of Limitations Extended for DFEH Claims

By signing AB 9, Gov. Newsom also extended the deadline for filing an employment-related administrative complaint with the DFEH from one year to three years, beginning January 1, 2020. Although this bill largely stems from the #MeToo movement as an effort to increase the statute of limitations for bringing sexual harassment claims, this bill extends the statute of limitations for all employment claims under FEHA.

Opponents of AB 9 express both policy and practical concerns with extending the FEHA statute of limitations. Policy-wise, the prior one-year statute of limitations ensured that claims were brought forward in a timely fashion to aid in a prompt resolution. Practically, opponents also argue that AB 9 could cause significant issues with possibly stale evidence and unavailable witnesses, as FEHA claims tend to be more subjective.

The bill specifies that it “shall not be interpreted to revive lapsed claims,” meaning those claims that have lapsed under the prior one-year statute of limitations cannot be brought. However, employers should start now to review their internal investigation policies and procedures to ensure the preservation of potential evidence for the new statutory period for FEHA claims.

For a printable PDF of this article, click here.

The National Labor Relations Board (the “Board”) recently issued a precedent-reversing ruling on August 23, 2019, that allows employers to bar non-employees from leafletting on their premises. In its decision, the Board held that contractor employees are not generally entitled to the same National Labor Relations Act (NLRA) Section 7 access rights as the property owner’s employees.

The majority reversed the agency’s judge ruling that the Bexar County Performing Arts Center violated the NLRA by blocking symphony members represented by American Federation of Musicians from protesting on its property. There, the judge relied on a prior 2011 New York New York LLC board decision, which held employers can bar off-duty workers working for on-site contractors from handing out leaflets on their property only when they would significantly interfere with the employer’s use of the property or when excluding the workers is justified by another legitimate business reason.

The Bexar County Performing Arts Center challenged the original ruling that it broke the law by kicking the musicians off its property during a performance. The musicians had been passing out leaflets and had performed at the Center but were not employees of the Center.

The Board found that the New York New York LLC decision and a subsequent decision in Simon DeBartolo Group unfairly restricted an employer’s rights to control their property, including the rights to exclude. Although the NLRA gives an employer’s workers some rights to access its property, this is not the case for workers like the musicians, the majority said.

However, the Board limited its bar on off-duty workers. If the workers “regularly and exclusively” work on the property and do not have one or more “reasonable nontrespassory” ways of getting their point across, they can access the property.

This ruling is the latest in a series of decisions by the majority Trump-appointed Board largely favoring employers, in contrast to employee-favored decisions under the Obama administration. As such, employers stay tuned for further decisions and interpretations of the NLRA that could potentially change the way employers may control and regulate their property.

For a printable PDF of this article, click here.

As spring starts to turn into summer, increases to city and state minimum wages are steadily approaching. Employers should take the time now to ensure that they are ready for minimum wage increases scheduled for July 1, 2019.

The following cities and states will see an increase in minimum wage as of July 1:

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Hospitality employers in Oakland, CA, should especially be aware of the new Oakland Minimum Wage Charter Amendment passed in November 2018 that imposes new minimum wages for hotel workers within the city. As of July 1, 2019, employers covered under this ordinance must pay the following minimum hourly wage to all employees:

  • $15.00/hour for employees who also receive health benefits through their employer
  • $20.00/hour for employees who do not receive health benefits through their employer

The measure applies to hotels containing 50 or more guest rooms as well as to: (1) any contracted, leased, or sublet premises “connected to or operated in conjunction with” a hotel; and (2) anyone “providing services at” a hotel. This definition includes businesses not normally considered a hotel, such as a restaurant leasing space within a hotel.

Employers in cities and states with no minimum wage increase as of now should be on alert for any potential raises to come and also be aware of already scheduled increases for certain cities (including New York City, Seattle, and Oakland) to take place at the end of the year. For more information, contact your Stokes Wagner attorneys.

For a printable PDF of this article, click here.

NYC's New Lactation Room Laws

March 21, 2019  •  Jamie Santos

Category: Legal Updates

Employers in New York City now have additional requirements for their employee lactation rooms and lactation policies.

The new laws, which went into effect March 18, 2019, expand the requirements surrounding an employer’s obligation to provide a lactation room. Lactation rooms must now be in reasonable proximity to the employee’s work site and contain a chair and a flat surface for placing pumping equipment and other personal items. In addition, the City law requires employers to provide:

• A refrigerator suitable for breast milk storage in reasonable proximity to the employees’ work area;

• An electrical outlet in the lactation room itself; and

• Nearby access to running water.

Employers who cannot comply must be able to show an undue hardship.

Employers also must have a written policy informing employees about their right to a lactation room and the process by which an employee may request lactation-related accommodations. The policy must:

• Specify how to request a lactation room;

• Require a response from the employer within five business days;

• Implement a procedure for the use of the room by multiple employees, including contact information for any follow up required;

• State that the employer shall provide reasonable break time for an employee to express breast milk consistent with NYS Labor Law section 206-c; and

• State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.

The New York City Commission on Human Rights has released model policies for the City’s lactation room law available here. Employers should take steps now to ensure their work area is equipped with the required accommodations. Employers should also develop their own policy according to the guidelines detailed by the Commission and provide employees with a compliant lactation accommodation request form.

For a printable PDF of this article, click here.

More employees will now be considered non-exempt, as the U.S. Department of Labor raised the minimum salary threshold for workers to qualify for the Fair Labor Standards Act’s “white collar” exemption. In replacing an Obama administration rule, the new proposal would raise the salary threshold requirement from $23,660 to $35,308 per year. As a result, more employees will be subject to compensation for any time exceeding 40 hours in the workweek.

The replacement rule updates the FLSA’s overtime exemptions for executive, administrative and professional workers, making more than a million workers eligible for overtime pay. This also replaces a currently enjoined rule from 2016 that doubled the minimum salary threshold from $23,660 to over $47,000. It also created an index for future increases to the threshold.

The proposed rule will be subject to a 60-day public comment period after publication in the Federal Register. The DOL estimates it will then take effect in January 2020. The agency is asking for public comment as to whether the threshold should be subject to periodic automatic increases, like the Obama administration’s proposed rule.

What this means for employers: The DOL estimates that, under the new rule, more than a million workers would move from exempt to non-exempt status, qualifying them for overtime pay. Under the rule, in order to be exempt from overtime compensation, employees must now be paid at least $35,308 per year, as opposed to the previous requirement of only $23,660. Employers should thus be prepared to adjust their payroll accordingly if the proposal survives any legal challenge.

For a printable PDF of this article, 2019.3.7-DOL.Raises.FSLA.Overtime.pdf.