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.

On February 13, 2020, the California Supreme Court issued its opinion in Frlekin v. Apple, Inc., holding that the time employees spend waiting for their bags and other personal belongings to be screened at the end of a workday is compensable.

The case centers on Apple’s policy that requires workers in its California retail stores to go through mandatory exit searches of any bags or personal devices to deter theft from the store. These searches last anywhere from a few minutes to 45 minutes. The main issue in the high court’s ruling centered on whether the waiting time Apple employees spent undergoing mandatory security checks falls within Wage Order 7-2011 of the California Industrial Welfare Commission. Wage Order 7 requires a minimum wage for all “hours worked,” and defines “hours worked” as time spent under an employer’s control during which they are “suffered or permitted” to work. The Supreme Court found that Apple employees were effectively under Apple’s control when they went through mandatory exit searches.

The Apple employees initially filed suit in 2013, seeking payment for about 90 minutes of unpaid work a week spent going through the exit searches. The trial court found in favor of Apple in that the time was not compensable on a motion for summary judgment. The workers appealed to the Ninth Circuit, and the appellate court asked the California Supreme Court to find the distinction between “hours worked” as defined in Wage Order 7 and unpaid mandatory security checks like Apple’s.

In its arguments, Apple relied on the Supreme Court’s 2000 ruling in Morillion v. Royal Packing Co. that found time spent traveling on buses required by the employer was compensable. The Court noted that Morillion addressed “compulsory employer-provided transportation to and from work.” Based on this, the Court rejected Apple’s argument that any employer-controlled activity must be unavoidably required to count as “hours worked.” The Court further denied Apple’s argument that workers could choose not to bring a bag to work and thereby avoid the time spent to get screened.

Lastly, the Court said its ruling could be applied retroactively and not prospectively. Therefore, employers should check their current policies and procedures to make sure they are compliant with the Court’s latest interpretation of the IWC wage orders.

For a printable PDF of this article, click here.

In September 2019, Seattle City Council voted to adopt a series of ordinances aimed at protecting hotel employees. These ordinances go into effect on July 1, 2020. The four separate ordinances include a range of rules that limit the square footage a housekeeping attendant can clean, mandate additional wages to cover health insurance costs, provide panic buttons for certain workers, and provide new regulations for retaining workers after a change in ownership.

Under the “Hotel Employees Safety Protections Ordinance” (SMC 14.26), a hotel must provide a panic button to each hotel employee assigned to work in a guest room or to deliver items to a guest room. Each hotel must also place a sign on the back of each guest room door titled “The Law Protects Hotel Housekeepers and Other Employees From Violent Assault and Sexual Assault.” The notice must state that the hotel provides panic buttons to all employees assigned to work in guest rooms, in legible font size of no less than 18-point. In addition, a hotel employer must develop a written policy against violent or harassing conduct by the guests and inform guests of this policy before or at the time of guest check-in. The ordinance further requires a hotel employer to take necessary safeguarding steps when it receives an allegation of violent or harassing conduct towards an employee.

The “Protecting Hotel Employees from Injury Ordinance” (SMC 14.27) limits the workload of hourly employees who clean hotel rooms at “large hotels.” A large hotel is defined as a hotel or motel containing 100 or more guest rooms. Under this ordinance, an employer is prohibited from requiring an employee to clean more than the maximum floor space in a workday that is at least 8 hours. The maximum floor space is defined as 4,500 square feet of guest room floor space. When a hotel employee cleans 10 or more rooms in a workday that is 8 hours or longer, the maximum floor space must then be reduced by 500 square feet for the 10th room cleaning and each cleaning thereafter. If more than one employee performs the room cleaning together, the square footage of the room is divided equally based on the number of employees cleaning the room. If an employee works fewer than 8 hours in a workday, the maximum floor space of 4,500 square feet is prorated according to the actual number of hours the employee spent cleaning rooms. Furthermore, an employee has the right to refuse a request from the hotel to clean more than the maximum floor space, and the employer may not take any adverse action against the employee for doing so. If an employee cleans more than the maximum floor space, the employer must pay the employee at least 3 times the employee’s regular rate of pay for the amount of time during the workday the employee spends cleaning rooms that exceed the maximum floor space.

The “Improving Access to Medical Care for Hotel Employees Ordinance” (SMC 14.28) requires employers to provide certain employees working in hotels with 50 or more employees with increased access to medical care. Employees covered by this ordinance are limited to hourly, non-supervisory employees who work for an average of 80 or more hours per month. Under this ordinance, covered hotel employers must make a monthly payment on behalf of each covered employee as follows and subject to annual adjustments based on the medical inflation rate:

  • $420 per month for an employee with no spouse, domestic partner, or dependents;
  • $714 per month for an employee with only dependents;
  • $840 per month for an employee with only a spouse or domestic partner; and
  • $1,260 per month for an employee with a spouse or domestic partner and one or more dependents.

Lastly, the “Hotel Employees Job Retention Ordinance” (SMC 14.29) requires employers to take specific actions for hourly, non-supervisory employees when a hotel with 60 or more guest rooms faces a change in ownership. When a hotel changes ownership, the ordinance requires the out-going hotel employer to provide a preferential hiring list to the incoming hotel employer within 15 days after the transfer. The out-going hotel must also post written notice of the change in ownership within 5 business days of the execution of the transfer documents. The incoming hotel employer then must keep the notice posted during any closure of the hotel and for 180 days after the hotel is open to the public under its new control. Further, the incoming hotel must maintain the preferential hiring list and hire from this list by seniority within each job classification for 180 days after the hotel is open to the public under the incoming hotel employer.

Seattle hotels should begin preparing now for the changes these ordinances provide for to ensure they are ahead of schedule and compliant come July 1, 2020. For more information or questions, contact your Stokes Wagner attorney.

For a printable PDF of this article, click here.

The temporary restraining order (“TRO”) which prevents the enforcement of AB 51 remains in effect until January 31, 2020. As a reminder, California’s AB 51 bars mandatory arbitration agreements in employment agreements. Click here for background on AB 51 and the challenges it faces.

On January 10, 2020, the U.S. District Court for the Eastern District of California heard oral argument from both sides as to whether the Court should enjoin the enforcement of AB 51 until the Court decides the challenge on the merits.

The U.S. Chamber of Commerce and other business coalitions reiterated that AB 51 violates the Federal Arbitration Act (FAA) by unlawfully applying different terms of contract law to arbitration agreements. Likewise, they maintained that the State of California is holding arbitration agreements to higher standards than other contracts through AB 51.

The State of California, in opposition, argued that AB 51 reaches beyond arbitration agreements and governs employers’ agreements with employees more generally, in that it could also apply to nondisclosure agreements and other agreements not under the auspice of the FAA. The State also called into question the Chamber’s standing to bring the challenge to AB 51.

In the minute entry from January 10, 2020, the Court granted the parties leave to file supplemental briefing to address issues of “jurisdiction, including standing, and the parties positions with respect to the severability of any provisions of AB 51, if the court grants the motion for preliminary injunction at least in part.” The State must submit supplemental briefing by January 17, 2020, while the Chamber of Commerce’s response is due by January 24, 2020. The court also modified the TRO to apply only to arbitration agreements covered by the FAA. The modified TRO will remain in effect until January 31, 2020.

For a printable PDF of this article, click here.

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.