Stokes Wagner Law Firm
Stokes Wagner

The National Labor Relations Act (NLRA) protects the employee right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This includes not only the right to support a union, but also simply the right of employees to converse among themselves on issues affecting their employment. Consequently, any workplace rule explicitly infringing on this right, as well as any rule applied so as to cause such infringement, can be held unlawful. For example, if employees regularly get together before or after work, during which gripes and grievances (or unions) can be discussed, a workplace rule restricting these gatherings will generally be held unlawful.

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The #METOO movement took social media by storm in October 2017 as a means of illustrating the prevalence of sexual assault, harassment, and misconduct, particularly in the workplace. As the conversation around the #METOO movement swirls, employers have begun to assess how the movement affects their policies. Employers should stick to a simple three-part strategy: (1) promulgate a clear policy; (2) thoroughly investigate complaints; and (3) always respond accordingly and swiftly.

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On Aril 6, 2018, the U.S. Department of Labor announced amendments to the Fair Labor Standards Act (“FLSA”) § 3(m).

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In November 2017, the Ninth Circuit (covering California, Washington, Oregon, Nevada, Hawaii, Alaska, Idaho, Arizona, Montana) decided that the Fair Labor Standard Act’s (“FLSA”) hourly minimum wage requirement applies to weekly per-hour averages rather than actual per-hour pay. This means that the appropriate way to determine minimum wage compliance under the FLSA during any workweek is by calculating the pay earned during the entire workweek, rather than the pay earned in each individual hour of the workweek.

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The 2nd Circuit, covering Connecticut, New York, and Vermont, has revived a sex bias claim brought on behalf of Donald Zarda, a deceased skydiving instructor who was allegedly fired for telling a client he was gay. As an instructor at Altitude Express, Zarda sometimes mentioned his orientation in order to help female clients feel more comfortable when jumping, as they would be tied physically close to him during jumps. Zarda was fired after a boyfriend of one female client complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda denied anything inappropriate and alleged that his dismissal was entirely because he said he was gay.

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On-call employees of fast food chain Yoshinoya claim they are owed reporting time pay when they call in for a shift but are not put to work. A L.A. Superior Court judge recently ruled that the plaintiffs may pursue their claims. This putative class of kitchen and cashier “on-call” employees call two hours before their scheduled shift to find out whether they are needed to work. If they fail to call in or do not show up for work when needed, they may face discipline. Plaintiffs claim that they are entitled to reporting time pay when they call in but are not put to work, even though they are not required to physically report to work.

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California’s New Parent Leave Act (S.B. 63), which requires small business employers (20-49 employees) to provide employees with 12 weeks of unpaid, job-protected parental bonding leave went into effect on January 1, 2018.

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AB 450 – ICE Raids/Audits

April 30, 2018

Category: Legal Updates

California’s “Immigrant Worker Protection Act” (“AB 450”) went into effect on January 1, 2018. This Act prohibits California employers from allowing an ICE agent to search a worksite by an ICE agent without proper, legal documentation. Employers may not provide ICE agents access to employee records without a subpoena or warrant, with the exception of Form I-9’s and other documents for which the employer receives a Notice of Inspection.

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In July 2016, Santa Monica enacted two minimum wage ordinances, one specific to hotel workers (the “Hotel Workers Living Wage Ordinance”), and the other to any employees of an employer in Santa Monica (“Minimum Wage Ordinance”).

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On January 18, 2018, California’s Department of Industrial Relations Occupational Safety & Health Standards Board, approved a proposed regulation requiring hotel employers to maintain “an effective, written, musculoskeletal injury prevention program (MIPP) that addresses hazards specific to housekeeping.”

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