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 Thursday, the California Supreme Court ruled that California’s “ABC” test for determining independent contractor status applies retroactively. As a result, employers may be held to a standard not even in effect at the time they made worker classification decisions. The Supreme Court in Vazquez v. Jan-Pro Franchising International, Inc. delivered a long-awaited opinion finding that the “ABC test” for independent contractor classification, adopted in its 2018 Dynamex decision, applies retroactively to all pending cases that arose before April 30, 2018. This new ruling will weigh heavily in currently pending misclassification lawsuits where the employer applied pre-Dynamex classification standards.

In April 2018, the Supreme Court adopted a three-part ABC test for applying an employee-status standard in the landmark case Dynamex Operations West v. Superior Court. Dynamex established a three-part “ABC Test” for determining whether a worker can properly be classified as an independent contractor. Under the ABC test, a worker is properly an independent contractor only if the employing entity establishes:

  • A. that the worker is free from the control and direction of the hirer in connection with the performance of the work;
  • B. that the worker performs work that is outside the usual course of the hiring entity’s business; and
  • C. that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The ABC test will now be applied to any pending lawsuits covering a time period prior to April 30, 2018. However, the decision does not toll any statute of limitations relating to the misclassification lawsuits that would allow purported misclassified employees to bring forth new lawsuits under the retroactive ruling. As such, the Supreme Court noted that in light of the fact that the Dynamex decision is nearly three years old, the retroactive application of the ABC test in practice will affect only a limited number of cases that are already pending.

The ABC test has been hotly contested since the Dynamex decision. In 2019, California lawmakers codified the ABC test into law in AB 5, which took effect at the start of 2020. The ABC test drastically narrows the circumstances in which employers may properly classify workers as independent contractors. Retroactive application of the ABC test also opens the door to misclassification lawsuits for past classification decisions made under the legal tests that existed before Dynamex so long as the statute of limitations has not yet expired. Misclassification lawsuits can also lead to steep penalties and damages, including under the Private Attorneys General Act and other provisions of the California Labor Code. Employers should take care to review their worker classifications to ensure compliance with the Court’s tougher standard under Dynamex.

For a printable PDF, click here.


On August 11, 2020, Nevada Governor signed Senate Bill No. 4 (SB 4) into law, introducing a myriad of new measures to enhance worker safety related to COVID-19 for employers in the hospitality industry. Specifically, employers will have to grapple with new mandatory cleaning standards, a response plan for testing, and paid time off for employees who are experiencing symptoms of COVID-19 or who have been exposed. The Department of Health and Human Services adopted regulations pursuant to SB4 on August 31, 2020, making the new measures effective immediately.

The new protocol requirements are required for all “public accommodations facilities,” defined as:

“a hotel or casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily or weekly basis.”

SB 4 also only applies to counties whose populations meet or exceed 100,000 people, and will apply “during any period in which a public health emergency due to SARS-CoV-2 has been declared by the Governor and remains in effect” and when the rate of positive COVID-19 test results for the applicable county exceeds 5% in any rolling 14-day period within the preceding 90 days, or on each day that the number of new cases in the county exceeds 100 per 100,000 residents under the same 14-day period.

SB 4 requires the director of the Department of Health and Human Services to adopt regulations within 20 days of the governor’s approval of three sets of protocols to limit the spread of COVID-19. First, facilities must establish a set of “standards for cleaning that are designed to reduce the transmission of SARS-CoV-2.” These standards include using cleaning products approved by the Environmental Protection Agency for use against coronavirus and regular cleaning of high-contact areas and items. Covered hotels are also prohibited from advising guests to decline in-room housekeeping during their stay. Employers must post a one-page summary of the standards adopted under the first set of protocols in conspicuous locations. The summary must also be provided to employees or a bargaining representative upon request.

Second, covered facilities must implement policies regarding other steps to help limit the transmission of coronavirus, other than cleaning. These include, but are not limited to, social distancing, hygiene, and personal protective equipment. More specifically, employers must encourage guests and employees to remain six feet apart, provide access to hand sanitizer, promote frequent hand washing, implement social distancing for breaks and workstations, and distribute face masks or other protective equipment to employees at no cost to them. Staff must also be trained “concerning the prevention and mitigation of SARS-CoV-2 transmission in the manner prescribed by the Director.”

Lastly, facilities must “establish, implement, and maintain a written SARS-CoV-2 response plan to monitor and respond to instances and potential instances of SARS-CoV-2 infection among employees and guests.” This includes designating a person to oversee the COVID-19 testing plan. Employees must also “check in every day to receive contact-free temperature measurement and review questions to screen for exposure to SARS-CoV-2.” Testing must be at no cost to the employee and may be performed on or off-site.

Under the testing plan, employees must be tested under four different circumstances:

  1. A new employee and/or an employee returning for the first time since March 13, 2020
  2. An employee known to have had close contact with a guest or employee diagnosed with COVID-19
  3. An employee has a reasonable belief or has been advised that they have been in close contact with someone with COVID-19
  4. An employee discloses that they are experiencing symptoms of COVID-19.

Employees who are tested for reasons 2, 3, or 4 are entitled to paid time off at the employee’s base rate of pay for up to three days to await testing and results as well as additional paid time off if documentation shows a delay exceeding three days in testing or receiving test results. The paid time off entitlement applies any time an employee is tested for reason 2, but only for the first instance an employee is tested for reasons 3 or 4. If an employee tests positive for COVID-19, the employee may take at least 14 days off work, and at least 10 of those 14 days must consist of paid time off. Paid time off benefits must not be deducted from any other paid time off provided by the employer, but may be deducted from any emergency paid sick leave provided under the Families First Coronavirus Response Act.

SB 4, largely highlighted business liability provision, also contains a myriad of requirements for hotels, casinos, and related facilities to quickly and efficiently adopt a variety of protocols once the Director passes related guidance. As the Department has made this effective immediately upon passage of the regulations on August 31st, covered employers should immediately review SB 4 in its entirety against their current policies and practices related to COVID-19 to determine what steps must be taken to come in compliance with SB 4.

For a printable PDF of this article, click here.


On June 15, 2020, the Supreme Court made its long-awaited decision in Bostock v. Clayton County, holding that Title VII protections expand to sexual orientation discrimination. In a landmark ruling, Justice Gorsuch, appointed by President Trump in 2017, delivered the majority opinion, in a move expanding beyond partisanship ideology. In a 6-3 opinion, the Court found that an employer who fires an individual merely for being gay or transgender violates Title VII under the definition of “sex.” Although many states have already addressed this gap in the law in their own anti-discrimination laws, the ruling resolves a circuit split amongst the federal Courts of Appeals and closes a blind spot in federal law.

In his opinion, Justice Gorsuch examined the 1964 law’s adoption and key statutory terms, notably “sex” and what Title VII says about. Looking at the ordinary public meaning of Title VII’s language in 1964 at the time of adoption, the opinion notes that Title VII has a straightforward rule, namely, an employer violates Title VII when it intentionally fires an individual employee based in part on sex. As such, if changing the employee’s sex would change the employer’s decision, the employer has committed a statutory violation of Title VII.

Therefore, the majority found: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The Court also found support based on its three leading precedents in Phillips v. Martin Marietta Corp. (400 U.S. 542 (1971)); Los Angeles Dept. of Water and Power v. Manhart (435 U.S. 702 (1978)); and Oncale v. Sundowner Offshore Services, Inc. (523 U.S. 75 (1998)). First, it is irrelevant what an employer might call its discriminatory practice, or what else may motivate it. Second, the employee’s sex does not need to be the sole or primary cause of the employer’s adverse action. And lastly, an employer cannot escape liability by showing that it treats males and females comparably as groups because Title VII looks specifically at the action towards an individual rather than groups.

The historic ruling comes just days after the Trump administration announced its decision to roll back on transgender protections under the Affordable Care Act. The U.S. Department of Health and Human Services, on June 12, 2020, revised ACA provisions made by the Obama administration. The HHS stated it would not expand the definition of sex discrimination beyond “the plain meaning of the word sex as male or female and as determined by biology” to include gender identity. Unless a lawsuit is filed and a ruling is made, the regulation will go into effect 60 days after it is published in the Federal Register.

The revised ACA provisions will almost certainly be challenged, especially in light of the Supreme Court’s holding today. The difference in opinions, however, between the Trump administration and the Supreme Court’s ruling in Bostock demonstrates the battle over how the word “sex” can be interpreted that has long been debated in federal and state courts. As the Supreme Court has now clearly noted, discriminating against a person for being gay or transgender is inherently based on sex. Not only is this best practice, but it demonstrates the Supreme Court’s institutional focus on what the law says and stands for, not merely what political parties dictate. Therefore, employers should immediately make sure that their practices and policies are in line with the new precedent.

For a printable PDF, click here.


On Monday, May 4, 2020, the American Hotel & Lodging Association (“AHLA”) announced healthy and safety guidelines regarding hygiene and cleanliness standards in line with the U.S. Centers for Disease Control and Prevention (“CDC”). The AHLA guidance comes under the direction of its advisory council consisting of 25 industry leaders, including Hilton, Marriott, Hyatt, and Omni. The “Safe Stay” program aims to set the standard for hotel hygiene standards post-pandemic and boost consumer confidence per CDC and other public health authorities’ guidance.

Notably, the AHLA guidance instructs employers to conduct COVID-19 safety and facility sanitation protocols training, with more comprehensive training for employees with frequent guest contact (e.g., housekeeping, food and beverage, and hotel operations). The guidance also suggests that all cleaning products and protocols include EPA-approved disinfectants that meet the CDC requirements for effectiveness against viruses and bacteria and frequent cleaning of public and communal areas.

In addition, the guidelines require that a hotel, at a minimum, follow CDC guidelines regarding employee health concerns and instruct employees to self-isolate until they are symptom-free for at least 3 days. Well-being checks of employees are also encouraged, as allowed by law. Employers must report confirmed cases to local health authorities and place health and hygiene reminders in the front and back house. Signage should remind employees the proper way to wear, handle, and dispose of masks; use gloves; wash hands, and avoid touching their faces.

Lastly, the Safe Stay guidelines state that guests should be advised to practice physical distancing of at least 6 feet from other groups of people not traveling with them. Likewise, seating at pools or beaches should be placed at least six feet apart. Front desk, concierge, and parking services should also practice social distancing and use any available technology, such as contactless payment, to minimize contact with the guests.

The full program is available here. Hotels planning their re-opening should ensure their cleaning and safety standards meet the minimum provided by the CDC. If you have questions, contact your Stokes Wagner attorney.

For a printable PDF of this article, click here.


March 27, 2020 City Council Ordinance

On March 27, 2020, Los Angeles City Council passed an ordinance providing for supplemental paid sick leave to employees who perform work within the geographic boundaries of the City of Los Angeles. This ordinance applied to employers with 500 or more employees nationally. Full-time employees or those who work at least 40 hours per week are entitled to 80 hours based on their average two-week pay over the period from February 3 to March 4, 2020. Part-time employees are also eligible for an amount no greater than the employees’ average two-week pay over the same period. However, the amount of paid leave is capped at $511 per day and $5,110 in the aggregate.

An employee is entitled to the paid supplemental sick leave if:

  • The employee takes time off because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  • The employee takes time off work because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  • The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
  • The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health official or other public official’s recommendation.

An employer cannot require a doctor’s note or other documentation from the employee wanting to take the paid leave.

An employer does not need to provide any additional paid leave if an employer already provided employees with paid leave between March 4, 2020 and the present that was not already accrued. The supplemental paid leave under this ordinance expires on December 31, 2020.

April 7, 2020 Mayor Public Order

Los Angeles Mayor Eric Garcetti passed a Public Order on April 7, 2020, amending the definition of employer under the City’s ordinance to include employers with either 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States.

The Public Order also clarifies that an eligible employee must be unable to work or telework because of the listed qualifying reasons. Furthermore, if an employee takes leave to care for a child or senior family member, the employee must also be unable to secure a reasonable alternative caregiver.

Mayor Garcetti’s Order also adds exemptions to the supplemental paid leave for closed businesses and those employers who already provide “generous” paid leave. To qualify for the closed business exemption, the business must have been closed or not operating for a period of 14 days or more due to a city official’s emergency order related to COVID-19. Additionally, if an employer has a paid time off policy that provides for a minimum of 160 hours of paid leave annually, the employer is exempt from having to provide any supplemental leave to employees that receive 160 hours annually under the “generous leave” exemption.

April 11, 2020 Rules and Regulations

The City subsequently published Rules and Regulations regarding the Public Order on Supplemental Paid Sick Leave on April 11, 2020, clarifying that the definition of eligible employee is any employee who performs any work within City boundaries. This applies regardless of whether the employee’s regular workplace is outside of the City.

The rules also explain that for purposes of determining whether an employer is covered under the employee threshold, the number of employees is determined from the previous calendar year and includes full-time, part-time, temporary or seasonal employees, and workers from a temporary employment agency. Furthermore, a worker that worked in multiple locations will be counted as an employee if they performed any work within the City’s geographic boundaries in the previous calendar year. The rules provide two examples to illustrate:

  • A company has one location inside the City of Los Angeles and one location outside the City boundaries. In the previous calendar year, the company averaged 234 employees. The paid leave would not apply to this employer or its employees.
  • An employer has 3000 employees nationwide and one location in the City with 20 employees. The 20 employees at the location within the City would be eligible for paid leave.

When calculating an employee’s rate of pay for the paid leave, overtime premiums are not considered. However, the base rate before the premium for any overtime hours is included. Additionally, the total number of hours for a part-time employee should be determined by adding the number of hours worked in four consecutive weeks from the period of February 3 to March 4, 2020, and dividing that total by 2.

The rules add further detail to the exemptions. For an employer to qualify for the closed business exemption, the business must be closed or not operating for 14 or more consecutive days any time on or after March 4, 2020. Additionally, with regard to the generous leave exemption, paid holidays and paid bereavement leave do not count toward the 160-hour minimum.

As the ordinance and Public Order also state, an employer cannot require documentation of the reasons an employee needs to take the leave. Likewise, an employer also cannot require an employee to give a description of the illness or condition related to the employee’s need for leave. However, an employer may require an employee to give the reason for taking leave (e.g., child care, quarantine, caring for a family member, or vulnerable medical condition) for record-keeping purposes.

The rules also state that employees may also choose to use the leave periodically and need not use it consecutively. Under the Rules and Regulations, the order is now in effect until two calendar weeks after the local state of emergency for COVID-19 is lifted.

Lastly, the rules note that the employer should retain documents showing the paid leave provided to employees and the requests for supplemental paid sick leave. These records should include the employee’s name, date, the reason for leave, and whether or not the leave was approved (and if not, the reason for denial).

For a printable PDF of this article, click here.


Los Angeles Mayor Eric Garcetti issued a Public Order on April 7, 2020, mandating supplemental paid sick leave requirements for large employers within Los Angeles and nationwide. This Order expands on the previous ordinance passed by City Council providing supplemental paid sick leave to employers with 500 or more employees nationwide. Please see our previous article for more information on the City Council ordinance.

For purposes of the Order, eligible employees must have been employed with the same employer from February 3 to March 4, 2020, and perform any work within the geographic boundaries of the City. The Order applies to an employer that has either: (1) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States.

The Order provides for eighty (80) hours of supplemental paid sick leave for full-time employees or employees who work at least forty (40) hours per week who are unable to work or telework because:

  1. The employee takes time off due to COVID-19 infection or because the employee is required to isolate or self-quarantine by order or recommendation from a public health official or healthcare provider.
  2. The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system.
  3. The employee needs to care for a family member who is required to isolate or self-quarantine by order or recommendation from a public health official or healthcare provider.
  4. The employee needs to care for a family member whose care provider temporarily ceases operations in response to a public health order or recommendation, and the employee is unable to secure an alternative caregiver.

The amount of paid leave is based on the employee’s average two-week pay from February 3, 2020, to March 4, 2020. An employee who is not full-time and works less than forty (40) hours per week is entitled to supplemental paid sick leave in an amount no greater than the employee’s average two-week pay from February 3, 2020, to March 4, 2020. However, the paid sick leave is limited to $511 per day and $5,110 in the aggregate.

Employers may not require a doctor’s note for the use of supplemental paid leave and must grant the leave upon oral or written request from the employee. However, employers are entitled to offset the amount of paid sick leave required under the Order if the employer provides the same or greater amount of paid leave to an employee for any of the same reasons or in response to an employee’s inability to work because of COVID-19 on or after March 4, 2020. This does not include any previously accrued paid time off, such as vacation or other sick time.

Los Angeles employers should review their current policies related to COVID-19 or create one relating to the provisions of this Order to ensure proper compliance. If you have questions, contact Stokes Wagner. For a printable PDF of this article, click here.


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:

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.