Stokes Wagner Law Firm
Stokes Wagner

This week, the U.S. Supreme Court will hear a trio of cases asking whether federal law protects gay and transgender workers from discrimination. Currently, Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against workers “on the basis of…sex” among other protected traits. The Court’s ruling on these cases will determine whether “sex” includes sexual orientation and gender identity.

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It’s no secret that California is typically viewed as the most employee-friendly state in the country. New employee-favored laws are passed so quickly that employee handbooks can be rendered outdated before they go to print. Employers who have found themselves on the wrong end of a wage and hour case can attest to the fact that one alleged error, when applied to each employee, can be devastating. On top of that, one Labor Code violation often leads to another violation, and so on and so on.

At issue in Naranjo v. Spectrum Security Services, Inc., a decision issued on September 26, 2019, was the question of whether employees who are entitled to a meal or rest break premium (after denial of a meal or rest period in violation of Labor Code § 226.7) may also recover derivative penalties under Labor Code § 203 (waiting time penalties) and § 226 (inaccurate wage statements).

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The U.S. Department of Labor released its highly anticipated final rule governing the new salary threshold for the “white collar” overtime exemptions. Effective January 1, 2020, the final rule raises the salary threshold for exempt white-collar workers to $35,568 per year.

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Today, on September 18, 2019, California Governor Newsom signed Assembly Bill 5 (AB-5), a landmark piece of legislation that codifies the ABC test and will significantly limit most employers’ use of independent contractors.

Last year, in April 2018, the California Supreme Court rocked the State’s labor and employment landscape with the decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (“Dynamex”). The court’s decision changed the way employers classified independent contractors from the longstanding Borello test (an eleven-factor test with no single factor being determinative of a workers’ classification) to a much stricter “ABC” test.

Starting on January 1, 2020, the ABC test becomes state law. California will consider a person providing labor to be an employee of a hiring entity unless:

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Are you familiar with PAGA? Do you have a PAGA claim for unpaid wages filed against you right now? If yes, this recent California Supreme Court case may apply to you. (ZB, N.A. v. Superior Court).

What is PAGA? In a nutshell, the Private Attorney General’s Act (“PAGA”), is a California state statutory scheme within the Labor Code that allows aggrieved employees to step into the shoes of the State and enforce California’s Labor Code provisions by filing lawsuits against their employer to recover civil penalties. PAGA is considered a representative action, as an aggrieved employee is suing on behalf of both themselves and their similarly situated colleagues. PAGA claims may not be arbitrated even if an employee signs an arbitration agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348).

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Last month, the United States Court of Appeals for the Ninth Circuit certified two questions of state law to the California Supreme Court:

  1. Does the absence of a formal policy regarding meal and rest breaks violate California law?
  2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?

The answers to these questions could profoundly affect the way employers in the state notify employees and keep records of meal and rest breaks.

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California employers now have until January 1, 2021, to provide sexual harassment training to their non-supervisory employees.

Last year, California passed SB 1343, which expanded sexual harassment training requirements for employers. All employers with five or more employees were required to provide sexual harassment training to non-supervisory (or “hourly”) employees by January 1, 2020. These employers are now required to provide sexual harassment training to employees as follows:

• Supervisors/Managers must receive two hours of training; • Non-supervisory employees must receive one hour of training.

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A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate. In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eight Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

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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.

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On August 27, 2019, the Santa Monica City Council voted unanimously to pass an ordinance providing certain protections for hotel workers, with particular focus on Room Attendants, working in the city of Santa Monica. The City Council heard lengthy public comment on both sides of the proposed ordinance, with Unite Here’s Local 11 being both the most numerous and the most outspoken in favor of the ordinance.

At the close of public comment, changes were made to the ordinance as initially proposed. These changes, in large part, only made the ordinance more restrictive on hotel employers. The following is a summary of the ordinance’s requirements. All the following requirements will become effective on January 1, 2020, unless otherwise specified.

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