On December 14, 2015, the US Supreme Court issued its opinion in DirectTV v. Imburgia, reversing a California Court of Appeal’s refusal to enforce a consumer arbitration agreement containing a class action waiver. The DirectTV case is yet another favorable Supreme Court case supporting the enforceability of arbitration agreements and class action waivers, despite California courts’ repeated attempts to find ways to invalidate the enforceability of these agreements on their terms.
In Prue v. Brady Company, the California court held that a plaintiff who suffered a work-related injury and subsequently was fired stated a valid legal claim against the employer for wrongful termination in violation of public policy. The employer argued that the plaintiff’s claim was invalid because it effectively was a Labor Code section 132a retaliation claim that could only be brought before the Workers’ Compensation Appeals Board, not in court. The court disagreed, reasoning that the plaintiff adequately alleged that he was wrongfully terminated for having a disability, in violation of the public policy of the Fair Employment and Housing Act, and therefore the claim was not barred by the doctrine of workers’ compensation exclusivity. The court also held that a wrongful termination in violation of public policy claim is governed by a two-year statute of limitations and not by the statute of limitations applicable to FEHA claims. This decision confirms that employees who claim they have been fired for reasons relating to a work compensation injury can sue their employer in court and seek punitive damages and are not limited to filing Labor Code 132a claims before the Workers’ Compensation Appeals Board.
If you are in industries with cheerleaders, grocery workers or truck drivers there are additional new laws you should contact us about.
This is also your reminder that your employee handbook should be reviewed and revised for any changes in the law or your company policies this last year. Contact the attorneys at Merhab Robinson, Jackson & Clarkson to revise and update company handbooks and agreements to ensure compliance with these new laws.
The California Legislature enacted a number of new bills that become effective in 2015. Most notable of the legislation passed is California’s new paid sick leave law. Eligibility for the paid sick leave commences July 1, 2015, while the posting and notice requirements are effective January 1, 2015. Under the new law, all employees who have worked 30 hours or more accrue paid sick leave at a rate of one hour of leave for every 30 hours worked. This includes temporary, part-time, and seasonal employees who work 30 or more days within a year from the date they are first hired. Paid sick day must accrue at a rate of no less than one hour for every 30 hours worked. An employer can limit an employee’s use of paid sick days to 3 days (24 work hours) per year. An employee is entitled to use accrued sick days beginning on the 90th day of employment. Employers are prohibited from discriminating or retaliating against an employee who requests paid sick days. Additionally, employers must satisfy specified posting and notice and recordkeeping requirements, and must keep sick pay records for 3 years.
AB 1660 expands the definition of national origin discrimination in California’s Fair Employment and Housing Act (FEHA). It makes it a violation of FEHA for an employer to discriminate against an individual because he/she holds or presents a driver’s license issued to undocumented persons who can submit satisfactory proof of identity and California residency. Under the new law, an employer violates FEHA by requiring a person to present a driver’s license, unless possessing a driver’s license (a) is required by law or (b) is required by the employer and the employer’s requirement is otherwise permitted by law.
AB 2617 addresses the current arbitration laws. The new law prohibits the waiver of afforded under California civil rights laws in arbitration agreements or pre-litigation settlement agreements as a condition of entering into a contract for the provision of goods or services, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Attorney General or any other public prosecutor, or law enforcement agency, the Department of Fair Employment and Housing, or any court or other governmental entity. The law also prohibits businesses from refusing to contract with individuals who refused to waive such legal rights.
AB 2074 amends Labor Code section 1194.2, in that it now allows an employee who alleges state minimum wage violations to recover liquidated damages in an amount equal to the wages unlawfully unpaid with interest at any time before the expiration of the statute of limitations on the underlying wage claim(s).
AB 1723 expands the penalties, restitution and liquidated damages available for the Labor Commissioner to pursue on an employee’s behalf. It authorizes the Labor Commissioner in administrative actions to seek waiting time penalties against employers pursuant to Labor Code section 203. They must investigate in order to prove that the failure to pay wages of a resigned or discharged employee was willful. Prior to this new law, this right was only available to employees in civil actions.
AB 2074 states that a lawsuit seeking to recover liquidated damages for minimum wage violations can be filed any time before the expiration of the statute of limitations that applies to the underlying wage claim, which is three years.
AB expands the laws surrounding immigration-related retaliation. An employer is prohibited from discharging or discriminating, retaliating, or taking adverse action against an employee because the employee updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document. The civil penalty for such unlawful immigration-related retaliation is up to $10,000, which would be awarded to the employee who suffered from the violation. Employers are also prohibited from and penalized for filing (or threatening to file) a false complaint under any state or federal agency.
AB 1443 amends Government Code section 12940 to extend all the FEHA anti-harassment and anti-discrimination protections to unpaid interns.
The new “Child Labor Protection Act of 2014” allows for an award of treble damages if a minor is discriminated against in the terms or conditions of his/her employment because he/she filed a claim or civil action alleging a Labor Code violation that arose during minority. The statute of limitations for child labor violations is tolled until the child reaches 18 years of age. Additionally, civil penalties for a violation involving a minor 12 years of age or younger are increased to between $25,000 and $50,000 for each violation. As child labor law rules vary upon the particular age of the minor and the particular job involved, employers should always double-check the applicable restrictions when hiring any individual younger than 18 years of age.
AB 2053 requires employers that are subject to the mandatory sexual harassment prevention training requirement for supervisors (employers with at least 50 employees) to include a component on the prevention of “abusive conduct,” beginning January 1, 2015. The law defines “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. [It] may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” This new law does not mean that an employee can sue for abusive conduct in the workplace unless, of course, the conduct becomes discrimination or harassment against a protected class. The law only requires training on prevention of abusive conduct.
A new measure increases employer responsibilities in the event of a data breach. AB 1710 requires a business that owns, licenses, or maintains personal information about a California resident to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal information from unauthorized access, destruction, use, modification, or disclosure. If the person or business providing the notification of a data breach was the source of the breach, it requires that the person or business offer to provide appropriate identity theft prevention and mitigation services to the affected person at no cost for not less than 12 months if the breach exposed or may have exposed specified personal information.
AB 1897 creates a new law that requires that client employers and labor contractors share all civil liability and civil legal responsibility for payment of wages and workers’ compensation obligations to workers supplied by a labor contractor. Client employers are prohibited from shifting legal duties or liabilities under workplace safety provisions to labor contractors. Now, because of this new section, a company will be deemed jointly liable for certain violations along with its third-party labor contractor, regardless of the amount of actual control that the company exerts over contracted, leased or temp workers assigned to it. The new statute provides exemptions for specified nonprofit, labor, and motion picture payroll services organizations, and third parties engaged in an employee leasing arrangement. The new requirements do not apply to employers who have fewer than 25 employees or who hire fewer than 5 employees from the labor contractor.
SB 1360 amends section 226.7 of the Labor Code to confirm that recovery periods are counted as “hours worked” for which there shall be no deduction from an employee’s wages.
Important Case Laws:
In Cochran v. Schwan’s Home Serv., Inc., Labor Code Sec. 2802 (which requires employers to reimburse employees for expenses incurred at work), is interpreted to include a “reasonable percentage” of the employee’s cell phone bill. To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and that he or she was not reimbursed. The case does not explain how to calculate a reasonable percentage, and it does not specify whether it extends to a portion of the cost of the phone itself.
In Peabody v. Time Warner Cable , the Court held that an employer may not attribute commission wages paid in one pay period to other pay periods to satisfy California’s compensation requirements. Each pay period alone must satisfy all of California’s compensation rules, including minimum wage, and the overtime exemption requirements.
In December 2014, the NLRB issued its Purple Communications, Inc . decision in protecting employees’ right to engage in “concerted activity” using an employer’s email system. The case stands for the rule that an employer cannot ban all “nonwork-related” use of email and considers email the new “water cooler” conversations. During non-work hours, employees must have the right to engage in “concerted activity” using their work e-mail address.
In Busk v. Integrity Staffing Solutions, Inc. , the U.S. Supreme Court overruled Ninth Circuit Court of Appeals and ruled that hourly employees who were required to undergo an anti-theft security check at the end of their warehouse shift should do not need to be compensated for their time spent waiting in line.
Employers should have their employment policies and practices reviewed to make sure personnel policies and handbooks are up to date and in compliance with the 2015 labor laws in California. Contact the attorneys at Merhab Robinson, Jackson & Clarkson to revise and update company handbooks and agreements to ensure compliance with these new laws.