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California Workplace Law Blog

Labor Code Sections 203 and 1190.2 Amended

The California Legislature has returned from its summer recess, with a fairly large number of employment bills to consider before the August 31st deadline.  Although the majority of bills introduced in 2014 remain pending, the Legislature hit the ground running passing several bills on to California Governor Jerry Brown who has either vetoed or signed them into law.

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Cal OSH Board Proposes Revisions to Heat Prevention Regulations

On August 8, 2014, the California Occupational Safety and Health Standards Board (“Cal OSH Board”) proposed revisions to its Heat Prevention Regulations at Title 8, Section 3395 (“Section 3395”).   According to the Cal OSH Board, the revisions are aimed at improving worker safety in all outdoor places of employment and reducing the incidence of heat illness.  Although the proposed revisions have not yet been adopted, outdoor employers should closely watch the Board’s upcoming actions because the revisions may require them to invest significant resources to change their programs, training, and approach to the prevention of heat illness.

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Proposed Amendment to Labor Code: Three-Year Statute of Limitations on Liquidated Damages Claim for Failure to Pay Minimum Wage

Last week, California’s legislature submitted a bill for the Governor’s approval, Assembly Bill 2074, which would amend Labor Code section 1194.2 dealing with the provision of liquidated damages arising out of an employer’s failure to pay minimum wage.

Employees who believe their employer did not pay them all of their wages may bring a civil lawsuit seeking several forms of damages, including liquidated damages for failing to pay minimum wage.  Liquidated damages under Labor Code section 1194.2(a) are comprised of “an amount equal to the wages unlawfully unpaid and interest thereon” (i.e., on top of the unpaid wages and penalties, employees may obtain another set of damages equivalent to the unpaid wages plus interest).

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California Legislature to Decide Mandatory Paid Sick Leave Bill

This week the California Legislature returned from its final month-long break of the current legislative session. While the future of several workplace-related bills will be decided in the coming weeks, perhaps none are more significant to California private sector employers than AB 1522.  If passed, AB 1522 creates the “Healthy Families, Healthy Workplaces Act of 2014,” which requires employers to provide paid sick days for an employee who works for thirty (30) or more days in a calendar year.

Similar bills mandating paid sick leave were passed by the Assembly Committee on Judiciary in 2008, 2009, and 2011, but each was subsequently held in suspense in the Appropriations Committees. It is believed that AB 1522  has a greater chance of being passed as it is more limited than its predecessors insofar as it provides employees with a minimum of only 24 hours/three days of paid sick leave rather than the 72 hours/nine days there were provided under the previous three proposals.

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Federal Law Does Not Preempt State Unfair Competition Claim, California Supreme Court Rules

A lawsuit against a trucking company for allegedly misclassifying drivers as independent contractors under California’s Unfair Competition Law (“UCL”) was not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”), the California Supreme Court has ruled unanimously. P. ex rel. Harris v. Pac Anchor Transp., Inc., No. S194388 (Cal. July 28, 2014). The Court found the lawsuit did not relate to the company’s “price, route or service,” the concerns of the federal law. Therefore, the Court allowed the State of California’s lawsuit for unfair competition arising from the company’s alleged violations of California’s labor and insurance laws to proceed. Continue Reading

It’s Time to Consider Updating Your Pregnancy Disability Leave Policies

Last month, the Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance (“Guidance”) on pregnancy discrimination in the workplace and related issues.  In its first update in over thirty (30) years, the Commission clarified how Title VII and the Americans with Disabilities Act (“ADA”) interact to protect pregnant employees.  If you are an employer in California, you may be thinking, “Great. Another change in the law and now I am stuck with trying to figure out how these changes apply to my business. Now what do I need to do to make sure the policies and procedures in our handbook are up to date?”

The new guidelines prohibit employers from forcing pregnant workers to take leave and acknowledge that “employers may have to provide light duty for pregnant workers.” After childbirth, lactation is now covered as a pregnancy-related medical condition.

Also, it’s not just women who will benefit.  The guidelines say that when it comes to parental leave, “similarly situated” men and women must be treated on the same terms.

Here are some tips to consider when reviewing and updating your handbooks:

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Arbitrator, Not Court, Decides Whether Arbitration Agreement Applies to Class Claims, California Court Rules

Whether the parties to an arbitration agreement agreed to class arbitration is a question for the arbitrator, not the trial court, the California Court of Appeal has ruled, reversing an order dismissing class claims alleging violations of California’s Fair Employment and Housing Act and Unfair Competition Act. Sandquist v. Lebo Automotive, Inc., No. B244412 (Cal. Ct. App. July 22, 2014). Continue Reading

Federal Law Does Not Preempt State Unfair Competition Claim, California High Court Rules

In a case alleging misclassification of an independent contractor in the transportation industry, the California Supreme Court has found that the California unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (“UCL”) was not preempted by the Federal Aviation Administration Authorization Act of 1994 (Pub. L. No. 103-305 (Aug. 23, 1994) 108 Stat. 1569) (“FAAAA”). In P. ex rel. Harris v. Pac Anchor Transportation, Inc. (SC S194388 7/28/14), the Court held that California UCL was not preempted where a trucking company’s alleged violations of state labor and insurance laws did not relate to the employer’s “price, route or service,” the concerns of the federal law.

The Court noted the FAAAA was passed originally so “States would not undo federal deregulation with regulation of their own.” Therefore, the FAAAA included a pre-emption provision. The Court, however, rejected the employer’s argument that the FAAAA facially preempted all California UCL claims and, specifically, the case at issue. The Court ruled:

the FAAAA embodies Congress’s concerns about regulation of motor carriers with respect to the transportation of property; a UCL action that is based on an alleged general violation of labor and employment laws does not implicate those concerns.

The misclassification of workers can lead to widespread liability in many areas under California and federal law. Employers should consult with counsel when making decisions with respect to independent contractor status.

Jackson Lewis Lawyers Selected to the 2014 Northern California Super Lawyers + Rising Stars Lists

National workplace law firm Jackson Lewis P.C. congratulates the following Northern California attorneys for being honored by their peers:

San Francisco Managing Shareholder Fraser A. McAlpine, San Francisco Shareholders Mark S. Askanas, Dylan B. Carp, Cara M. Ching-Senaha, Bradley W. Kampas, Patrick C. Mullin, Robert M. Pattison and Mark S. Ross along with Sacramento Managing Shareholder David S. Bradshaw were selected to the 2014 Northern California Super Lawyers listEach year no more than  5% of attorneys in the state are selected to receive this honor.

San Francisco Shareholder Punam Sarad, San Francisco Associates Joshua A. Kuns, Keahn N. Morris and David T. Wang and Sacramento Associates Amy S. Geiser and Erika Barbara Pickles were selected to the 2014 Northern California Rising Stars list.  Each year, no more than  2.5% of attorneys in the state are selected to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding  lawyers from more than 70 practice areas that have attained a high degree of  peer recognition and professional achievement. The annual selections are made  using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of  exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and  newspapers across the country.


You’re Invited to the Global Talent and Managing the 21st Century Workforce Conference on July 30 in Silicon Valley

Jackson Lewis’ Heath Havey will be speaking  on “Cross-Border Employment Law Issues: Effective Use of International Employment Counsel” at the July 30, 2014 Global Talent and Managing the 21st Century Workforce Conference in Silicon Valley at Stanford University.

Whether you are the CEO, CMO, CHRO, VP of HR, HR practitioner, head of a function or department, a management consultant, in-house mobility manager, realtor relocation director, or an entrepreneur, you likely have dealt with and/or managed people or processes related to international business and going global.

Some questions the conference seeks to answer include:

  • How will talent be acquired, from where?
  • How will the talent be trained and developed?
  • How will it be deployed and will the relocation benefits serve ‘leadership development’ or will the relocation create additional problems?
  • What about ‘succession planning’ and the ‘next assignment’ utilizing the new skills developed from the relocation experience?

We invite you to participate and join the conversation. We’re pleased to announce that Jackson Lewis has a small handful of free passes available on a first-come, firse-served basis and can extend a heavily discounted registration  to interested parties when those passes are claimed. E-mail Rachel De Dora at rachel.dedora@jacksonlewis.com to inquire about a conference pass.

Please visit the conference website for more information: http://www.globalbusinessnews.net/conf.asp?cid=306