In December 2021, the U.S. Supreme Court agreed to hear arguments in Viking River Cruises v. Moriana (Viking). The question presented in Viking is whether the Federal Arbitration Act (FAA) requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including representative claims under California’s Private Attorneys General Act (PAGA).

This case arose out of an action in California state court in which an employee had previously signed an arbitration agreement with her employer, Viking River Cruises, that included a waiver to bring or participate in representative actions including under PAGA. Plaintiff filed suit in state court, and both the state court and the California Court of Appeal relied on the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles LLC, to decline to enforce the representative action waiver and deny compelling individual arbitration of the PAGA claim. The California Supreme Court declined to consider the case.

On March 30, 2022, the U.S. Supreme Court heard oral arguments in Viking.  Viking River Cruises’ arguments focused on U.S. Supreme Court precedent establishing the foundational principle that when parties agree to resolve their disputes by bilateral arbitration those agreements are fully enforceable under the FAA and preclude class or collective actions.  Viking River Cruises argued that PAGA actions have many of the same attributes as class actions and collective actions, particularly the notion that the plaintiff seeks to amass and adjudicate alleged violations of the California Labor Code of a large number of other employees.  Viking River Cruises argued that such actions are inconsistent with the parties’ agreement to arbitrate claims bilaterally on an individual basis, thereby triggering preemption under the FAA.

Viking River Cruises faced the most resistance from Justices Breyer, Kagan, and Sotomayor, who asked the bulk of the questions during arguments.  These Justices seemed troubled that by agreeing to bilateral arbitration a plaintiff would be excluded not only from arbitrating a PAGA claim but also from bringing it to court.  Justices Kagan and Sotomayor specifically inquired whether this would effectively eliminate the State of California’s chosen mechanism for enforcing compliance with its Labor Code.

Where the U.S. Supreme Court ultimately lands on this issue will have important consequences on employers in California.  As Viking River Cruises noted in its closing remarks during oral argument, an average of “17 PAGA complaints are filed every day.”  A decision is expected by July 2022.

Jackson Lewis will continue to track cases affecting employers in California and around the nation. If you have questions about PAGA or arbitration agreements, reach out to the Jackson Lewis attorney with whom you regularly work.

Employers should have a comprehensive plan regarding sexual harassment prevention in the workplace, which includes training for all employees. Under current California law, employers with five or more employees are required to provide two hours of sexual harassment prevention training to supervisors and managers and one hour of sexual harassment prevention training to non-supervisory employees. All training must take place in a classroom setting, through interactive E-learning, or a live webinar. If conducted through E-learning, the training must include instructions on how to contact a trainer who can answer questions within two business days.

What is Sexual Harassment

The California Department of Fair Employment and Housing (DFEH) defines sexual harassment as “unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature.” This encompasses many behaviors, including leering, making sexual gestures, using derogatory comments, touching, offering employment benefits in exchange for sexual favors, or threatening retaliatory action after receiving a negative response to sexual advances.

Time for Training

Sexual harassment prevention training must occur once every two years, either from the date of completion of the last training.

For supervisory and managerial employees, training must be done within six months of assuming their position. Similarly, training for new nonsupervisory employees must occur within six months from their date of hire. Seasonal or temporary employees, who are hired for a duration of less than six months, are required to be trained within thirty (30) calendar days from the date of hire or within 100 hours worked, whichever occurs first.

Content of Training

Sexual harassment training programs are required to explain the following:

  • The definition of sexual harassment under the Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964 (Title VII);
  • The statutes and case-law prohibiting and preventing sexual harassment;
  • The types of conduct that can be sexual harassment;
  • The remedies available for victims of sexual harassment;
  • Strategies to prevent sexual harassment;
  • Supervisors’ obligations to report harassment;
  • Practical examples of harassment;
  • The limited confidentiality of the complaint process;
  • Resources for victims of sexual harassment, including to whom they should report it;
  • How employers must correct harassing behavior;
  • What to do if a supervisor is personally accused of harassment;
  • The elements of an effective anti-harassment policy and how to use it;
  • The definition of “abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and
  • A discussion of harassment based on gender identity, gender expression, and sexual orientation, shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Additionally, any training must also include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Who May Provide Training

Sexual harassment prevention training must be conducted by a qualified trainer. The three types of qualified trainers are:

(1) attorneys, who have been licensed by the State Bar for at least two years and whose practice includes employment law;

(2) human resource professionals or harassment prevention consultants with at least two years of practical experience in designing or conducting training on discrimination, retaliation, and sexual harassment prevention, responding to sexual harassment or other discrimination complaints, investigating sexual harassment complaints, or advising employers or employees about discrimination, retaliation, and sexual harassment prevention; or,

(3) higher education instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.

California state agencies do not issue licenses or certificates validating a trainer’s qualifications. Therefore, it is important to utilize a qualified trainer from one of the approved categories who meet the DFEH’s standards.

Recordkeeping Requirements of Training

To track compliance, employers are required to keep documentation of the training it has provided its employees for a minimum of two years. The records should include: the names of the employees trained, the date of training, the sign-in sheet, a copy of all certificates of attendance or completion, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider.

If you need to provide your employees with sexual harassment prevention training or have issues related to harassment prevention, contact a Jackson Lewis attorney on how we can assist.

San Francisco’s Family Friendly Workplace Ordinance was enacted in 2014 and provides employees with the right to request flexible or predictable work arrangements to assist with caregiving responsibilities.  Initially, the ordinance applied to requests to care for a child or a parent over age 65.

The ordinance applies to employers with 20 or more employees, regardless of location.

Employees of covered employers are eligible if they are (1) employed in San Francisco, including those employees who telework from outside of San Francisco  (2) have been employed for six months or more by their current employer, and (3) work at least eight hours per week on a regular basis.

The amended ordinance provides that:

  • A covered employee shall be provided a flexible or predictable work arrangement upon notice of the employee’s need for such arrangement unless it would cause the employer undue hardship.
  • Require an employer that does not approve a flexible or predictable work arrangement to engage in an interactive process with the employee to attempt in good faith to determine a mutually acceptable arrangement.

Under the amendments, a covered employee will be allowed flexible or predictable work arrangements to care for any family member age 65 or older, rather than specifically a parent.

The amendments also increase some of the San Francisco’s Office of Labor Standards Enforcement’s ability to enforce the ordinance.

The amendments to the Family Friendly Workplace Ordinance will be operative on July 12, 2022.

If you need assistance with compliance with the Family Friendly Workplace Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

Recently the U.S. Equal Employment Opportunity Commission (EEOC) released new guidance regarding discrimination against employees with caregiving responsibilities for family members. California similarly has a pending bill, Assembly Bill (AB) 2182, which seeks to add “family responsibilities” as a protected class under the Fair Employment and Housing Act (FEHA).

If passed, the bill would prohibit employment discrimination on account of family responsibilities, defined as obligations of an employee or applicant to provide care for a minor child or care recipient. A care recipient includes a family member or household member of an employee who relies on the employee or applicant for medical care or assistance with activities of daily living.

Under the proposed bill, it would be unlawful for an employer to fail to make reasonable accommodations for the known family responsibilities of an applicant or employee related to specified obligations, or to retaliate or otherwise discriminate against a person for requesting an accommodation.

If you have questions about AB 2182, or issues related to reasonable accommodations in the workplace contact a Jackson Lewis attorney to discuss.

In the wake of a recent trial court decision finding that minor league baseball players are year-round employees, California State Senator Josh Becker has introduced legislation proposing that California enact the Minor League Baseball Players’ Bill of Rights.

Commenting on his proposed legislation Senator Becker stated, “I introduced Senate Bill (SB) 1248 to create the Minor League Baseball Players’ Bill of Rights and to clear the way for better wages, better treatment and fair contracts for these athletes. It’s only fitting that the legislative movement for Minor Leaguers’ rights begins in California.”

SB 1248 would define a minor league baseball player as a person who is employed to play baseball for a minor league team that is affiliated with a major league baseball team and who plays, resides, or is employed in California. It would drastically reduce the current seven (7) year time period that a minor league player can remain under a Major League Baseball team’s contractual control. It would expressly prohibit an employment contract entered into on and after January 1, 2023, from having a term in excess of 4 years.

Using similar legislation to the California bill signed into law by Governor Newsom in 2021 which granted college athletes the right to market and profit from their name, image, and likeness as a model, this bill would require that minor league player employment contracts permit a player to use his name, image, or likeness as he sees fit, the legal right to receive compensation for that use, and any such provision prohibiting such use would be void and unenforceable. SB 1248 would also protect a player’s exercise of the right to use his name, image, or likeness by prohibiting retaliation in any form against a player as a consequence of the exercise of this right.

Becker further commented, “Baseball is called America’s pastime and Minor Leaguers are just asking for what every American worker wants. These players are asking for fair treatment and the opportunity to make a decent living under decent conditions.”

Jackson Lewis continues to track legislation affecting employers. If you have questions about this legislation or issues related to name, image, and likeness regulations contact a Jackson Lewis attorney or any member of the firm’s Collegiate and Professional Sports Practice Group to discuss further.

Building on board gender diversity requirements, California passed Assembly Bill (AB) 979 in 2020.  This statute requires publicly held corporations headquartered in California to diversify their boards of directors with directors from “underrepresented communities,” specifically those individuals who self-identify as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender. AB 979 required boards to diversify by December 31, 2021.

Starting this year in March, the California Secretary of State will publish annual reports on its website documenting compliance with these diversification requirements. Companies that fail to timely comply will be fined $100,000 for the first violation and $300,000 for subsequent violations.

Read the full article on Jackson Lewis’ Corporate Governance & Internal Investigations Advisor.

While the Cal/OSHA Standards Board (Board) has received much more attention in the last two years relating to the COVID-19 Emergency Temporary Standards (ETS) the Board is turning to some more basic issues pertaining to workplace safety. At its upcoming April 21, 2022 meeting the Board will consider revisions to first aid kit requirements both under the Construction Safety Orders and the General Industry Safety Orders.

The proposed revisions will give employers two options for ensuring their first-aid kids are compliant: (1) contents can be determined by an employer-authorized licensed physician; or (2) supplies can be determined according to tables of minimum contents, included in the proposed regulation.

For the general industry regulation, the revisions would remove some items from the supply list such as safety pins and add items such as medical exam gloves.

In addition to the public hearing on April 21st, employers can submit comments from March 4, 2022, until April 21, 2022, to the Board.

If you have questions about the Cal/OSHA regulations or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Last year, the California Court of Appeal ruled in All of Us or None of Us. v. Hamrick that an individual’s date of birth and driver’s license number could not be used as data identifying a criminal defendant in public records. Based on that decision, many courts around the state redacted birth dates and driver’s license numbers from their indexes, causing routine background checks to be much more difficult to obtain. Consumer reporting agencies have historically relied on these court indexes to complete criminal background checks in California.  The inability to verify an individual’s criminal record based on personal identifiers such as date of birth and a driver’s license number has adversely impacted these agencies’ ability to satisfy the accuracy of report requirements under the Fair Credit Reporting Act and the like.

A proposed bill, Senate Bill (SB) 1262 may resolve the issue by requiring publicly accessible electronic criminal defendant indexes to permit searching and filtering of results based on a defendant’s driver’s license number or date of birth, or both.

While SB 1262 is pending in the legislature, employers should carefully review background checks and continue to follow the process of individualized assessment and notice required by state, federal, and local ordinances when assessing if an employee or applicant should be disqualified from a position.

If you have questions about employment criminal background checks or related issues, please contact a Jackson Lewis attorney to discuss.

As COVID-19 restrictions loosen around the state, California’s legislature continues its consideration of legislation pertaining to the pandemic.

Assembly Bill (AB) 1993 which was introduced in February proposes that employers require employees and independent contractors who are eligible to receive the COVID-19 vaccine to show proof of vaccination. Current employees and independent contractors would need to confirm their vaccination status on January 1, 2023, and new employees and independent contractors would need to show proof at the time of hiring and contracting. As with vaccine mandates the state passed last year for healthcare and direct care workers, the legislation would allow for exemptions for individuals who have a medical condition or disability or because of a sincerely held religious belief.

The law would be administered by the Department of Fair Employment and Housing (DFEH) and would allow for the DFEH to impose penalties on employers who fail to comply.

Jackson Lewis continues to track legislation pertaining to employers in California. If you have questions about vaccine mandates or related issues, contact a Jackson Lewis attorney to discuss.

California employment laws are exhaustive and comprehensive compliance may serve to be challenging for employers, especially when taking into account the patchwork of local ordinances pertaining to minimum wage, paid sick leave, and more.

At the minimum, employers doing business in the City of San Diego (City) should be aware of and in compliance with the following local ordinances:

Minimum Wage

Effective January 1, 2022, minimum wage for employers within the geographic boundaries of the City is $15.00, regardless of the business’ size.

Earned Sick Leave

The City also has its own paid sick leave ordinance. Employers may provide sick leave through an accrual method of 1 hour for every 30 hours worked or a front-loaded method of no less than 40 hours at the beginning of the benefit year.

Employers may limit an employer’s usage of earned leave to 40 hours per benefit year.

An employee may use earned sick leave for any of the following reasons:

  • The employee is physically or mentally unable to perform his or her duties due to illness, injury, or a medical condition.
  • The employee’s absence is to obtain a professional diagnosis or treatment for a medical condition.
  • The employee’s absence is for other medical reasons such as pregnancy or obtaining a physical examination.
  • The employee is providing care or assistance to a family member, with an illness, injury, or medical condition, including assistance in obtaining professional diagnosis or treatment of a medical condition.
  • The employee’s absence is necessary to obtain services due to domestic violence, sexual assault, or stalking.
  • The employee’s place of business is closed by order of a public official due to a Public Health Emergency, or the employee is providing care or assistance to a child, whose school or childcare provider is closed by order of a public official due to a Public Health Emergency.

Posting and Notice

Every employer must post the earned sick leave and minimum wage notice published by the City in a visible place at any workplace or job site where an employee works.

Employers must also provide written notice to the employee of: the employer’s legal name, any fictitious business names, address, telephone number, and employer requirements of the ordinance including the employer’s method of providing earned sick leave.

Links to the notice and poster published by the city are available on the City’s compliance page.

If you have questions about compliance with San Diego’s local ordinances or related issues, feel free to contact one of our San Diego attorneys or the Jackson Lewis attorney with whom you often work.