California employment law is changing once again.  By January 1, 2020, an employer having five or more employees will be required to provide at least one hour of sexual harassment training to all of its employees, once every two years. The training will be required to start within six months of the employee’s assumption of a position.

Length:

Supervisory employees will be required to undergo two hours of classroom or other effective interactive training regarding sexual harassment.   Supervisory employees are those with authority to hire, fire, assign, transfer, discipline, or reward other employees or who many effectively recommend these actions if exercising that authority requires the use of independent judgment.

All other (Non-supervisory) employees will be required to undergo at least one hour of classroom or other effective interactive training regarding sexual harassment.  These training requirements apply to both permanent and temporary / seasonal employees.

Format:

Employers must provide sexual harassment prevention training in a classroom setting, through a live presentation, interactive E-learning, or a live webinar. If employers use E-learning training, the training must provide instructions on how to contact a trainer who can answer questions of trainees within two business days.

Content:

The training should include information and practical guidance regarding federal and state provisions on the prohibition against and the prevention of sexual harassment, as well as available remedies. California’s Department of Fair Employment and Housing requires trainings to explain: the legal definition of sexual harassment under state and federal law; examples of conduct which may constitute sexual harassment; resources and remedies available for victims of sexual harassment; strategies to prevent sexual harassment; supervisors’ obligations to report harassment; limited confidentiality of the complaint process; methods in which employers must correct harassing behavior; and what to do if a supervisor is personally accused of harassment. The training must also address “Abusive Conduct” under Government Code section 12950.1(g)(2), and harassment based on gender identity, gender expression, and sexual orientation.

Trainers:

California law limits qualified harassment trainings to three types of individuals: (1) Attorneys who have been members of any state bar for at least two years and whose practice includes employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964; (2) Human resource professionals or harassment prevention consultants with at least two years of practical experience in: designing or discrimination training on discrimination, retaliation and sexual harassment prevention and/or investigating, responding to, or advising regarding sexual harassment, discrimination or retaliation; or (3) law school, college, or university 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.

How We Can Help:

The ins-and-outs of harassment training are extensive and complex. You don’t have to figure it out on your own. Jackson Lewis has five California offices and over one hundred and sixty five California attorneys, with experience in employee training and other “best practices” consulting to a variety of employers, large and small. If you have any questions, please feel free to contact your local Jackson Lewis office.

In a recent case, the California Court of Appeal held, employees could not be compelled to arbitrate their claim under California’s Private Attorney General Act without the government’s consent, despite signing an arbitration agreement. Correia v. NB Baker Electric.

There, plaintiffs Mark Correia and Richard Stow sued their former employer, NB Baker, alleging wage-and-hour violations and seeking civil penalties under the Private Attorney General Act of 2004 (PAGA).  Defendant NB Baker petitioned the Court for arbitration pursuant to the parties’ arbitration agreement, which provided that arbitration would be the exclusive forum for any dispute.  Moreover, the arbitration agreement stipulated no dispute could be brought as a class or representative action.

The trial court granted the arbitration petition on all causes of action except for the PAGA claim, following two prior California decisions. (Iskanian v. CLS Transportation Los Angeles, LLC (2014 59 Cal. App. 4th 48) (holding unenforceable agreements to waive the right to bring PAGA representative actions in any forum) and Tanguilig v. Bloomingdales, Inc. (2016) 4 Cal. App. 5th 665 (holding a PAGA claim cannot be compelled to arbitration without the state’s consent)).

NB Baker appealed, arguing the United States Supreme Court decision Epic Systems Corp v. Lewis (2018), which reaffirmed the broad preemptive scope of the Federal Arbitration Act, preempted Iskanian and Tanguilig.

The Court of Appeal affirmed the trial court’s finding, holding California courts remain bound by Iskanian.  The Court acknowledged the Epic court’s findings, but concluded they were not applicable because Epiq did not specifically address the issues of claims for civil penalties brought on behalf of the government, and the enforceability of an agreement barring a PAGA representative action in any forum.  The Court concluded that a waiver of PAGA representative claims in any forum is unenforceable.

In applying Iskanian, the Court also found that the State is the real party in interest in a PAGA claim.  Therefore, the State must consent to an agreement to effectively waive the right to bring a PAGA claim into court.

The Court acknowledged the seeming inconsistency of its findings with the federal courts, but characterized the federal decisions as “unpersuasive” due to the fact those courts did not fully consider the implications of the “qui tam” nature of a PAGA claim on the enforceability of an employer-employee arbitration agreement.

What does this mean for employers? Under this clarification, California employers cannot avoid PAGA lawsuits in Superior Court through a general pre-dispute agreement.  While an employee may still agree to waive their right to a jury trial and proceed to arbitration on a variety of claims, such an agreement is unenforceable as it relates to PAGA claim.  Of course, the best manner to prevent and/or effectively defend PAGA suits is to ensure proper compliance with all local, state and federal regulations, and maintain ample written record of the same.

By now, most employers should be aware of the California Healthy Workplaces, Healthy Family Act which went into effect in 2015.  Under California law, all employers (with very few exceptions), must allow employees to use up to 3 days or 24 hours of paid sick leave in a 12-month period.  However, what many employers do not know is that several cities within the State of California have their own paid sick leave requirements, many of them more stringent than those required under the state law.

As of January 2019, the following cities have their own separate paid sick leave laws, some with requirements that differ from state law: Berkeley, Emeryville, Los Angeles (city), Oakland, San Diego, San Francisco, and Santa Monica.[1]  Some of these city-specific laws contain provisions that are different than or conflict with the requirements under California law.  Employers must adopt the provisions which are more favorable to the employee.  For example, under state law, employees can be limited to using 3 days or 24 hours of paid sick leave in a 12-month period.  However, the paid sick leave law in the City of Emeryville does not contain an annual use cap and, as such, employers with employees working in Emeryville cannot limit the number of paid sick leave hours their employees use in a 12-month period.[2]

Typically, for an employee to qualify under a city-specific paid sick leave law, the employee must work in that city for two hours in a calendar week, and meet other requirements as specified by that city’s paid sick leave law.  For example, to qualify under Emeryville’s sick leave law, employees must work in that city for at least two hours in a calendar week and be entitled to minimum wage.  To qualify under San Diego’s sick leave law, employees must work in the city for at least two hours in a calendar week, be entitled to minimum wage or participate in a state Welfare-to-Work program.  Employers who have employees operating in any or all of these cities, may need to modify their paid sick leave or paid time off policies so as to meet the requirements of both the California state law and the law of the cities in which their employees work.  Moreover, employers with employees operating in multiple cities throughout the state may need to administer different policies to employees based on which city the employee works in.

 

[1] Additionally, hotel workers in the cities of Los Angeles and Long Beach are also subject to paid sick leave provisions that differ from the California law.

[2] The Emeryville law does contain a limit on yearly accrual.

The opportunity for college level student-athletes in California to take advantage of potential marketing opportunities while still maintaining their amateur status could soon become a reality.

A report from the National College Players Association and Drexel University Sports Management Program concluded that 82 percent of full-scholarship athletes who live on campus and 90 percent of full-scholarship athletes who live off campus live at or below the federal poverty level. Please find the rest of this article on our Collegiate & Professional Sports Law Blog.

Frequently Asked Questions About CalSavers

Question:

What is CalSavers?

Answer:

CalSavers is a new California law designed to encourage employees to save for retirement. CalSavers was originally called California Secure Choice and was approved by the State Legislature in 2016.

CalSavers provides employees with a retirement savings program without the administrative complexity, fees, or fiduciary liability of existing options for employers. Most employers with at least five employees, that do not already offer an employer-sponsored retirement plan, will be required to begin offering a retirement plan or provide their employees access to CalSavers. Please find the full article in our Benefits Law Advisor blog here.

The International Brotherhood of Teamsters, Local 2785 has filed a petition for review to the Ninth Circuit Court of Appeals on the Federal Motor Carrier Safety Administration’s (FMCSA) determination that California’s meal and rest break rules are preempted as applied to drivers of commercial motor vehicles (CMVs) subject to the FMCSA’s hours-of-service (HOS) regulations. This primarily involves interstate truck drivers and some intrastate drivers who meet certain criteria under the HOS regulations who drive CMVs. The Teamsters are seeking to reverse the Agency’s administrative determination.

On September 24, 2018, the American Trucking Associations (ATA) petitioned the FMCSA to preempt California law requiring employers to provide their drivers meal and rest breaks who operate CMVs subject to the FMCSA’s HOS regulations.

On December 21, 2018, the FMCSA reversed an FMCSA determination from December 2008 where it previously found California’s meal and rest periods were not preempted by federal law. The FMCSA then granted ATA’s petition and held the meal and rest break rules are preempted under 49 U.S.C. 31141 as applied to CMV drivers covered by the FMCSA’s HOS regulations. Docket No. FMCSA-2018-0304.

FMCSA held that federal law provides for preemption of California laws regarding CMV safety that are additional to or more stringent than federal regulations if they: (1) have no safety benefit; (2) are incompatible with federal regulations; or (3) would cause an unreasonable burden on interstate commerce. The FMCSA determined that the meal and rest break rules are laws on CMV safety, they are more stringent than the Agency’s HOS regulations, have no safety benefits that extend beyond those already provided, and are incompatible with the HOS regulations. They cause an unreasonable burden on interstate commerce, the Agency concluded.

The Teamsters responded by filing a petition for review of the FMCSA’s Determination of Preemption. In light of these recent developments, California employers with drivers covered by FMCSA may consider proceeding cautiously until the matter is clarified through the current litigation. If you have any questions, please feel free to contact Jackson Lewis.

Data privacy and security regulation is growing rapidly around the world, including in the United States. In addition to strengthening the requirements to secure personal data, individuals are being given an increasing array of rights concerning the collection, use, disclosure, sale, and processing of their personal information. Meanwhile, organizations’ growing appetite for more data, and more types of data, persists, despite mounting security risks and concerns about permissible use. The recently enacted California Consumer Privacy Act (CCPA) is intended to address some of these risks and concerns.

To see the full article, please visit our publications page here.

School children are back at school following winter break, and that may mean employee requests for time off for parent-teacher conferences, school assemblies, and more.  While less known, California law has a collection of statutes affording parents protected time off. One of those protections is California Labor Code section 230.8, which provides parents, and other parental figures, with protected time off to attend to child related activities.

To read the full article, please see our Disability, Leave & Health Management Blog here.

In 2018, the California Supreme Court issued an opinion (Dynamex Operations West, Inc. v. Superior Court of Los Angeles County) establishing a new standard (“ABC test”) for determining whether an individual is an independent contractor or employee in the context of claims brought under the State’s Industrial Welfare Commission’s wage orders. The result is a broader definition of who qualifies as an employee for the purpose of a claim brought under a wage order.

Under the ABC test, a worker can be classified as an independent contractor only if all three of the following factors are met:

  • That “the worker is free from control and direction” of the employer as it relates to performance of the work; and
  • That the work is performed “outside the usual course of the hiring entity’s business”; and
  • That the worker engages “in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”

However, the Court stated the new standard does not automatically apply to determine employment status under other statutes, and it may better effect the purpose of other statutes to utilize the long-standing test in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations.

Two assembly bills introduced on December 3, 2018, propose legislation related to the Dynamex decision.

California Assembly Bill 5 would add a new section to the Labor Code, proposed § 2750.3, to codify the test in Dynamex. It is unclear whether would broaden the Dynamex test beyond claims brought under the wage orders.

California Assembly Bill 71 would amend existing Labor Code §2750.5, which pertains to workers performing services for which a state contractor’s license is required, or performing services for a person who is required to obtain a state contractor’s license. This bill seeks to add a section ensuring that, in this setting, independent contractor status is determined under the Borello standard. Factors to be considered include:

  1. Whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired, which is the principal factor.
  2. Whether the one performing services is engaged in a distinct occupation or business.
  3. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision.
  4. The skill required in the particular occupation.
  5. Whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work.
  6. The length of time for which the services are to be performed.
  7. The method of payment, whether by the time or by the job.
  8. The right to discharge at will, without cause.
  9. Whether or not the work is part of the regular business of the principal.
  10. Whether or not the parties believe they are creating the relationship of employer-employee.

If you have questions about the independent contractor analysis, Jackson Lewis attorneys are ready to assist.

An employer successfully compelled arbitration under an arbitration agreement that the plaintiff-workers had with their staffing agency, even though the staffing agency was not a defendant in the lawsuit.

The plaintiffs sued the primary employer, but not the staffing agency with whom they had entered into an arbitration agreement. On January 3, 2019, a California appeals court ruled in an unpublished opinion that a “worksite employer” could compel enforcement of an arbitration agreement between plaintiffs and a staffing agency, even though the staffing agency was not named as a defendant in the lawsuit and the worksite employer was not a signatory to the arbitration agreement.

In this case, two workers had sued the worksite employer claiming they were not properly paid wages, given meal and rest breaks, provided wage statements, or timely paid after termination. The court ruled that because the worksite employer and the staffing agency were co-employers of the plaintiffs, and both were responsible for complying with state labor laws, the worksite employer could enforce the arbitration agreement. The court said it was “inconsequential” that the plaintiffs had not named the staffing agency. Plaintiffs could not avoid arbitration by only suing the worksite employer, which was not a party to the agreement.

Even though this case is unpublished and is not available for citation purposes, it reinforces the argument that arbitration agreements may be enforced through third party agreements (e.g., joint employers or agent relationships), even when the party is not a defendant or signatory to the agreement. Employers that are sued and use staffing agencies, will want to consider whether arbitration agreements with the staffing agency exist to compel arbitration.