Understanding the recent California Fair Pay Act amendments and the rising tide of equal pay claims is “comp”licated. Employers want to ensure they pay employees fairly and without discrimination. The latest broad expansion of California’s Fair Pay Act (CFPA) is making sure employers do that, and more. In January 2016, the CFPA, went into effect protecting only on the basis of gender and has been expanded to cover race and ethnicity, effective January 2017.

In addition, other recent changes to the law create new challenges for employers and compel us to be more proactive in examining our pay systems. Internal pay claims, government agency investigations, and litigation are only expected to rise, so join us to understand what is needed to find and fix the issues you may currently have.

Click here to register for this webinar.

Effective March 1, California’s Equal Restroom Access Act (ERAA) will require some single-occupancy restrooms to have signs indicating they are gender-neutral. Click here to learn more about what this rule means for you at our Disability, Leave & Health Management Blog.

The Los Angeles Fair Chance Initiative for Hiring Ordinance “FCIHO” went into effect on January 22, 2017. The Bureau of Contract Administration, the Designated Administrative Agency responsible for enforcing the Ordinance, has issued “Rules and Regulations” for the FCIHO. Click here for highlights and more information on the regulations.

In another important decision regarding an employer’s obligation to provide rest breaks, the California Supreme Court in Jennifer Augustus et al. v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, dealt with two issues related to employee rest breaks: 1) whether employers are required to permit their employees to take off-duty rest periods pursuant to Labor Code 226.7 and Wage Order 4; and 2) whether employers may require their employees to remain “on call” during rest periods.

Plaintiff worked as a security guard for defendant ABM Security Services. ABM required its guards to keep their pagers and radio phones on during rest periods and to remain vigilant and responsive to calls when needs arose.  Plaintiff moved for summary judgment on its rest break claim.

The trial court granted summary judgment for Plaintiff, awarding approximately $90 million in statutory damages, interest and penalties. The Court of Appeals reversed, noting that Wage Order 4, subdivision 12(A) contained no mention of an “off duty” rest period while subdivision 11(A) specifically mentioned that employees were to be “relieved of all duty” during the meal period.  Based on this distinction, the Court of Appeals concluded that employers were not required to provide off-duty rest periods.

The California Supreme Court reversed, finding that employers are required to provide off-duty rest periods. In reaching this conclusion, the Supreme Court relied on the following points: 1) Labor Code section 226.7 treats meal and rest breaks the same, which would be difficult to reconcile if Wage Order 4 treated them differently; 2) Wage Order 4, subdivision 12(A)’s language authorizing that rest periods are counted as hours worked without deduction of wages is unnecessary if an employee was permitted to work during rest breaks; 3) there is no language authorizing on-duty rest periods under Wage Order 4, subdivision 12 similar to language authorizing on-duty meal periods under Wage Order 4, subdivision 11; and 4) language included in other wage orders, such as Wage Order 5, specifically provide for limited exceptions when on-duty rest breaks are authorized, which would be superfluous if the default was to permit on-duty rest breaks.  The Supreme Court concluded that during rest periods, employers must relieve employees of all duties and relinquish control over how employees spend their time.

The second question was whether an employer could satisfy its obligation to provide an off-duty rest period while still requiring its employees to remain on call. The Court concluded the answer was no.  Forcing employees to remain on call requires them to carry a devise or make arrangements so that the employee is reachable during the break, responding when the employer seeks contact with the employee, and performing other work if the employer requests.  The Court found these obligations irreconcilable with an employee’s ability to use their rest break for their own purposes.

Takeaway

Pursuant to Labor Code section 226.7 and Wage Order 4, employers should be mindful that they are required to relinquish all control over how employees spend their break time and must relieve their employees of all duties, including the obligation that an employee remain on call.  While the case specifically dealt with Wage Order 4, the reasoning is equally applicable to the other Wage Orders.

The California Court of Appeal has issued a new ruling that reminds employers to scrutinize all communications received from employees about their leaves and their own attempts at follow-up before considering an employee to be, “voluntarily resigned.”

Click here to read the full article about this ruling on our Disability, Leave & Heath Management Blog.

 

Jackson Lewis recently completed a series of seminars throughout California on many of the key California workplace law updates. On December 28, 2016, the California Department of Industrial Relations (DIR) released its own 2016 Legislative Digest summarizing new laws that impact employees. The DIR Legislative Digest is the DIR’s summary of key laws and is helpful for employers to see their focus.

Highlights include:

  • SB 3 on the annual increases to the state minimum wage on January 1, 2017.
  • AB 1066 on overtime pay for farmworkers.
  • SB 1015 on the Domestic Workers Bill of Rights.

If you have questions, please feel free to contact the Jackson Lewis attorney you normally work with.

Are you sick of sick leave yet? Beginning on January 1, 2017, the new paid sick leave provisions under Santa Monica City’s recently adopted Minimum Wage and Sick Leave law will go into effect.   

Click here to read the full article and find out more on our Disability, Leave & Heath Management Blog.

 

In Castro Ramirez v. Dependable Highway Express, Inc., the employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s dialysis treatments. On the surface, this seemed like a claim for reasonable accommodation (i.e., a modified work schedule) by a non-disabled employee and we all know that only disabled folks are entitled to receive reasonable accommodations.  Easy decision, right?  Wrong.

Click here to read the full article and find out why on our Disability, Leave & Heath Management Blog.

In recent years, there has been an uptick in union organizing focusing on California charter schools.   Traditionally, education related labor groups focused on organizing large public school districts, but with over 1,200 charter schools in California, groups like the California Teachers Association have shifted gears to try to bring unions into charter schools. Such organizing efforts often occur surreptitiously, and relatively quickly; if charter schools are not vigilant in their approach to labor groups, they can quickly be entangled in lengthy union negotiations which can divert attention from curriculum development and student growth. 

Under the Educational Employment Relations Act (the “EERA”), which governs labor relations in public and charter schools in California, a labor organization may be certified as an exclusive bargaining representative simply by proof of majority support. Unless the school disputes the bargaining unit sought by the union, the school is obligated to recognize the union, generally without an election. Once a showing of majority support is made, the Public Employment Relations Board (“PERB”) will certify a union and require the employer to begin bargaining in good faith with the union. From that point forward, the school must meet and negotiate in good faith with the union over all terms and conditions of employment, and is generally unable to make changes to these matters pending the exhaustion of negotiations.  

In addition, and even prior to full negotiations with an “exclusive representative,” the EERA requires the school employer to “meet and confer” with an “employee organization” over fundamental employment matters. While this latter obligation is less onerous that full-fledged traditional bargaining, it is important and may be used by a group of teachers as a precursor to full bargaining prior to the time the Union gains majority support.  In either case, failure to recognize the bargaining obligation conferred under the EERA may subject the public school employer to an Unfair Practice Charge to be litigated before the PERB; the predominate agency which adjudicates cases brought under the EERA.  

Based upon growing union interest in gaining new membership, the battle for unionizing charter school teachers has increased dramatically in recent years. With over 1,200 charter schools in California, and only a small fraction of those schools being represented by a labor union, unions have increased focus on targeting charter schools to increase union membership.  Recently, CTA targeted California Virtual Academies (“CAVA”), a group of eleven separately managed and operated online charter schools spanning across California. PERB, in an unprecedented decision, granted CTA’s petition to represent all CAVA schools as a collective group, even though each CAVA charter is demonstrably a separate public school employer under the EERA. PERB’s landmark decision makes it much easier for the CTA or other education union to organize certificated teachers who work for charter schools which are commonly branded or within a charter network. The CAVA decision will have far-reaching impact as UTLA is engaged in ongoing organizing efforts in Los Angeles on Alliance College Ready Schools, a group of twenty-six different charter schools.  

PERB’s recent decisions affecting union and employee rights to organize have been decidedly pro-union, and there is no reason to expect this trend to reverse. Therefore, it is critical that charter schools be vigilant of employee rights and nascent union organizing. Under the EERA, a public school employer may not threaten, interfere, coerce, or discriminate against employees because they have exercised their rights to join a union or otherwise engage in union organizing activities. However school management also has countervailing rights to non-coercive and non-threatening statements of facts and opinions about unions and union activities; such messaging should be done with the advice of counsel. Moreover, under the EERA, teacher unions may access employee work areas, bulletin boards, mailboxes and other means of communicating with teachers they seek to represent. PERB has taken a liberal view of union access rights, and has held that, in its efforts to organize and represent teachers, a union may have  employee email addresses and disseminate its message and literature over the school’s email server. It is also recommended that any access restrictions policies, or other rules or policies which may affect union organizing rights under the EERA be in writing, and narrowly constructed under the guidance of knowledgeable legal counsel. We further recommend that any such rules be formally adopted by the charter school’s governing body prior to the discovery of a union organizing campaign.

 Finally, in the event of union organizing,  the charter school employer should consider whether to seek jurisdiction under the National Labor Relations Board (“NLRB”) under the National Labor Relations Act (“NLRA”), which is the private-sector analog to the EERA. In some cases,  charter schools have done so successfully to gain advantage of the NLRB’s election procedures prior to union certification. Deferral to NLRB jurisdiction and election procedures may give teachers a second chance to reject union representation after having signed a union card or petition without full information about union dues and fees, and the uncertainty of union representation and negotiations.

Unfortunately, for charter school management and teachers alike, union organizing may come quickly, and in stealth, making it difficult or impossible to get all the information out before it is too late. Vigilance and knowledge are the key and it is never too early to air out the issues so that teachers may know what they are getting into before they sign union cards or petitions. If you believe your charter school may be a union target, or that union organizing may be underway, please call us immediately so that you may know your rights and obligations under all applicable laws and regulations.