On April 4, 2016, the California Supreme Court took a stand by issuing a long-awaited opinion in Kirby v. CVS Pharmacy, Inc.  The decision clarifies certain ambiguities in an employer’s obligation to provide suitable seating to employees.  At issue was a provision in California’s Wage Orders that requires employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.”  The Court held that “nature of the work” refers to the task performed at a given location where the employee is claiming a right to a suitable seat, instead of a holistic approach.  The Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.

Background

Kirby v. CVS Pharmacy, Inc. arises from a putative class actions filed by a cashier and bank teller. The plaintiffs alleged their employer violated the suitable seating provision in various California Wage Orders by failing to provide seats. The plaintiffs appealed unfavorable district court decisions to the Ninth Circuit Court of Appeals.  The Ninth Circuit requested clarification from the California Supreme Court on the proper interpretation of three areas of the suitable seating provision, including the meaning of “nature of work” and “reasonably permits,” and who bears the burden to show suitable seating is available. Continue Reading The California Supreme Court Finally Weighs In on Suitable Seating

California’s unfriendly business environment took another unprecedented step this week, with Governor Jerry Brown raising the minimum wage to $15.00 per hour by 2022.  Governor Brown signed SB 3 into law on April 4, 2016. 

The new law annually increases the state minimum wage starting January 2017.  California’s minimum wage currently is $10.00 per hour.  California employers opposed the bill arguing the minimum wage increases will make it even more difficult for in-state producers to compete with out-of-state employers; employer advocacy groups also argued the bill will result in more employers leaving the state.  Continue Reading Governor Brown Raises the Minimum Wage to $15.00 per Hour, Despite Strong Employer Opposition

California Governor Jerry Brown just announced a compromise that would raise the state minimum wage to $15 per hour by 2022 and head off competing union-backed ballot measures.  The proposal raises the current $10 minimum wage every January starting in 2017 until it reaches $15 in 2022.

Employers with fewer than 25 workers have an extra year to reach $15 per hour. The measure also adds in-home support service workers to the list of employees entitled to three paid sick days per year. 

A ballot initiative backed by the Service Employees International Union-United Healthcare Workers West qualified for the November ballot last week. It also would raise the current $10 minimum wage to $15. An SEIU California State Council-backed initiative now gathering signatures would raise the minimum wage for 3.3 million Californians to $15 by 2020 and would provide six paid sick days.

 

California’s City of Santa Monica’s City Council has adopted an ordinance that enacts minimum wage and paid sick leave requirements for covered employees as well as new regulations pertaining to service charges and surcharges. Ordinance Number 2509 became effective on February 25, 2016, although its provisions will not be implemented until July 1, 2016.

The City Council authorized the City Manager to establish a working group to review and recommend technical adjustments to the adopted Ordinance.

We discuss key provisions below.

Minimum Wage Rates for Non-Hotel Sector Employees

Employers with at least 26 covered employees shall pay no less than the following hourly wages:

  • July 1, 2016 – $10.50
  • July 1, 2017 – $12.00
  • July 1, 2018 – $13.25
  • July 1, 2019 – $14.25
  • July 1, 2020 – $15.00

Employers with up to 25 employees will have an additional year to satisfy each of these pay rates. Therefore, hourly pay increases for smaller employers will start on July 1, 2017, at $10.50 per hour, reaching $15.00 per hour by July 1, 2021. Continue Reading Santa Monica, California, Joins Patchwork of Minimum Wage and Paid Sick Leave Laws

New California regulations declaring that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by” the California Fair Employment and Housing Act and that “[e]mployers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” will go into effect on April 1, 2016. Continue Reading New California Regulations on Workplace Anti-Harassment, Anti-Discrimination Policies Effective April 1

The California Department of Fair Employment and Housing (“DFEH”) recently issued guidelines on transgender employee rights, addressing what types of questions employers may ask transgender employees and applicants. The guidelines also address how employers can implement dress code and grooming standards, and make suggestions for maintaining employee restrooms.

An employee need not have undergone sex reassignment surgery for these guidelines to apply, as the Fair Employment and Housing Act recognizes “gender expression” as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” (Govt. Code section 12926(q).) The new guidelines are summarized as follows: Continue Reading DFEH Issues Guidelines for Protecting Transgender Rights in the Workplace

On January 7, 2016, Governor Brown’s office submitted a 22-page Budget Change Proposal for 2016-2017 (http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG7350_BCP474.pdf) in an effort to “stabilize and improve the handling of Private Attorneys General Act cases.”

Background

Enacted in 2003, the Private Attorneys General Act (PAGA) enables private parties to recover penalties for certain Labor Code violations that could previously only be pursued by the Labor Commissioner or other divisions within California’s Department of Industrial Relations (DIR). Following a 2004 amendment, PAGA requires employees or their representatives to initiate a case by first sending written notice to the employer and the Labor and Workforce Development Agency (LWDA) identifying the alleged violations and setting forth specific supporting facts.  Continue Reading State Budget Proposal Seeks to Reduce PAGA Litigation Through Increased State Oversight

Last week, California Attorney General, Kamala D. Harris – who has been mentioned as a potential nominee to fill Justice Antonin Scalia’s recently vacated seat on the U.S. Supreme Court – issued the California Data Breach Report (Report).  The Report provides an analysis of the data breaches reported to the California AG from 2012-2015. The Report details that nearly 50 million records of Californians have been breached and the majority of these breaches resulted from security failures.

For more details, please see the post from our colleagues in the Privacy, e-Communication and Data Security Group:[http://www.workplaceprivacyreport.com/2016/02/articles/data-security/reasonable-data-security-defined-by-california-ag/].

 

The budget change proposal for the 2016/17 Fiscal Year [document: <http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG7350_BCP474.pdf>] submitted by Governor Brown last month contains significant proposed changes to the operation of the Labor & Workforce Development Agency (“LWDA”), the agency responsible for overseeing the Private Attorney Generals Act of 2004 (“PAGA”)   including the creation of a “PAGA Unit” with the authority to intervene and object to the adequacy of the settlement funds designated to PAGA claims. The budget requests a $1.6 million increase to the operation budget to cover additional staffing needs for the agency and an additional $1.5 million going forward to “stabilize and improve the handling of PAGA cases.”  The budget proposal justifies the request for additional resources to increase the LWDA’s effectiveness. Continue Reading Governor Brown’s Proposed PAGA Unit May Have Power to Challenge PAGA Settlement in Court

The recent death of conservative Justice Antonin Scalia will give public sector unions a short respite in Friedrichs v. California Teachers Association et al., a case that was likely to limit public sector unions’ ability to require mandatory fees from public workers. Following last month’s oral arguments before the High Court, many legal analysts expected a 5-4 opinion in Friedrichs, striking down mandatory union fees for public workers. Now, it is possible that the lower court ruling upholding the fees will remain in place. Continue Reading Public Sector Union Fees Continue to Hang in the Balance With Scalia’s Passing