Hunton Employment & Labor Perspectives

California law requires employers with at least 100 employees and at least one California employee, to annually report pay, demographic, and other workforce data to the Civil Rights Department (“CRD”). This reporting is required under Government Code section 12999, and is part of the State’s efforts to promote equal pay. 

In a bipartisan vote, Congress passed a new law poised to end employers’ ability to require employees to arbitrate claims for sexual harassment or sexual assault through a pre-dispute arbitration agreement.  This new law is the latest in an ongoing series of state and federal laws inspired by the #MeToo movement, and the most significant federal legislation involving the issue of arbitration in recent years.

The California Supreme Court has clarified that state whistleblower retaliation claims should not be evaluated under the McDonnell Douglas test, but rather under the test adopted by the California legislature in 2003, thus clarifying decades of confusion among the courts.

While California inches closer to the state’s June 15 target to lift restrictions and reopen the economy, California employers will have to wait for guidance from CalOSHA on the standards that will govern COVID-19 workplace safety.  For now, CalOSHA’s Emergency Temporary Standards released in November 2020 will remain in place and employers will need to continue to be mindful of these more restrictive guidelines, despite loosening of other state restrictions.

The U.S. Department of Labor recently issued guidance to state unemployment insurance agencies, expanding the categories of workers that are eligible for Pandemic Unemployment Assistance. The PUA program was created in March 2020 to provide payments to certain people affected by COVID-19, as well as independent contractors and gig workers who do not usually qualify for unemployment insurance.  While funded by the federal government, states are responsible for administering it.

New Eligibility Categories

This new DOL guidance expands eligibility to three categories of ...

Many employers use rounding methods to adjust the hours that an employee works to the nearest time increment, such as every five or ten minutes.  The California Supreme Court has ruled, however, that this rounding practice is impermissible at the meal period.  Equally as troubling for employers, the Court also held that time records showing a noncompliant meal period raise a “rebuttable presumption” of meal period violations.

Los Angeles Mayor Gil Garcetti signed into law two new ordinances that affect certain employers in the following commercial sectors: airport businesses, commercial property businesses, event center businesses, and hotel businesses.  These ordinances give recall rights and impose obligations on employers upon a change in ownership.

City of LA’s first ordinance, known as the Right of Recall, requires covered employers to offer laid off workers new positions that become available.  The second ordinance, known as the Worker Retention Ordinance, requires covered employers of a business that has had a change in ownership to rehire workers who were employed by the prior business employer.

On December 6, 2019, a coalition of both national and state business organizations and trade associations filed a Complaint in the U.S. District Court for the Eastern District of California.  The lawsuit seeks both a preliminary and permanent injunction against implementation and enforcement of the recently enacted California law that makes it unlawful for California employers to require employees to sign arbitration agreements, under certain circumstances.

As California braces for wildfire season, the California Division of Occupational Safety and Health (“CalOSHA”) approved an emergency regulation on July 30, 2019, that requires California employers to monitor air quality for particle pollution, and reduce workers exposure to the potential harmful pollutants from wildfire smoke.

What Is Particle Pollution or Particle Matter?

The Air Quality Index (“AQI”) is calculated for four major air pollutants regulated by the Clean Air Act: ground level ozone, particle pollution, carbon monoxide and sulfur dioxide. The new regulation is aimed at protecting workers from certain particle pollution, also called particulate matter or PM. There are two types of PM – fine particles (2.5 micrometers or less in diameter, referred to as PM2.5) and course particles (particles between 2.5 and 10 micrometers in diameter, referred to as PM10). The new regulation is directed only at the fine particles, or PM2.5, which are produced from all types of combustion, including wildfires. 

The presence of alcohol in offices has ebbed and flowed over time and largely depended on the type of business, from drink carts in advertising agencies à la Mad Men to keg refrigerators at startups. The once popular office perk may or may not be waning, but the number of companies addressing the issue and the attention those decisions are generating is certainly increasing. Companies across the country are evaluating their alcohol policies, or lack thereof, particularly in light of #MeToo developments and are considering the following:

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

California was one of the leading states to tackle pay discrimination by banning inquiries into salary history.  California Labor Code Section 432.3, which went into effect on January 1, 2018, prohibits public and private employers from seeking or relying upon the salary history of applicants for employment.  But some of the law’s terms were undefined and some of the provisions were unclear, so after Section 432.3 went into effect, employers had questions about how to remain compliant with the law when hiring new employees.

In a highly anticipated opinion, a Federal Judge in California ruled in favor of GrubHub, an internet food ordering service, finding it properly classified a delivery driver as an independent contractor.

In Lawson v. GrubHub, the plaintiff, a delivery driver, alleged that GrubHub violated California’s minimum wage, overtime and employee expense reimbursement laws by misclassifying him as an independent contractor when he was really an employee.  He brought the case on behalf of himself and as a representative action pursuant to the California Private Attorney General Act (PAGA).