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“No one is more hated than he who speaks the truth.” Plato We lawyers, if worth our salt, are in the truth business.
“No one is more hated than he who speaks the truth.” Plato
We lawyers, if worth our salt, are in the truth business. In the game this firm plays, also known as California employment litigation, this is our daily task: to educate and bring management-side clients to grips with the largely no-win task of fighting their way through often inflated or sometimes fully imaginary accusations. See, Trust Me, I’m A Lawyer, Mass Employment Litigation is No Fun (August 30, 2024)
There is perhaps nothing more frustrating for an employer than to face a court challenge under the Private Attorneys General Act (PAGA) claiming a kitchen sink collection of Labor Code violations. Perhaps rightfully proud of years of well-intended workplace practices, management can nevertheless find themselves being held up for civil suit ransom over technical violations that pose millions in penalties.
“New class action and California Private Attorneys General Act (PAGA) filings have grown exponentially in recent years and reached record numbers in 2023. This trend is raising concerns for California employers as the state courts have expanded liability risks for more claims and further restricted the applicability of arbitration agreements to PAGA claims.” The Data Is In—California Class Action and PAGA Filings to Hit New Highs (Ogletree Deakins, Jan. 12, 2024)
Of course, an employer’s best defense is perfect timekeeping, perfect pay statements, and perfect everything else in compliance with California’s extensive, stringent and regularly expanding Labor Code requirements. PAGA’s 2024 revisions are designed to bring some relief to business, emphasizing the sooner an employer strives to achieve that ideal the better, with zero or reduced potential liability for those taking such initiative.
“PAGA provides employers the opportunity to cure, or correct, certain violations during the notice period and avoid PAGA litigation and penalties. For notices filed on or after June 19, 2024, the PAGA reform legislation expanded the types of violations that can be cured. Violations that can be cured now include claims for minimum wage, overtime, meal and rest breaks, necessary expense reimbursement, and all requirements for itemized wage statements, among others. All cure notices or proposal and cure disputes must be submitted online through the PAGA Filing Portal.” Private Attorneys General Act (PAGA) Frequently Asked Questions, California Labor Workforce Development Agency (LWDA) (2024).
Take-Aways:
As the LWDA’s FAQs underscore, correction of workplace practices under PAGA’s guidelines can involve many moving parts. Yet, whatever the cure, its cost in resources and attention are a vast savings over the often-crushing expense and potential business-ending consequences of a PAGA lawsuit that otherwise could have been avoided.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
December 13, 2024
Effective January 1, 2025, SB 399 bans employers from holding any mandatory meetings (also called “captive audience meetings”) to discuss politics or religion with their employees, defining those subjects as: “’Political matters’ means...
Effective January 1, 2025, SB 399 bans employers from holding any mandatory meetings (also called “captive audience meetings”) to discuss politics or religion with their employees, defining those subjects as:
Employees may decline to take part in any such meetings or discussions and employers may take no consequent adverse action (e.g., discrimination, retaliation, threats of discharge). If employees continue working rather than attending a political or religious meeting, the employer must pay them.
Violations of SB 399 are subject to a $500 fine.
Religious organizations not covered by discrimination laws, political organizations, educational organizations or non-profits requiring coursework or other mission-related political or religious requirements, are exempt from this law. Communication about such subjects in the context of civil rights or other required education of employees is also permitted.
On the federal level, in Amazon.com Services LLC, the National Labor Relations Board (NLRB) has banned captive audience meetings where employers present their positions on unionization.
Neither SB 399 nor the Amazon.com Services decision prohibits employers from holding such meetings with advance notice of the subjects and voluntary employee attendance.
Take-Aways:
Employers must ensure any discussions with employees about religion, politics, or unionization are entirely voluntary. And they should never take any kind of retaliatory or discriminatory action for an employee’s non-participation.
See Also:
Helena Kobrin
December 6, 2024
Since 2014, California’s Fair Employment and Housing Act ( FEHA ) has prohibited national origin discrimination against an individual for holding a so-called “AB 60” driver’s license available to undocumented workers under California...
Since 2014, California’s Fair Employment and Housing Act (FEHA) has prohibited national origin discrimination against an individual for holding a so-called “AB 60” driver’s license available to undocumented workers under California Vehicle Code 12801.9. However, this has not barred employers for rejecting applicants or terminating workers for lacking any driver’s license.
Taking this further, recently-enacted SB 1100 amends FEHA making it unlawful to include mandatory driver’s license statements in job advertisements, postings, applications, or other employment materials unless the employer:
The legislature explains that “[b]asing hiring decisions on whether or not a candidate has a driver's license or owns a vehicle can perpetuate broader systemic biases and assumptions about who is considered a ‘desirable’ or ‘reliable’ employee. This can contribute to discrimination against marginalized communities and reinforce socioeconomic disparities while also perpetuating car dependency, as people are made to feel that they must own a vehicle in order to gain employment.”
In effect, SB 1100 makes not having a driver’s license a protected class unless the employer can meet the above exceptions.
Take-Aways:
As of January 1, 2025, even employers who can satisfy the first condition cannot ask for a driver’s license unless they properly evaluate and determine that alternate forms of travel would not suffice. All covered employers should review their job postings and job descriptions and train their HR team to ensure compliance.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
December 5, 2024
The nationwide “ ban-the-box ” movement is part of government’s effort to remedy blanket disqualification of job applicants with criminal records.
The nationwide “ban-the-box” movement is part of government’s effort to remedy blanket disqualification of job applicants with criminal records. Ban-the-box laws typically require employers to eliminate the criminal history question on a job application, reduce an employer’s accessibility to criminal records until after extending a conditional job offer, and require the criminal offense to be relevant for that job position to use it as a disqualifying factor.
Following San Francisco, Los Angeles City, Los Angeles County, and California’s statewide Fair Chance Act, San Diego County (the County) has adopted the San Diego County Fair Chance Ordinance (FCO). See also, San Diego County Fair Chance Ordinance hiring toolkit.
Effective October 10, 2024, the FCO applies to any employer -- including job placement agencies -- located or doing business in the unincorporated areas of the County that employs five or more employees.
The FCO also covers individuals whose employment involves, or will involve, performing at least two hours of work on average each week within the unincorporated County.
Covered employers should pay particular attention to these unique points:
Rescinding the Conditional Job Offer:
An employer subject to the FCO must make a written individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship with the specific duties of the job that justify withdrawing the conditional job offer, along with written notice of the person’s right to file a complaint with the County.
Holding the Position:
Barring exigent circumstances requiring the position to be filled immediately, the employer must keep the position open for up to 10 business days to permit the applicant to respond to the employer’s preliminary decision to withdraw the conditional job offer.
Recordkeeping Obligations:
Employers must retain all documents related to the written assessment for one year following the receipt of the employment application.
Penalties:
Violators can incur penalties of up to $20,000 for each aggrieved applicant or employee.
Take-Aways:
Covered employers should carefully review their job postings, webpages, and conditional job offer letters to ensure proper compliance with statewide and local fair chance legislation.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
November 27, 2024
Effective January 1, 2025, SB 988 provides new protections for freelance workers.
Effective January 1, 2025, SB 988 provides new protections for freelance workers.
“Freelance worker” is defined as an individual or single-person organization, incorporated or not, which a hiring entity engages “as a bona fide independent contractor to provide professional services” of $250 or more, either singly or combined with services in last 120 days.
SB 988 adopts Labor Code 2788’s 15-part definition of professional services, covered in What’s New In 2021: California’s Newest Independent Contractor Law Part 3 (October 10, 2020). For a freelancer providing any such services, valid independent contractor status requires:
SB 988 does not apply to state and federal governments or foreign entities or individuals engaging services for themselves, their families, or their homestead.
Take-Aways:
A company that wishes to hire an individual or single-person company as an independent contractor must determine if the prospect falls under Labor Code 2788’s 15 professional services categories and, if so, document the relationship in a written contract fulfilling all SB 988 requirements.
For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
November 20, 2024
Since the 1959 enactment of California’s Fair Employment and Housing Act (FEHA), the statewide Civil Rights Department (CRD) (formerly the Department of Fair Employment and Housing or DFEH) has been the sole authority to enforce workplace...
Since the 1959 enactment of California’s Fair Employment and Housing Act (FEHA), the statewide Civil Rights Department (CRD) (formerly the Department of Fair Employment and Housing or DFEH) has been the sole authority to enforce workplace discrimination laws. SB 1340 now permits cities and counties to enact and enforce local ordinances prohibiting discrimination so long as:
The law allows a complaining party two possible bites at the apple. If that person chooses not to combine FEHA and other state claims with the local ordinance claim, his/her right to file a state law claim is on hold (tolled). That individual then has the option of later going to court on FEHA or other statewide grounds.
For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
Take-Aways:
SB 1340 is yet another reason employers must carry clear prevention and resolution policies and regularly train all management and staff in their enforcement.
See Also:
Helena Kobrin
November 15, 2024
Recently enacted Senate Bill 1137 clarifies that California’s anti-discrimination and anti-harassment laws based on protected classifications – such as race, gender, age, disability and sexual orientation – also apply to “intersectional...
Recently enacted Senate Bill 1137 clarifies that California’s anti-discrimination and anti-harassment laws based on protected classifications – such as race, gender, age, disability and sexual orientation – also apply to “intersectional identities” in which two or more of these classifications can result in a unique form of discrimination.
Intersectionality refers to how combined forms of discrimination can exacerbate each other and result in amplified prejudice and harm. For example, a Black woman could face workplace discrimination based on a combination of race and gender that subjects her to stereotypes not shared by Black men or white women.
The bill’s author, Senator Smallwood-Cuevas stated: “Discrimination transcends singular dimensions…and not only happens based on one protected class, such as race, gender or age, but any combination thereof. This bill is common-sense reform that addresses the intersectionality of discrimination cases, providing greater protections for Californians, especially those from our most marginalized communities of color.”
Take-Aways:
Effective January 1, 2025, California employers should update their equal employment opportunity statements and anti-harassment policies with the assistance of competent legal counsel and train managers on recognizing and preventing intersectional biases.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
November 15, 2024
As previously reported , California’s Fair Employment and Housing Act ( FEHA ) prohibits racial discrimination for an employee’s and applicant’s “historically” race-related hairstyles under the 2019 Creating a Respectful and Open Workplace...
As previously reported, California’s Fair Employment and Housing Act (FEHA) prohibits racial discrimination for an employee’s and applicant’s “historically” race-related hairstyles under the 2019 Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act.
Recently-enacted AB 1815 removes that vague and undefined “historically.” Thus, simply:
Employers of course may require all employees to maintain a clean and neat appearance. However, dress and grooming policies must not prohibit protective hairstyles.
Take-Aways:
AB 1815 applies retroactively as a declaration of existing law. California employers should promptly update their dress code policies and equal employment opportunity statements with the assistance of competent legal counsel.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
November 8, 2024
Unemployment Insurance Code 3303.1 has permitted California employers to require an employee to take up to two weeks of earned, unused vacation prior to commencing Paid Family Leave (PFL). No longer.
Unemployment Insurance Code 3303.1 has permitted California employers to require an employee to take up to two weeks of earned, unused vacation prior to commencing Paid Family Leave (PFL).
No longer. Under AB 2123, effective January 1, 2025, employers may not compel workers to take pre-PFL paid vacation.
For further assistance, please contact one of our attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
Take-Aways:
The change underscores the need for at least annual workplace policy review and revision to stay current with changing state and federal laws. Coming soon: our 2025 model handbook and forms amendments.
See also:
Helena Kobrin
November 1, 2024