2021 California Legislative and Case Law Update - Date: January 20, 2021 John Skousen, Esq. Lizbeth Ochoa, Esq. Spencer Waldron, Esq - Industry ...
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2021 California Legislative and
Case Law Update
John Skousen, Esq.
Lizbeth Ochoa, Esq.
Spencer Waldron, Esq.
Date: January 20, 2021
fisherphillips.com
COVID-19 and the California Legislature
• Legislature recessed for
several months due to
COVID-19
• Shortened timelines for
hearing bills
• Limited number of bills – only
about 25% of normal volume
of bills moved this year
• Governor signed/vetoed bills
up to September 30
Takeaway of 2020 – One Word COVID What can we expect in 2021 –COVID • The majority of the laws, regulations, guidelines of 2020 were attributed to COVID • With Legislature out of town, Governor Newsom issued dozens of Executive Orders on his own. • Many local governments passed COVID-19 paid sick leave and other employment ordinances. • Because the vaccines are not getting to the mass population as quickly as hoped, at minimum, COVID will continue to be a guiding topic impacting how companies do business well into 2021
Executive Order N-31-20 – WARN Act “Loosens” the California WARN Act’s 60-day notice requirement if the following three conditions are met: 1) The shutdown was caused by unforeseen COVID-19 business circumstances. 2) The employer still provides written notice to employees, EDD and local officials. 3) The written notice contains specified information.
New Cal/OSHA Emergency Standard
• New emergency standard
approved by OSHA Standards
Board on November 19.
• Effective November 30, 2020
but some leniency until 2/2/21
on certain aspects.
• Very prescriptive and detailed,
and now Cal/OSHA can cite
employers for violations.
• Includes a significant paid time
off mandate for employees
excluded from the worksite.
New Cal/OSHA Emergency Standard Written COVID-19 Prevention Program • Must include specific elements • May be a stand-alone document or incorporated into an employer’s existing IIPP Notice of COVID-19 Exposures and Cases • Must notify within one business day close contacts, all employees and onsite vendors • Many of the notice requirements overlap with AB 685 (discussed later), but there are some differences • Must notify local public health departments of “outbreaks” within 48 hours- some health departments require calling in the information others have an online form you submit- check with your health department in advance!
New Cal/OSHA Emergency Standard Exclusion of COVID-19 Cases and Exposures • Very specific timelines for requiring exclusion of employees that have COVID-19 or have been exposed (immediately but no later than 1 day) • Must continue and maintain earnings, seniority, benefits and right to return to former job for work related cases so long as employees is able and available to work (if source of COVID exposure unknown employer carries burden to establish not work related) (Caution: potential wage and hour violations if an employer should have paid the wages) • FAQs issued Jan. 8, 2021 by IWC indicate that the continued earnings would not apply if not work related and/or if the employee is too sick that they would qualify for disability or worker’s compensation benefits instead
New Cal/OSHA Emergency Standard
Specific Return to Work Criteria
• Cannot insist that employees obtain a negative test before
returning to work (differs from CDC guidelines)
• Return to work criteria recently reduced by CDC and state for
employees with symptoms. Now employee may return to
work at day 11 but only under the following conditions:
• (1) employee does not have fever for 24 hours without the use of fever
reducing medications;
• (2) the other symptoms have improved (they do not need to be
completely gone) AND
• (3) at least 10 days have passed since the symptoms first appeared.
New Cal/OSHA Emergency Standard
Specific Return to Work Criteria
• Current Return to Work Criteria for employee who never
experienced symptoms:
• At least 10 days have passed since the date of the specimen collection
of the employee’s first COVID-19 test (in other words, at least 10 days
after the employee 1st took the COVID test)
• Caveat: Employee’s health care provider or Health Officer releases
employee at an earlier or later time.
New Cal/OSHA Emergency Standard Testing • Must offer free testing during working hours when there has been one positive case in the workplace • Additional weekly or twice weekly testing requirements for “outbreaks” (3 cases in 14 days) and “major outbreaks” (20 cases in 30 days) Additional specific requirements related to physical distancing, face coverings, employer-provided transportation and housing, training and instruction
AB 685 – COVID-19 Reporting Obligation
• Legislation introduced
following some highly-
publicized “outbreaks” where
employers were alleged to
have not informed
employees.
• Imposes some significant and
complex notice requirements
that went into effect on
1/1/2021.AB 685 – What Triggers the Notice? Employers are required to provide notice within one business day when they receive “notice of a potential exposure.” • Notification from a public health official or medical provider that an employee was exposed to a qualifying individual at work. • Notification from the employee or their emergency contact that they are a qualifying individual. • Notification through employer’s testing protocol that they are a qualifying individual. • Notification from a subcontracted employer that a qualifying individual was on the worksite.
AB 685 – What is a Qualifying Individual? 1) Has a laboratory-confirmed case of COVID-19. 2) Has a positive COVID-19 diagnosis from a licensed health care provider. 3) Has a COVID-19 related order to isolate from a public health official; or 4) Has died from COVID-19.
AB 685 – Who and What? 1) Must give notice to employees (and any employees of subcontractors) who were on the premises at the same worksite as the qualifying individual that they may have been exposed. 2) Must give notice to employees (and any employees of subcontractors) who may have been exposed with information about COVID-19 related benefits they might be entitled to under federal, state and local law. 3) Must notify all employees of the disinfection and safety plan that the employers plans to implement per CDC guidelines.
AB 685 – “Outbreak” Notice If number of cases meets the definition of an “outbreak” (generally 3 cases) must notify local public health agency within 48 hours of: • Names of employees • Number of employees • Occupation and worksite of employees • Business address and NAICS code of the worksite Must also notify local public health of any subsequent cases.
AB 1867 & FFCRA– Supplemental COVID- 19 Paid Sick Leave- Expired 12/31/20 But Might Be Back • One of the most popular areas for legislative activity at the local, state and federal (FFCRA) levels. • All aimed at providing employees with paid sick leave for COVID-related reasons. • Both laws have now expired but employers formerly subject to FFCRA may continue to provide the COVID pay and get the tax credit through March 2021.
Executive Order N-362-20 – Workers’
Compensation Presumption
• Establishes a “rebuttable presumption” that an employee who
contracts COVID-19 caught it at the workplace and is covered
by workers’ compensation where:
• The employee tested positive or was diagnosed with COVID-19 within
14 days of performing work at the employer’s direction (on or after
March 19, 2020).
• The workplace is not the employee’s home.
• A licensed physician issued the diagnosis and a test confirmed the
diagnosis within 30 days.
• Shortens period for rejection of claims from 90 days to 30 days.
• Only applies until July 5, 2020.SB 1159 – Workers’ Compensation
Presumption
• Subject of one of Governor
Newsom’s Executive Orders
during the pandemic.
• One of the hot issues when
the Legislature returned –
multiple bills dealt with this
subject.
• Ultimately, the bill that was
signed was SB 1159.
• Went into effect immediately.SB 1159 – Workers’ Compensation
Presumption
The law has three parts:
1. Codifies Executive Order that ran through July 5, which said:
• A case is presumed to be covered by W/C if infected employee tests
positive or is diagnosed within 14 days of their last day worked outside
the home
• The physician diagnosis must be confirmed by a test within 30 days
• The presumption is rebuttable by evidence, but the claim must be
denied within 30 days to be eligible for rebuttal
2. Extends the above for first responders and healthcare
providers so that the E.O. provisions bridge beyond July 5 for
those groupsSB 1159 – Workers’ Compensation
Presumption
3. Creates a new rebuttable presumption for cases occurring on or
after July 6 but only where the employer had an “outbreak”
An outbreak is:
• 4 positives in 14 days if 100 employees or less;
• 4 percent of employees if over 100;
• or closure by public health authorities
• Workers’ compensation carrier reporting requirement added as well
when an employee tests positive – three business days (plus a “look
back” reporting period to positive tests back to July 6…within 30
business days of effective date of bill).SB 1383 (Jackson) – CFRA Expansion • Originally part of Governor Newsom’s budget proposal. • Continuation of debate over recent years. • One of the few bills not directly related to COVID-19. • Employer concerns, especially on heels of COVID- 19 crisis.
SB 1383 (Jackson) – CFRA Expansion • Extends CFRA to apply to employers with five or more employees (from 50 or more). • Expands “family members” to include adult children, siblings, grandparents, grandchildren. • Potential stacking issue with FMLA. • Eliminates “two employees at same employer” rule. • Eliminates “highly compensated exemption” to reinstatement provisions.
SB 973 (Jackson) – Pay Data Reporting
• Intent is to apply the Obama pay
data reporting program that was
halted by Trump administration
• Employers with 100 or more
employees (and who must file an
EEO-1) must provide pay data to
the State
• Pay data reports will be due on
March 31, starting in 2021, for the
prior calendar year
• Reports must include race,
ethnicity, and sex
• Amends California Equal Pay Act
to allow DFEH to enforce, instead
of just the Labor CommissionerSB 973 (Jackson) – Pay Data Reporting Who Has to File? • Employees located inside and outside of California are counted when determining whether an employer has 100 or more employees (DFEH FAQs) • Includes part-timers • An employer has the requisite number of employees if the employer either employed 100 or more employees in the Snapshot Period chosen by the employer or regularly employed 100 or more employees during the Reporting Year
SB 973 (Jackson) – Pay Data Reporting Do You Have to Report Both California and Non- California Employees? DFEH FAQs – Employers Have Two Options: 1) Must include employees assigned to California establishments and/or working within California; and 2) May include other employees
SB 973 (Jackson) – Pay Data Reporting
• Reports must include:
• Race, ethnicity, and sex
• Job category (10 categories provided)
• Number of employees whose earnings fall within the pay bands used
by BLS
• Number of hours worked
• Report for each establishment and a consolidated report (like EEO-1)
• NAICS code
• Any clarifying remarks (voluntary)
• Allowed to use the EEO-1 as basis for the reportSB 973 (Jackson) – Pay Data Reporting • The information is private until the DLSE or DFEH use it to file an enforcement action • Previously only DLSE could enforce the CA Equal Pay Act • Reports will be maintained for 10 years • This will be a lot of work, so plan now!
AB 2992 (Weber) – Victims of Crime
• Amends existing law (LC 230 and 230.1) providing job-
protected time off for employees who are victims of domestic
violence, sexual assault or stalking to include:
• A victim of a crime that caused physical injury or that caused
mental injury and a threat of physical injury.
• The immediate family member (child, parent, spouse, sibling,
or “equivalent”) of a person who is deceased as the direct
result of a crime.AB 2257 – AB 5 Follow-Up • Debate continues regarding additional exemptions. • Same dynamic as last year – labor and Asm. Gonzalez in control of what was passed. • Several dozen Republican bills were not even heard.
AB 2257 – AB 5 Follow-Up
• This year, AB 2257 (which went into effect immediately on 9/4/2020) made a
number of changes to the exemptions under AB 5:
• There are now 109 exemptions from the ABC test.
• Key changes to the “business-to-business” exemption:
• Can provide services to the client as long as doing so under the name of
the business service provider and the business regularly contracts with
others.
• Merely have to show that the business service provider “can” contract with
others and “can” maintain a clientele of their own.
• Key changes to the “referral agency/service provider” exemption:
• Non-exclusive list of industries the exemption can apply to.
• But now specifically excludes janitorial, delivery, courier, transportation,
trucking, agriculture, retail, logging, in-home care, construction, or any
high-hazard industry.AB 3075 (Gonzalez) – Wage Theft • Author claimed bill is aimed at scofflaw employers that close down and re-open under a different name to avoid judgments and liability for wage claims. • Requires business at time of incorporation to attest that no officer or director has an outstanding final judgment.
AB 3075 (Gonzalez) – Wage Theft Establishes “successor” liability for a final judgment for wages and penalties where: 1) The successor uses substantially the same facilities or substantially the same workforce to offer substantially the same services. 2) The successor has substantially the same owners or managers that control labor relations. 3) Employs as a managing agent anyone who directly controlled the wages, hours or working conditions of the predecessor. 4) Operates a business in the same industry and the business owner has a partner, officer or director who is an immediate family member of the same of the predecessor.
AB 1947 – Retaliation Claims • Extends the deadline for filing a retaliation claim under LC 98.7 with DLSE from 6 months to one year. • Authorizes one-sided, plaintiff-only attorney’s fees for LC 1102.5 (whistleblower) claims. • Increases the stakes for such claims. • Makes them more expensive to settle. • Makes them more likely to be filed in court.
AB 1963 – Mandated Reporters
• Makes certain HR employees
and those who supervise
minors “mandated reporters”
for abuse and neglect.
• Requires employers to
provide those employees who
are mandated reporters with
training on such duties.
• May be online training from
Department of Social
Services.AB 1963 – Mandated Reporters
• “Human resource employee”
• The employee designated by the employer to accept complaints under
FEHA.
• Only those who work for FEHA-covered businesses (5 or more
employees).
• Supervisors of Minors
• Those whose duties require direct contact with, and supervision of,
minors in the workplace.
• Is a mandated reporter of sexual abuse only.
• Only those who work for FEHA-covered businesses (5 or more
employees).SB 1384 – Arbitration • An employee who is unable to have their claim adjudicated by DLSE because of an order to compel arbitration can request that the Labor Commissioner represent them in the arbitration. • A petition to compel arbitration of a claim pending under LC 98, 98.1 or 98.2 must be served on DLSE. • If requested by the employee, the Labor Commissioner can represent the employee in proceedings to determine the enforceability of the arbitration agreement (whether in court or in the arbitration).
AB 979 – Corporate Board Diversity • Follow up to prior legislation on female board members. • By end of 2021, a publicly held corporation with principal offices in California must have a minimum of one director from an “underrepresented community” on its board.
AB 979 – Corporate Board Diversity • “Underrepresented community” (UC) means an individual who self-identifies as Black, African-American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as LGBT. • By the end of 2022, these requirements increase: • If 9 or more directors, at least 3 directors from UCs. • If 5-9 directors, at least two directors from UCs. • If 4 or fewer, at least one director from UC. • Litigation has already been filed challenging this law.
Proposition 24 – CA Privacy Rights Act (CPRA) • Effective 1/1/2023, with some provisions having a lookback period of 12 months (i.e., compliance as of 1/1/2022) • Amends and expands the California Consumer Privacy Act • Changes to which businesses are required to comply with the CCPA • Extends until 1/1/2023 limited exemption for data from employee/job applicants and in B2B context
Proposition 24 – CA Privacy Rights Act
(CPRA)
• Data minimization: Cannot retain
data for longer than necessary for
disclosed purposes
• New requirements for a
business’s relationships with
vendors/service providers
• New right of consumers to
request correction of inaccurate
personal information
• Establishes the California Privacy
Protection Agency5 Minute Stretch Break
2021 Case Law Update
fisherphillips.comSanchez v. Martinez
(2020) 54 Cal.App.5th 535Sanchez v. Martinez
• Facts
• Farm laborers brought suit against former employer (Martinez) for
various labor law violations that allegedly occurred when the
employees pruned grape vines at a piece rate.
• The trial court directed former employer to pay $416 in damages and
$17,775 in civil penalties.
• On appeal, both parties challenge the trial court’s calculation of
damages and penalties.
• The former employees claim that they should be compensated twice for
the days that they took rest breaks without pay.Sanchez v. Martinez
• Result
• The Court of Appeal rejected the former employees’ calculation of
damages.
• Instead, the Court of Appeal found that piece-rate employees who are
provided with unpaid rest breaks are entitled to damages in the amount
of the minimum wage for actual unpaid time or an additional hour of
pay under CA Labor Code section 226.7, but are not entitled to both.
• Applying that principle here, the Court of Appeal declined to reverse the
trial court’s holding because it found that the former employees did not
suffer actual prejudicial error because the former employees had
already recovered the minimum wage for the actual time they took rest
breaks without pay.Oman v. Delta Air Lines, Inc.
(2020) 9 Cal.5th 762Oman v. Delta Air Lines, Inc.
• Facts
• Flight attendants brought a class action against Delta Air Lines alleging various wage and
hour violations.
• Specifically, they alleged that Delta failed to pay its flight attendants in accordance with
the state’s minimum wage laws, provide comprehensive wage statements, and timely pay
wages.
• Issues
1. Do sections 204 and 226 apply to wage statements provided by an out-of-state employer
to an employee, who in relevant pay period, works in California only episodically and for
less than a day at a time?
2. Does California minimum wage law apply to all work performed in California for an out-of-
state employer by an employee who works in California only episodically and for less than a
day at a time?
3. Does Armenta/Gonzalez bar on averaging wages apply to a pay formula that generally
awards credit for all hours on duty, but which, in certain situations resulting in higher pay,
does not award credit for all hours on duty?Oman v. Delta Air Lines, Inc.
• Result for Issue 1
• No, an employee is not entitled to protection under sections
204 and 226 unless California is the principal place that the
employee works during the relevant pay period.
• The court relied on Ward, which held that the principal place
of work test is satisfied if: (1) an employee works primarily
(majority of the time) in California; or (2) does not spend
majority of his or her time in any one state, but California
serves as his or her base of operations.Oman v. Delta Air Lines, Inc.
• Result for Issue 2
• The court did not reach the issue regarding California’s minimum wage laws because the
record established that Delta complied with state minimum wage law.
• However, the court’s opinion set forth standards for minimum wage laws and
compensation schemes for employees paid on an hourly basis or by task. See Id. at 781-
784.
• For example, the court stated: “For all hours worked, employees are entitled to the greater
of: (1) amount guaranteed by contract for the specified risk or period; or (2) the amount
guaranteed by the minimum wage. Whether a particular compensation scheme complies
with these obligations may be thought as two separate inquires. First, for each task or
period covered by the contract, is the employee paid at or above the minimum wage?
Second, are there other tasks or periods not covered by the contract, but within the
definition of hours worked, for which at least the minimum wage should have been paid?”
• Result for Issue 3
• The court declined to answer this – “In light of the answer to the question about the
legislative application of the state’s minimum wage laws, we do not address the separate
question concerning the geographic scope of that law’s application.”Ridgeway v. Walmart, Inc.
(2020) 946 F.3d 1066Ridgeway v. Walmart, Inc.
• Facts
• Long-haul truckers brought a class action against their employer,
Walmart, alleging that it did not pay them properly in accordance with
California law.
• On appeal, Walmart alleges that the district court erred in: (1)
concluding that it had jurisdiction; (2) in certifying the class; (3) in
interpreting California minimum wage law; (4) in allowing expert
testimony; and (5) in providing jury instructions.
• The Court of Appeal rejected each of these arguments and affirmed the
jury award of $44,699,766 for layovers, $3,961,975 for rest breaks, and
$2,971,220 for post-trip inspections.Ridgeway v. Walmart, Inc.
• Result
• First, the Court found that it did have jurisdiction over the case because it
presented an Article III case or controversy because the two lead plaintiffs
(truckers) remained in the action.
• Second, the Court determined that, under California law, the time that
truckers spend on layovers is compensable if the employer (Walmart)
exercised control over the truckers during those breaks.
• “[T]he district court correctly concluded that Walmart’s policies, if applied as written,
resulted in Walmart exercising control over employees during mandated layovers.”
• “Walmart’s written policy gave the company control over whether drivers could go
home during a layover period. Additionally, drivers that took an unauthorized layover
at home were subject to disciplinary action, including potential termination. As such,
Walmart’s policy dictated what drivers could do on layovers and restricted employees
from complete freedom of movement during breaks.”
• Third, the Court stated that the FAAA does not preempt California meal and
rest break laws.Ridgeway v. Walmart, Inc.
• Fourth, the Court stated that Walmart cannot meet rest period or
inspection payment requirements by “borrowing” from other
compensation sources, such as hourly rate or mileage payment.
• “[U]nder California law, all time worked must be accounted for in the
compensation scheme. In other words, an employer is not permitted to take a
worker’s entire salary – even if it is six figures – and divide it by the number of
hours worked to ensure that minimum wage was paid to all activities.”
• Fifth, the Court held that the district court did not err in certifying the
class and allowing representative evidence as proof of class-wide
damages.
• Finally, the Court affirmed the district court’s determination as to
liquidated damages, finding that Walmart acted in good faith and with
a reasonable belief in the legality of its actions.Kim v. Reins International
California Institute
(2020) 459 P.3d 1123, 259Kim v. Reins International California Institute
• Facts
• Kim brought a class/PAGA action against his employer alleging
various Labor Code violations.
• Kim’s individual claims were sent to arbitration because Kim had
signed an arbitration agreement. Kim’s PAGA claims were put on
hold until the conclusion of the arbitration.
• In arbitration, Kim and his employer settled. Thus, Kim dismissed
his individual and class claims. This left only the PAGA claim.
• The employer subsequently moved to dismiss the PAGA claim. In
doing so, the employer argued that the named representative
(Kim) was no longer an “aggrieved employee” as required under
PAGA because his individual claim had settled in arbitration.Kim v. Reins International California Institute
• Issue
• Do employees lose standing to pursue a claim under PAGA if they
settle and dismiss their individual claims for Labor Code violations?
• Result
• No, settlement of individual claims does not strip an aggrieved
employee of standing as the state’s authorized representative to
pursue PAGA remedies.
• The California Supreme Court reasoned that the employee’s continued
injury, or lack thereof, has no bearing on his or her standing or ability to
bring suit under PAGA.Anthony v. Trax International
Corporation
(9th Cir. 2020) 955 F.3d 1123Anthony v. Trax International Corporation
• Facts
• TRAX terminated Anthony from her position as a Technical Writer.
• Anthony brought suit, alleging that TRAX terminated her because of: (1) her
disability; and (2) for failure to engage in the statutorily required interactive
process to find her a reasonable accommodation.
• During the course of litigation, TRAX learned that Anthony did not have a
bachelor’s degree, which is required for the position of a Technical Writer.
Moreover, this was contrary to the representations that Anthony provided on
her employment application.
• Issue
• Under these circumstances, is after-acquired evidence that an employee
does not satisfy the prerequisites for the position, including educational
background, render the employee ineligible for relief under the Americans
with Disabilities Act (“ADA”)?Anthony v. Trax International Corporation
• Result
• The Ninth Circuit permitted the employer to offer this after acquired evidence
in order to demonstrate that Anthony was not qualified for the position under
the ADA.
• Thus, in light of the after acquired evidence, the court found that: (1) Anthony
was not qualified for the position as a Technical Writer because she did not
have a bachelor's degree; and (2) that TRAX was not required to engage in
the interactive process because Anthony was not qualified for the position.
• In reaching this conclusion, the court distinguished the use of after-acquired
evidence in Age Discrimination Employment Act (“ADEA”) from the ADA
because the ADA expressly limits its protections to “qualified individuals,”
whereas the ADEA does not have a qualified individual element.
• Takeaway
• Employers may use after-acquired evidence to demonstrate that a plaintiff is
not a qualified individual under the ADA.McPherson v. EF Intercultural
Foundation, Inc.
(2020) 47 Cal.App.5th 243McPherson v. EF Intercultural Foundation, Inc.
• Facts
• Employer had a written vacation policy in its employee handbook that
applied to hourly employees but did not apply to three exempt
managers.
• These managers were verbally told that they could take time off with
pay but did not accrue vacation days.
• If these managers wanted to take a vacation day, they were required to
notify their supervisor, and did not use the company’s online system to
request time off or that would track the number of days taken.
• At the end of their employment with the company, these exempt
managers were not paid out accrued, unused vacation time.McPherson v. EF Intercultural Foundation, Inc.
• Facts Continued
• These exempt managers brought suit alleging violation of Labor Code Section
227.3 and seeking waiting time penalties under Labor Code Section 203,
among other causes of action.
• The employer argued that it had an unlimited vacation policy; thus, these
exempt managers were not entitled to any payout under Labor Code Section
227.3.
• Issue
• When an employer’s policy allows an employee to take an unspecified
amount of paid time off without accruing vacation time, does the employee’s
right to that paid time off vest so the employer must pay her for unused
vacation under Labor Code section 227.3 when her employment ends?
• Or does section 227.3 apply only to policies providing a fixed amount of
vacation that accrues over time?McPherson v. EF Intercultural Foundation, Inc.
• Result
• The Court of Appeal held that Labor Code section 227.3, which requires the pay out of
vacation at separation, applies to an employer’s unwritten “unlimited” vacation policy.
However, this “by no means holds that all unlimited paid time off policies give rise to an
obligation to pay ‘unused’ vacation when an employee leaves.”
• The Court of Appeal held section 227.3 applied to this Company’s purported unlimited
paid time off policy based on the particular facts of this case.
• The court noted that the company did not have a formal written unlimited vacation policy, did not
inform plaintiffs that they were entitled to unlimited vacation, and did not offer unlimited vacation
in practice.
• The court held that the policy had an implied limit of two to four weeks per year and that the
exempt managers generally could not and did not take more than this amount.
• Thus, the court awarded these exempt managers damages, but not wait time penalties.Bostick v. Clayton County, Georgia
(2020) 140 S. Ct. 1731Bostick v. Clayton County, Georgia • The Court’s opinion combined three cases - two involving employees who alleged that they were discriminated against because of sex when they were terminated based on their sexual orientation, and one involving an employee who alleged that she was terminated on the basis of sex when she was terminated for being transgender. • The U.S. Supreme Court ruled that workplace discrimination because of an individual’s sexual orientation or gender identity – including being transgender – is unlawful discrimination “because of sex” under Title VII of the Civil Rights Act of 1964. • The Court stated that: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Frlekin v. Apple, Inc.
(2020) 8 Cal.5th 1038Frlekin v. Apple, Inc.
• Facts
• Employees brought a wage and hour class action against
Apple, seeking compensation for time spent waiting for and
undergoing exit searches pursuant to Apple’s package and
bag search policy.
• Result
• The California Supreme Court held that time spent by
employees waiting for and undergoing security checks of
bags and other personal items is compensable time under
California law, even when the policy only applies to
employees who choose to bring personal items to work.Herrera v. Zumiez, Inc.
(2020) 953 F.3d 1063Herrera v. Zumiez, Inc.
• Facts
• Employees brought a class action against their former employer alleging that
Zumiez failed to pay employees reporting time pay for “Call In” shifts.
• At Zumiez, an employee scheduled for a Call-In shift must make herself
available to work during the shift, then call her manager thirty minutes to an
hour before the shift, or if she works a shift immediately before the Call-In
shift, contact her manager at the end of that shift. At that time, the manager
tells the employee whether she will be required to work during the Call-in
shift. If the employee does not work, Zumiez does not pay the employee.
• Issue
• Does an employee have to physically present himself or herself at the
workplace in order to “report to work” and thereby qualify for reporting time
pay under California law?Herrera v. Zumiez, Inc.
• Result
• While the appeal to this case was pending, the California Court of
Appeal decided Ward v. Tilly’s, Inc. Ward held that reporting time pay
must be paid under Wage Order 7 in a case that was factually similar.
• Thus, the Court of Appeal stated, “[b]ecause there is no persuasive
data to convince us that the California Supreme Court would decide
otherwise, we follow Ward’s ‘controlling interpretation of state law’ and
affirm with respect to the time pay claim.”
• “In sum, following Ward, we conclude that, under section 5 (A) of Wage
Order 7, a requirement that employees call their managers thirty
minutes to one hour before a scheduled shift constitutes ‘report[ing] to
work.’”Oliver v. Konica Minolta
Business Solutions
(2020) 264 Cal.App.5th 1Oliver v. Konica Minolta Business Solutions
• Facts
• Service technicians were required to drive their personal vehicles which
contained their employer’s tools and parts to customers sites to make repairs
on copiers and other machines.
• These service technicians did not report to an office for work and instead
drove from their homes to the first customer location of the day and, at the
end of the day, from the last customer location to their home.
• The service technicians filed a wage and hour class action against their
employer seeking wages for: (1) time spent commuting to the first work
location of the day and commuting home from the last work location; and (2)
reimbursement for mileage incurred during those commutes.
• Issue
• Is Konica legally obligated to pay class members wages for the time spent
driving their personal vehicles from their homes to the first work site of the
day and from the last work site of the day back to their homes?Oliver v. Konica Minolta Business Solutions
• Result
• The Court of Appeal held that there was a genuine dispute of material fact
precluding summary judgment.
• “If carrying tools…during the commute was optional, then a service technician was
not subject to the control of [Konica] for purposes of determining whether that time
was constituted as hours worked.”
• “Even if a service technician was required…to carry tools and parts during the
commute, the service technician would not be subject to the control of [Konica] during
the commute if the service technician was able to use the time effectively for the
service technician’s own purpose.”
• “[I]f a service technician was required during the commute to carry a volume of tools
and parts that did not allow the service technician to use the time effectively for the
service technician’s own purposes, then the technician would be subject to the control
of [Konica] for purposes of determining hours worked and entitlement to wages.”
• Takeaway
• The level of the employer’s control over its employees is determinative of
whether an activity is compensable under the control provision.David v. Queen of Valley
Medical Center
(2020) 51 Cal.App.5th 653David v. Queen of Valley Medical Center • Former nurse brought a wage and hour action against hospital employer alleging failure to provide meal and rest periods and failure to pay minimum wages. • The Court of Appeal held that hospital employer: (1) provided meal breaks as required by law; (2) provided rest breaks as required by law; and (3) employer’s policy of rounding employee hours up or down to the nearest quarter hour was lawful because it was neutral on its face and without an eye towards whether the hospital or employee benefited.
David v. Queen of Valley Medical Center
• Meal Breaks
• As to meal breaks, the court found that the employer hospital provided meal
breaks as required by law because it provided one meal period for every five
hours of work, and a second meal period for those who worked more than 10
hours.
• Moreover, the employee nurse could not recall missing a meal period or
notifying her employer about a missed meal period.
• She also could not recall a supervisor interrupting her meal periods with work-
related questions or requests.
• Her supervisors never told her to end a meal break early.
• She was never discouraged from taking a meal break.David v. Queen of Valley Medical Center
• Rest Breaks
• As to rest breaks, the court found that the hospital employer provided rest breaks
as required by law because the employee received a 15-minute rest period for
every 4 hours of work.
• Moreover, supervisors did not discourage employees from taking rest breaks
nor did they tell employees to cut their breaks short.
• Supervisors also did not interrupt rest periods with work-related questions or
requests.
• If co-workers did ask questions on break, the employee advised that she was
on a break and then left alone.
• In the few times that the employee did miss a break, she reported it and
received a extra pay pursuant to the hospital’s practice of paying premium for
a missed break whenever requested.
• The court rejected the employee’s claim that she had been denied a rest period
because charge nurses looked at the clock while she was on a break, and which
she interpreted as a signal to cut her break short.
• A supervisor’s glance at a clock does not constitute coercion or pressure
sufficient to undermine a formal policy of providing meal and rest breaks.David v. Queen of Valley Medical Center
• Rounding Policies
• The employee also challenged the employer’s rounding policy. However, the
court found that the policy was lawful.
• This is because the employer’s rounding policy was neutral on its face and
neutral in practice.
• The rounding policy was neutral on its face because it rounded all employee
time punches to the nearest quarter-hour without an eye towards whether the
employer or employee is benefitting from the rounding.
• The rounding policy was neutral in practice because it did not systematically
undercompensate. That is, sometimes in a given pay period the employee
gained minutes and compensation and sometimes lost minutes and
compensation.Robinson v. Southern Counties
Oil Company
(2020) 53 Cal.App.5th 476Robinson v. Southern Counties Oil Company • Robinson bought a class action against his former employer for alleged meal and rest break violations and sought civil penalties under PAGA. • In February 2019, the San Diego County Superior Court approved a settlement in a another class action that sought individual damages and civil penalties under PAGA for the same alleged Labor Code violations and which covered the time of Robinson’s employment. • The Court of Appeal held: (1) that even though Robinson had opted out of the other class/PAGA action, the settlement of that class/PAGA action prohibited Robinson’s claim; and (2) that Robinson could not maintain an action for alleged violations that occurred after he was no longer employed.
Robinson v. Southern Counties Oil Company • Specifically, the Court of Appeal held that while Robinson had opted out of the class settlement, “there is no mechanism for opting out of the judgment entered into on the PAGA claim.” • “[A]n aggrieved employee’s action under PAGA functions as a substitute for an action brought by the government itself.” • As a result, “a judgment in that action binds all those, including nonparty aggrieved employees who would be bound by a judgment in an action brought by the government.”
Starks v. Vortex Industries, Inc.
(2020) 53 Cal.App.5th 1113 (2020)Starks v. Vortex Industries, Inc.
• Facts
• Employees filed separate actions under PAGA against their employer alleging
violations of wage statutes and meal and rest period requirements.
• One of the employee’s cases settled. As a result, the Labor and Workforce
Development Agency (“LDWA”) accepted its share and the aggrieved
employees were paid out.
• Upon notice of this settlement, the other employee that had a pending PAGA
action moved to vacate this judgment and to intervene.
• However, upon settlement of the first case, the employer moved for summary
judgment to preclude the other employee’s case. Specifically, the employer
argued that the other employee’s case was barred by the doctrine of res
judicata.Starks v. Vortex Industries, Inc.
• Result
• The Court of Appeal held that summary judgment in this case was proper.
• This is because acceptance of judgment by the LWDA following settlement
precluded LWDA or its agents, including putative intervenor employees, from
challenging that judgment on appeal.
• “Because a PAGA plaintiff acts as a proxy or agent of the state’s labor law
enforcement agencies and the PAGA functions as a substitute for action
brought by the government itself, a judgment in that action binds all those,
including nonparty aggrieved employees who would be bound by a judgment
in an action brought by the government. Thus, although courts have held
different aggrieved employees may be deputized by the LWDA to pursue
PAGA actions concurrently against the same employer, a judgment obtained
in one action will bar other PAGA actions against the employer under the
doctrine of res judicata.”We encourage you to subscribe to Fisher Phillips’ alert system to
gather the most up-to-date information. Visit www.fisherphillips.com
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© 2021 Fisher & Phillips LLP *This presentation does not constitute legal advice.FOR ADDITIONAL RESOURCES ON COVID, AB685, CalOSHA COVID
EMERGENCY REGULATIONS SEE THE FOLLOWING:
1. CDC website: www.cdc.gov
2. Los Angeles County Health Department:
www.publichealth.lacounty.gov
3. California’s Department of Public Health:
www.cdph.ca.gov/COVID19
4. Department of Industrial Relations re: AB685:
www.dir.ca.gov/dosh/coronavirus/AB6852020FAQs.html
5. Department of Industrial Relations re: CalOSHA Emergency
Covid Regs.: www.dir.ca.gov/dosh/coronavirus/
fisherphillips.comJohn Skousen
Jskousen@fisherphillips.com
Liz Ochoa Spencer Waldron
Lochoa@fisherphillips.com Swaldron@fisherphillips.com
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