California 2020 Employment and Labor Law Update - January 14, 2020 Arden Hills Presentation - Palmer ...
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California 2020
Employment and Labor
Law Update
January 14, 2020
Arden Hills Presentation
Founded in 2000 by Floyd Palmer & Larry M. Kazanjian. Clients range from small businesses to Fortune 500 companies. Committed to meeting the expectations of every client by developing trust and tailoring offerings to each client’s needs.
• Partner with Palmer Kazanjian since 2002
• 20+ years’ experience advising executive management,
in-house corporate legal counsel, labor relations
administrators, and human resource professionals
• Member of the Labor and Employment Law Sections of
the State and County Bar Associations
• Recently published articles on Assembly Bill 5 and other
Labor and Employment Laws
• J. Reuben Clark Law School (Brigham Young University)
Treaver Hodson, Esq.
California Case Law
Updates
Employment Law Cases
▪ Williams v. Sacramento River Cats Baseball Club, LLC, 40 Cal.
App. 5th 280 (2019)
– Held job applicants cannot bring a wrongful termination in violation of
public policy claim against employers because there is no preexisting
employment relationship.
– However, job applicants can bring actions under the California Fair
Employment and Housing Act for discriminatory refusal to hire.
Employment Law Cases
▪ Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019)
– Held arbitration on a class wide basis cannot occur unless the
arbitration agreement explicitly provided for it.
– Heightens the value of arbitration agreements in limiting liability.
Employment Law Cases
▪ Ward v. Tilly’s Inc., 31 Cal. App. 5th 1167 (2019)
– Expanded employer’s reporting time pay obligations.
– Held that if an employer requires its employees to call in two hours
before a potential shift to determine if the employee needs to report to
work, and the employee is told to not report, the employer must pay the
employee at least two hours of pay at their regular rate.
Employment Law Cases
▪ Salazar v. McDonald’s Corp., 939 F.3d 1051 (9th Cir. 2019)
– Clarified joint employer classification in the franchise context.
– Held a franchisor was not the joint employer of franchisee’s workers
because franchisor did not exercise direct control over the workers’
wages, hours, or working conditions.
– Franchisor exercising control over franchisee to maintain quality control
and brand standards does not make them joint employers.Employment Law Cases
▪ Henderson v. Equilon Enterprises, LLC, 40 Cal. App. 5th 1111
(2019)
– Held the ABC test set forth in Dynamex does not apply to the joint
employer context.
▪ Ferra v. Loews Hollywood Hotel, LLC, 40 Cal. App. 5th 1239
(2019)
– Timekeeping systems that round both upward and downward to the
nearest quarter-hour are lawful.
– Neutral rounding policies are lawful even if a small majority of employees
loses compensation.Employment Law Cases
▪ John Doe v. Department of Corrections and
Rehabilitation, E071224 (2019)
– Held a supervisor’s behavior is not harassment if it was
unavoidable conduct related to the supervisor’s job
description.
– If a supervisor’s actions can be fairly characterized as an
official employment action, it is not considered harassment.
– Employers need information about the nature and extent of
an employee’s claimed disabilities in order to determine if
they can reasonably provide a reasonable accommodation.Employment Law Cases
▪ Glynn v. Superior Court, 42 Cal. App. 5th 47 (2019)
– Held that if an employer mistakenly believes an employee is disabled
and cannot perform essential duties with reasonable accommodation
and terminates the employee, the employer can be held liable.
– A legitimate company policy, if mistakenly applied, may result in FEHA
disability discrimination liability.
▪ Jimenez v. U.S. Continental Marketing, Inc., 41 Cal. App. 5th
189 (2019)
– Held a contracting employer may have FEHA liability for a temporary
worker if the employer exercises direction and control over the worker.Employment Law Cases
▪ ZB, N.A. v. Superior Court of San Diego County, 8 Cal. 5th 175
(2019)
– Held claims of underpaid wages are not classified as civil penalties that
are recoverable within a PAGA claim.
– Underpaid wages are a form of compensatory relief, not a civil penalty,
and PAGA claims are only for the recovery of relevant civil penalties.
▪ Moorer v. Noble LA Events, Inc., 32 Cal. App. 5th 736 (2019)
– Held an individual employee is not able to recover the entire amount of
civil penalties provided for all aggrieved employees through a PAGA
claim.
– If a PAGA plaintiff does not agree to allocate the penalties to all
aggrieved employees, the case can be dismissed.Employment Law Cases
▪ Ridgeway v. Walmart, No. 17-15983 ( 9th Cir. 2020)
– A class of truck drivers filed a claim for alleged wage and hour
violations.
– Ninth Circuit panel affirmed district court judgement awarding damages
for the class action.
– Held that the time drivers spend on layovers are compensable if Wal-
Mart exercised control over the drivers during those breaks.Federal Updates
NLRB Decisions
▪ Valley Hospital Medical Center, Inc., 368 NLRB 139 (2019)
– Held that an employer’s statutory obligation to check off union dues ends
when the collective bargaining agreement that contained the checkoff
provision expires.
– Statutory obligations for dues checkoffs are rooted in the contract, so
enforceability of this provision of an agreement does not extend beyond the
life of the contract.
▪ Kroger Limited Partnership I Mid-Atlantic, 368 NLRB 64 (2019)
– Held employers may prohibit nonemployee union solicitation on company
property that is otherwise open to the public.
– Also held employers may prohibit this solicitation even if the employers
allow nonemployee solicitation for civic or charitable purposes.NLRB Decisions
▪ Alstate Maintenance, LLC, 367 NLRB 68 (2019)
– Restricted the definition of protected concerted activity under the National
Labor Relations Act.
– Held only complaints made as a group and complaints that seek to initiate
group action are protected concerted activity.
– Individual gripes to management made in a group setting are not protected
concerted activity.
▪ Caesars Entertainment, 368 NLRB No. 143 (2019)
– Held employees have no statutory right to use employer equipment, for
example emails and other IT resources, for non-work-related
communications, including Section 7 purposes.
– The exception to this rule is in the rare instances where the employer’s email
system is the only reasonable means for employees to communicate with
one another.NLRB Decisions
NLRB Decisions
▪ Apogee Retail, 368 NLRB No. 144 (2019)
– Confidentiality in investigations.
▪ EA Renfroe, 368 NLRB No. 147 (2019)
– Articulating the current board position on mandatory arbitration.
–Practical Tips for 2020
Hiring Guidelines
Hiring Guidelines
▪ Salary History
– Employers are prohibited from asking job applicants about their salary
histories.
▪ Employee versus Independent Contractor
– Employers must ensure they are in compliance with the ABC test or an
exception when classifying hired individuals as independent contractors.
– Should also consider audits of existing independent contractors.
▪ Reclassification may necessary in light of AB 5.Employer Policies and Employee Handbooks
Employer Policies and Employee Handbooks
Employer Policies and Employee Handbooks
▪ The following employer policies may need to be updated or
created:
– Grooming Policy: Review policy to ensure compliance with SB 188’s
protected hairstyles and grooming standards.
– Drug Policy: Employers have the option to create policies regarding drug
testing (i.e. marijuana) of employees or job applicants.
– Lactation Accommodation Policy: Employers should review current
lactation accommodation polices to ensure that employees are provided
an accommodation according to the new laws.Employer Policies and Employee Handbooks
▪ Employee handbooks should be updated to address the state
and federal updates that impact employee rights and benefits.
– Employee Settlements: Employers should revise policies regarding
employee settlement/separation agreements to only include “no re-hire
provisions” where allowed by law.
▪ “No re-hire provisions” may still be included in severance/settlement
agreements that are entered into in responses to demand letters or unfiled
claims.
– Paid Family Leave (PDL): Employers should revise their current policies
regarding paid family leave to reflect the increase from six to eight weeks
of leave.
Note: This list is by no means exhaustive. Employers
are encouraged to seek legal counsel to review
employee handbooks and policies.Marijuana in the Workplace
Marijuana in the Workplace
▪ Recreational use of marijuana is legal in California.
▪ California has no laws that expressly regulate an employer’s
ability to conduct drug tests.
▪ “Reasonable suspicion” testing of employees.
▪ Pre-employment drug testing.
– If an employer requires pre-employment drug testing, the employer
should test all applicants for the particular position.
▪ May be beneficial to develop employer drug policies.CCPA Requirements
▪ Update websites to inform consumers of their rights and to
provide ability for consumers to request the personal
information that was collected.
▪ Provide access to a toll-free number for consumers to use to
request the personal information that was collected.Cases to Watch in 2020
U.S. Supreme Court Cases to Watch in 2020
▪ Altitude Express, Inc. v. Zarda; Bostock v. Clayton County,
Georgia
– Does Title VII’s prohibition of sexual discrimination encompass
discrimination based on sexual orientation?
▪ R.G. & G.R. Harris Funeral Home, Inc. v. U.S. Equal
Employment Opportunity Commission
– Does Title VII prohibit discrimination against transgender employees?
▪ Intel Corp. Investment Policy Committee v. Sulyma
– Does the ERISA statute of limitations run from the date that all relevant
information regarding a breach or violation was disclosed to the
employee, even though the employee chose not to read or could not
recall reading the information?California Supreme Court Cases to Watch in 2020
▪ Ward v. United Airlines, Inc.; Vidrio v. United Airlines, Inc. (9th
Circuit)
– Does Labor Code section 226 apply to wage statements provided by an
out-of-state employer to an employee who resides in California, receives
pay in California or any other state?
▪ Sandoval v. Qualcomm Inc. (4th DCA)
– Can a company that hires an independent contractor be liable in tort for
injuries sustained by the contractor’s employee based solely on the
company’s negligent failure to undertake safety measures or is more
affirmative action required to implicate Hooker v. Department of
Transportation, 27 Cal. 4th 198 (2002)?California Supreme Court Cases to Watch in 2020
▪ Oman v. Delta Air Lines, Inc. (9th Circuit)
– Does the California minimum wage and wage statement laws 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?
▪ Kim v. Reins International California, Inc. (2d DCA)
– Does an employee bringing an action under PAGA lose standing to
pursue representative claims as an aggrieved employee by dismissing his
or her individual claim against the employer?California Supreme Court Cases to Watch in 2020
▪ Donohue v. AMN Services, LLC (4th DCA)
– Can employers utilize practices upheld in the overtime pay context to
round employees’ time to shorten or delay meal periods?
▪ Frlekin v. Apple, Inc. (9th Circuit)
– Is time spent on the employer’s premises waiting for, and undergoing,
required exit searches of packages, bags, or personal technology devices
voluntarily brought to work purely for personal convenience by
employees compensable as “hours worked” within the meaning of
California Industrial Welfare Commission Wage Order No. 7?Legislation to Watch in 2020
Federal Legislation to Watch in 2020
▪ Protecting the Right to Organize Act (PRO Act) – H.R. 2474
– Comprehensive labor law act that would change the labor law landscape
and provide more rights to workers.
– Among the proposed changes:
▪ Codification of the ABC test.
▪ Prohibition on collective and class action litigation waivers
▪ Prohibit employers from being able to lock out employees who threaten to
strike.California Legislation to Watch in 2020
The California Legislature is expected to consider several
employment issues, including:
▪ Independent contractors versus employees, such as
additional AB 5 exceptions
▪ Data collection and privacy
▪ Immigration
▪ CannabisCalifornia Regulations to Watch in 2020
The Fair Employment and Housing Council is working on
revisions to regulations regarding:
▪ Ban-the-box criminal history
▪ The New Parent Leave Act
▪ Religious creed and age discriminationTHANK YOU!
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