Last term, the United States Supreme Court issued its decision in Viking River Cruises, holding that the Federal Arbitration Act preempts California law prohibiting the arbitration of claims brought under the Private Attorneys General Act of 2004 (“PAGA”). In Viking River, the Supreme Court reasoned that while a plaintiff employee’s representative PAGA claims (that is, claims based on alleged Labor Code violations suffered by other employees) may not be compelled to arbitration, his or her individual PAGA claims (i.e., claims based on alleged Labor Code violations actually suffered by the plaintiff) may be so compelled. Addressing the question of what happens to the representative component of a PAGA claim when the individual PAGA claim is compelled to arbitration, the Supreme Court majority concluded that “[w]hen an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit.” Thus, in the Supreme Court majority’s view, an employee whose individual PAGA claim has been compelled to arbitration loses standing to raise representative PAGA claims in court.(more…)
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NLRB Prohibits Certain Confidentiality and Non-Disparagement Provisions in Severance Agreements
The National Labor Relations Board (“NLRB” or “Board”) issued a Decision and Order in McLaren Macomb and Local 49 RN Staff Council, Office and Professional Employees, International Union (OPEIU), AFL-CIO, Case 07-CA-263041 (“McLaren”), on February 21, 2023, reversing its position by reinstating prior NLRB precedent finding the use of certain confidentiality and non-disparagement provisions in severance agreements violates the National Labor Relations Act (the “Act”).(more…)
2023 Employment Law Update – New California Statutes to Consider
2023 will bring a variety of new California labor and employment laws that employers will need to stay abreast of as they review and update their policies and practices. This blog spotlights key pieces of legislation that will come into effect in the new year. Unless otherwise stated, the following new laws will take effect January 1, 2023.(more…)
California Enacts Law Prohibiting Discrimination Against Off Duty Cannabis Use
Effective January 1, 2024, AB-2188 will amend Government Code section 12954 and make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon:(more…)
Employees Entitled to Protected Leave Under the California Family Rights Act and the Healthy Workplaces, Healthy Families Act of 2014 for a “Designated Person”
Assembly Bill (“AB-1041”), signed into law by Governor Newsom on September 29, 2022, expands the list of individuals for which an employee can take leave under the California Family Rights Act (“CFRA”) and the Healthy Workplaces, Healthy Families Act of 2014 (“Mandated Paid Sick Leave”). (more…)
California Enacts Five Day Mandated Bereavement Leave
On September 29, 2022, Governor Newsom signed into law Assembly Bill 1949 (“AB-1949”), which guarantees employees five (5) days of bereavement leave following the loss of a family member under the Fair Employment and Housing Act (“FEHA”).(more…)
California Passes Pay Transparency Legislation Expanding Annual Pay Data Reporting Requirements for Private Employers with 100 or more Workers and the Posting of Pay Scales for Employers with 15 or more Workers
On September 29, 2022, Governor Newsom signed Senate Bill 1162 (“SB-1162”) into law requiring employers with 100 or more employees to file annual pay data reports with the State of California and disclose pay scales. A report released by the California Civil Rights Department (“CRD” f.k.a. the Department of Fair Employment and Housing) in March 2022 found women, Hispanic/Latino and Black/African American workers were overrepresented in the lowest pay scales. The legislation aims to address the workplace pay disparities and occupational segregation based on race, ethnicity, and sex across the state, and promotes compliance with anti-discrimination laws.(more…)
Viking River is Decided; Iskanian Rule of PAGA Exception to Arbitration Agreements is No More
On June 15, 2022 the U.S. Supreme Court issued its highly anticipated opinion in Viking River Cruises, Inc. v. Moriana, and has effectively wiped-out California’s prohibition on Private Attorney General Act (“PAGA”) waivers in arbitration agreements. To appreciate the significance of the decision, it is necessary to understand the history of PAGA, and how it has been used in litigation in recent years.(more…)
Legal Update – New California Supreme Court Case finds Rest and Meal Premiums to be Wages
On May 23, 2022, in the case Naranjo v. Spectrum Security Services, Inc., the Supreme Court of California held that employers must treat premium pay for noncompliant meal periods and rest breaks like wages. As a result, employers may now face substantial penalties due to derivative violations based the failure to follow wage laws. (more…)
US Supreme Court Upholds Employer Right to Require COVID-19 Vaccine and Imposition of Discipline for Violating Mandate
On April 18, 2022, the United States Supreme Court upheld an employer’s right to enforce a vaccine mandate resulting in the termination of the employee in Jonathan Dunn v. Lloyd J. Austin II, Secretary of Defense, et al. (more…)