California employers for the most part play it safe by following their job reference policies allowing them to state period of employment, job title, and possibly compensation (with the employee’s consent). For those who go beyond these basics, there is a dilemma when asked to respond to a reference check regarding a former employee who has had his or her employment terminated due to an accusation of sexual harassment. Thus, by informing a future employer of an employee’s misconduct, the former employer opens itself up to a defamation claim by an employee claiming he or she was falsely accused. (more…)
The United States Supreme Court has issued its much-anticipated opinion in Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), and two companion cases. In a decision that will be welcomed by employers, the Court has upheld the use of arbitration agreements with class action waivers that require employees to litigate any claims against their employers individually in arbitration. Specifically, the Court has held that class action waivers in arbitration agreements between employers and their employees do not violate the National Labor Relations Act (NLRA) by preventing employees from engaging in protected concerted activity. (more…)
On April 30, 2018, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, 2018 Cal. LEXIS 3152 (Cal. Apr. 30, 2018), announcing new guidelines that could result in widespread reclassification of California workers and, at the least, presents significant new challenges for certain employers. (more…)
The Ninth Circuit has recently ruled that salary history cannot be used to justify a wage gap between men and women. Specifically, in Rizo v. Yovino, Case No. 16-15372 (9th Cir. April 8, 2018), the Ninth Circuit held that a “factor other than sex” under the federal Equal Pay Act must be “job-related” and the court therefore rejected an employer’s use of pre-employment salary history as a reason to pay females less than males performing the same work.(more…)
On March 5, 2018, the California Supreme Court issued its long-awaited opinion in Alvarado v. Dart Container Corporation of California, Case No. S232607 (Cal. Sup. Ct., March 5, 2018). The opinion resolves a dispute between an employer and a former employee regarding how his overtime wages should have been calculated for workweeks in which he worked overtime hours and also earned a flat sum bonus. (A flat sum bonus is a bonus whose amount is fixed regardless of the number of hours the employee works.) The calculation method urged by the employee, which would result in slightly higher overtime pay, would treat the bonus as earned only during the non-overtime hours he worked; the employer’s method effectively treated the bonus as earned during all hours he worked.(more…)
A federal court in California, (Lawson v. Grubhub, Inc., No. 15-CV-05128-JSC (N.D. Cal February 8, 2018)), recently ruled that drivers for Grubhub, a food delivery service, are independent contractors rather than employees. The critical factor in the court’s decision was Grubhub’s lack of control over how its drivers perform deliveries, and even whether deliveries are to be performed at all. The decision is significant because, under California law, if an individual performing services is deemed to be an employee, that person has rights to minimum wage, overtime, expense reimbursements and workers compensation benefits. In contrast, an independent contractor is not entitled to those benefits. The decision is thus a welcome development for employers who rely on flexible and semi-autonomous workers in the “gig” economy.(more…)
Several important new California employment laws took effect on January 1, 2018. These new laws will impact California employers from the pre-hiring stage through the entire employment relationship.
Restriction on Obtaining Salary History
Effective January 1, 2018, Assembly Bill 168 went into effect, which prohibits all California employers from:
- Directly or indirectly inquiring into a job applicant’s salary history, compensation or benefits
- Using such salary history information in determining whether to extend a job offer or in deciding what salary to offer the applicant.
Many Silicon Valley start-up companies, as well as larger companies such as Zappos, have moved from a traditionally structured work environment to a “holocracy” model. Essentially, while there are lots of variations, a holocracy model is a “boss free” business environment that focuses less on a structured workplace with traditional job descriptions and job titles, and more on creating self-organized “circles” of workers that concentrate on specific goals. Each circle of workers is a self-organized entity with the authority to manage itself, and the circle is ultimately part of a larger circle within the company. In addition, there is a general principle of transparency in the organization’s rules and decision-making. For companies that are able to tolerate a high level of adaptability, have motivated workers, and are established and mature enough to bounce back if things do not work out as anticipated, this is a highly attractive work model. However, this organizational model raises a host of potential employment issues, a few of which are highlighted below:
In 2016, California Governor Jerry Brown signed numerous laws that will affect California employers. Here are some of the new laws that employers need to be aware of:
Employers Are Not Required to State Hours Worked on Wage Statements of OT Exempt Employees
AB 2535 clarifies the wage statement requirements for tracking hours worked for exempt employees. The bill was passed following the federal court decision in Garnett v. ADT, LLC, which held that employers must include total hours worked on pay stubs for exempt outside sales employees and executives because they received bonuses and stock options. Under the new law, employers are not required to provide itemized wage statements to employees if the “employee’s compensation is solely based on salary and the employee is exempt from payment of overtime,” or the “employee is exempt from the payment of minimum wage and overtime under …any applicable order of the Industrial Welfare Commission” and specified statutes.(more…)
The 2016 Presidential election will go down as one of the most unpredictable, polarizing and controversial elections ever to occur in United States history. Although it was anticipated that the House of Representatives would remain controlled by the Republicans, the race was decidedly less clear with regard to control of the White House and Senate. But now that Republicans have won both majorities in the House and the Senate, and President-elect Donald Trump is in the midst of making selections of who will serve in his administration, what impact will this election have for employers? The outlook is murky at best.(more…)