On October 7, Governor Newsom signed S.B. 331, the Silenced No More Act (“Act”), into law. The Act will take effect January 1, 2022. Existing California law limits the use of non-disclosure agreements (“NDAs”) to settle already-filed claims alleging assault, discrimination, harassment, or retaliation on the basis of sex. The Act expands the law to include any legally protected basis. The Act also clarifies that NDAs cannot be used in certain employment agreements (including bonus or separation agreements) to prevent or restrict the disclosure of factual information related to unlawful acts in the workplace.(more…)
employment law advice
The Ferra Decision
On July 15, 2021, the California Supreme Court unanimously held in Ferra v. Loews Hollywood Hotel, LLC that meal and rest break premiums must be paid at the “regular rate of pay,” which includes all non-discretionary payments. The decision has significant ramifications for California businesses, and highlights the urgent need for employers to review their meal and rest period practices to ensure compliance.(more…)
In 2018, the California Supreme Court (in Dynamex Operations West, Inc. v. Superior Court) created a strict new test for determining whether a worker is an employee or an independent contractor, with a greater presumption that workers should be characterized as employees. As previously discussed, the “ABC” test presumes that a worker is an employee unless the an employer can meet its burden of proof with respect to all three of the following factors:(more…)
Outgoing Governor Jerry Brown signed dozens of bills into law on Sunday, September 30, 2018. Many of these new laws are in response to the #metoo movement and specifically target sexual harassment. This blog summarizes the key features of these laws and their effect on employers as well as others, such as VCs, who can now be held legally responsible under the sexual harassment laws for harassing non-employee persons who work for actual or potential portfolio companies.(more…)
Recently, another technology company defeated class certification in a gender discrimination lawsuit. On July 3, 2018, a California state court judge denied female Twitter employees class certification in a lawsuit entitled Huang v. Twitter. This ruling follows a federal judge’s denial of class-action status to females in a gender bias case against Microsoft Corporation. Similar cases are currently pending against Google and Oracle.(more…)
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…)
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:
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…)