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…)
Employment Law
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…)
US Congress Allows Plaintiffs Alleging #MeToo Claims to Invalidate Predispute Arbitration Agreements
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed into law by President Biden on March 3, 2022.
On February 10, 2022, the US Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”). The Act already passed the US House, and it is expected President Joe Biden will sign it into law. In brief, the Act will amend the Federal Arbitration Act (FAA) to allow a plaintiff who alleges a sexual harassment or sexual assault claim to invalidate a predispute arbitration agreement.(more…)
California’s Silenced No More Act – New California Law Will Expand Confidentiality Prohibitions
On October 7, Governor Newsom signed S.B. 311, 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…)
FDA Approves First COVID-19 Vaccine-What This Means For Employers
The Federal Drug Administration’s (“FDA”) approval of the Pfizer-BioNTech COVID-19 vaccine clears the way for employers hesitant to mandate vaccines authorized under the FDA’s Emergency Use Authorization (“EUA”) to now require employees receive an FDA approved vaccine.(more…)
Statute of Limitations no Longer Applies to PAGA Representative Plaintiffs
On July 21, 2021, the Court of Appeal held an employee has standing to bring a PAGA claim on behalf of other employees even if her individual claim is time-barred. This ruling expands the pool of potential plaintiffs and continues the trend of increasing the risk employers will face in connection with PAGA claims.(more…)
Employment Law Update – 2021
Several important new California employment laws have been passed in 2020. With exceptions as noted, the laws described below take effect on January 1, 2021.
COVID-19-Related Legislation
AB 1867—Supplemental Paid Sick Leave, Handwashing, & Small Employer Family Leave Mediation
The “ABC” Test, As Modified
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…)
DOL Opinion Letter That Some Gig Workers Are Contractors Has Little Significance In California Given Dynamex
On April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) issued an Opinion Letter in response to an inquiry by a single, unnamed company that sought the Department’s guidance on whether its workers could properly be considered contractors under the Fair Labor Standards Act (“FLSA”), which mandates minimum wages and overtime pay for employees, but not for independent contractors.(more…)
The Rapidly Evolving Cannabis Laws: It’s Time to Think About Your Drug Use Policy
Federal, state, and local laws regarding the legalization of marijuana, and medical use of marijuana, are rapidly changing, which puts employers in a tough situation when they learn of an employee’s marijuana use. Federal law still classifies marijuana as a Schedule 1 drug, but California has legalized both recreational and medical marijuana use. As of today, California employers are not required to accommodate an employee’s use of medical marijuana outside of work. Given the rapid changes in the laws, however, it’s a good idea to make sure that your company’s drug use policy is up to date.(more…)