California Proposes New Legislation Prohibiting Confidentiality Provisions in Settlement Agreements

In the face of a continuing wave of highly publicized complaints of sexual misconduct in the workplace, California state senator Connie M. Leyva introduced Senate Bill 820.  If passed, this law would prohibit the inclusion of nondisclosure terms in settlement agreements relating to actions alleging claims of sexual harassment or discrimination in the workplace. Continue Reading

Trump NLRB Shakes Up the Labor World in Striking Down Numerous Obama Board Decisions

It might appear that in some years, the National Labor Relations Board (the Board) issues a series of decisions just as the year comes to a close, but it is not because the Board wants to give out holiday presents (or, from the employer’s perspective for the past several years, multiple lumps of coal).  Rather, the year-end eruption of decisions comes about as the Board rushes to complete its work before one of the Board member’s term expires.  This year was no different, as Chairman Miscimarra’s term ended on December 16.  This time, employers have every reason to celebrate the gifts they received.

Within the last few days, the NLRB has overruled or indicated its intent to reverse several significant Obama Board decisions, including:

  • the controversial “joint employer” standards;
  • the creation of “micro units”;
  • the controversial 2014 “quickie election” rules;
  • the basis for the Board reaching out to strike down common employer policies, such as rules requiring civility in the workplace;
  • the degradation of the “dynamic status quo”; and
  • the standard for reviewing settlement agreements.

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California Implements Significant Changes in the Employment Application Process, Employee Training, and Protected Leaves

On October 12, 2017, California Governor Jerry Brown signed several bills regulating a wide range of employer actions, everything from the labeling of cleaning fluids to the employment application process.  While compliance with all of these new laws is important, four are of particular importance as they directly impact the information employers can seek from potential applicants, the training that must be provided to current employees, and protected leaves.

AB 168 and AB 1008 restrict the information employers can obtain from potential job applicants.  AB 168 makes it unlawful for California employers to either obtain or rely upon an applicant’s salary history to determine whether to offer an applicant a job or what salary to offer an applicant.  The law, however, does not prohibit a job applicant from voluntarily and without prompting disclosing to a prospective employer his or her salary history.  If a job applicant voluntarily discloses information in this way, then the employer is permitted to rely upon that history in determining the salary for that applicant.

AB 1008 imposes a statewide “ban-the-box” law.  Specifically, this law prohibits California employers with five or more employees from (1) including on any application for employment any question that seeks the disclosure of an applicant’s conviction history or (2) inquiring into or considering an applicant’s conviction history prior to providing that applicant with a conditional offer of employment.  The law also provides that employers who intend to deny an applicant a position of employment based upon that applicant’s conviction history must make an individualized assessment as to whether the applicant’s prior criminal history has a detrimental impact on the prospective employment.  Employers must also provide applicants with notice of a preliminary decision to deny employment based on the individualized assessment and allow applicants the opportunity to challenge the accuracy of their conviction history.  Prior to the signing of AB 1008, many local jurisdictions had enacted similar ordinances prohibiting the use of an applicant’s prior conviction history in the initial application process.  With passage of AB 1008, this prohibition is now statewide. Continue Reading

California Responds to Increased Federal Immigration Enforcement Actions

On October 5, 2017, California Governor Jerry Brown signed AB 450. With the passage of this bill, California becomes the first state in the nation to enact a law prohibiting employers from providing voluntary assistance to immigration enforcement agents during workplace investigations.

Earlier this year, U.S. immigration authorities conducted a series of high-profile raids of workplaces across the country in an attempt to locate undocumented immigrants.  In response, California Assembly member David Chiu introduced AB 450, the Immigrant Worker Protection Act.  AB 450 prohibits both public and private employers from voluntarily providing immigrant enforcement (ICE) agents with access to nonpublic work areas or employee records, absent a judicial warrant or subpoena.  AB 450 also mandates that employers provide certain notices to their employees concerning any inspections by ICE agents of I-9 Employment Eligibility Verification forms and the results of such inspections.

Critically, the law also provides for penalties of up to $10,000 for violations. While the law provides that enforcement of the sections concerning access to nonpublic work areas and employee records is limited to the California Labor Commissioner and/or Attorney General, the sections pertaining to required notices contain no such limitations.  As such, private employees may be able to recover penalties for violations of these notice provisions pursuant to California’s Private Attorney General Act.

This law requires employers to walk a fine line. On one hand, employers must comply with federal law prohibiting them from hiring individuals without verifying their eligibility to work in the United States.  On the other hand, AB 450 means that employers in California must also be cautious in how vigorously they apply immigration laws, e.g., voluntary compliance with a federal enforcement action.

Employers with California operations should promptly begin revising their employment processes and advising their management employees to ensure compliance with this new law. By failing to do so, they will leave themselves exposed to substantial liability from both public agencies and private employees.

 

 

Employers Need Not Disclose Pay Data on EEO-1 Reports; September Deadline Moved to 2018

Employers can breathe a sigh of relief.  The Office of Management and Budget (“OMB”) announced this week that it was removing a requirement that EEO-1 reports contain employee pay data.  The now-defunct Obama-era requirement announced in 2016 would have required employers to disclose compensation information to the EEOC regarding all employees, including executives – which many employers consider to be highly confidential.  The OMB also announced that it extended the EEO-1 reporting deadline from September 30 of this year to March 31, 2018. Continue Reading

Department of Labor Seeks Input on New Rules for White Collar Exemptions

Employers know that the salary rule for “white collar” exemptions from President Obama’s Department of Labor (“DOL”) was blocked by a federal court last year (we blogged about that here).  (UPDATE: A Texas federal court invalided the rule on August 31, 2017.)  That rule would have more than doubled the salary requirement for an overtime exemption.  Now, President Trump’s DOL has formally announced that it will not pursue that rule.  Instead, it is soliciting comments to draft its own rule.

Employers have an opportunity to weigh in on what, if any, changes should be made to the white collar exemptions.  The DOL’s request for information suggests it is seriously considering making at least some changes to the exemptions.  Continue Reading

The Washington Supreme Court Addresses Meal Break Claims

The Washington Supreme Court case Brady v. Autozone recently addressed the standards that apply when a non-exempt employee alleges that an employer did not provide meal breaks.  In short: it is now clear that if a lawsuit is brought, employers are likely to bear the burden to show that break laws have not been violated.[1]  Continue Reading

California Court of Appeal Puts a Small Crack in the Glass Door

An employer who unfairly and inaccurately is slammed by a former employee (or maybe even a current employee!) on a job-posting or employer-rating website will often look to its lawyer for help.  Surely the law protects against outrageous false statements that harm the employer’s ability to recruit new talent?  Maybe not—and if there is, it isn’t easy.  The websites that provide the platform for these posts are immune from liability under the federal Communications Decency Act, and most courts have put up substantial roadblocks to enforcement of a subpoena targeted at getting the names of the anonymous posters.  But California now may be leading the way in bringing some sanity to this murky area of the law. Continue Reading

Oregon Amends Sick Leave Law: 5 Key Clarifications

Oregon recently passed amendments to its statewide sick time law, clearing up several areas of uncertainty for employers.  The amendments clarify that:

  • Employers may cap employees’ annual accrual of sick leave at 40 hours. The pre-amendment version of the sick leave law stated that employees had the right to “earn and use up to 40 hours of paid sick time per year,” but also mandated that employees accrue one hour of paid sick time for every 30 hours worked.  At the “1 for 30” rate, full-time employees would reach the 40-hour limit well before the end of the year, leading to confusion about whether they were entitled to continue accruing sick time for the remainder of the year (which would, in effect, give them more than 40 hours of annual leave).  The amendments, which expressly state that “[e]mployers may limit the number of hours of paid sick time that employees may accrue to 40 hours per year,” make clear that continued accrual beyond 40 hours is not a requirement.  Once employees have accrued 40 hours, they are done for the year, even if there are several months left in which they will not accrue any time.

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Breaking News: Oregon Legislature Passes Employee Scheduling Bill

Oregon is poised to become the first state to enact a “secure scheduling” or “fair work week” law that will impose significant new employee scheduling requirements on certain categories of large employers.  Senate Bill 828, which will set new scheduling standards for employers with 500 or more employees worldwide in the retail, hospitality, or food services industries, passed the Senate last week and just passed the House.  It has now been sent to Governor Kate Brown, who has indicated she will sign the bill following a routine legal review. Continue Reading

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