California Court of Appeal Significantly Broadens the Scope of Employees Entitled to Reporting Time Pay

Many classes of California workers are entitled to “reporting time pay,” which is partial compensation given to employees who go to work expecting to work a certain number of hours but are deprived of working the full time due to inadequate scheduling or lack of notice by the employer.  Prior to the California Court of Appeal’s decision in Skylar Ward v. Tilly’s, Inc. most employers understood that such pay was only required if the employee physically appears at the workplace.  In that decision, however, the Court of Appeal told those employers that they were wrong. Continue Reading

Washington Supreme Court Announces Zero-Tolerance Approach to Sexual Harassment in Places of Public Accommodation

The Washington Law Against Discrimination (WLAD) prohibits “places of public accommodation” from discriminating against their customers on the basis of several protected characteristics, including, without limitation, sex, race, national origin, and sexual orientation. Sexual harassment is one prohibited form of such sex-based discrimination.  Generally speaking, a place of public accommodation is any business that is open to the public.

On January 31, 2019, the Washington Supreme Court announced a new sexual harassment standard for places of public accommodation. In so ruling, the Court held that, under the WLAD, employers are “directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Floeting v. Group Health, Inc., No. 95205-1. Continue Reading

California Employers: Ignore Piece-Rate Compensation Rules at Your Peril

A recent California Court of Appeal decision upheld the state’s complex rules for compensating piece-rate employees.  In Nisei Farmers League v. California Labor & Workforce Dev. Agency, 2019 Cal.App. LEXIS 10 (Cal.Ct.App. Jan. 4, 2019), the Court held that the Labor Code’s requirement that piece-rate employees be separately compensated for “nonproductive time” was not unconstitutionally vague.  With California’s “productive vs. non-productive time” rubric firmly in place, employers must take great care to track and compensate piece-rate employees’ time, or face stiff penalties.

What Does “Piece-Rate” Mean, And Why Might An Employer Choose It?

Piece-rate compensation plans are very popular in some industries.  They can incentivize employee productivity, while giving an employer greater control over labor costs. Under a piece-rate compensation system, the worker is paid a fixed amount of money for each unit produced or action performed, regardless of the number of hours worked. Industries that pay employees on a piece-rate basis include: Continue Reading

OSHA Web Alert: New Enforcement Policy Places Respiratory Hazards Under Employer’s “General Duty”

A new enforcement policy from the Occupational Safety and Health Administration (“OSHA”) states employers may face citations for subjecting their employees to hazardous air contaminants even if the levels are below or not covered by a permissible exposure limit.

This new enforcement policy comes from OSHA’s recent memorandum released to the public on December 7, 2018.  Prior to this memorandum, OSHA typically issued citations to employers when respiratory hazards exceeded permissible exposure limits at their places of employment.

With this new policy however, OSHA clarifies that it will also rely upon the “general duty clause” to issue citations against employers for respiratory hazards, even if the exposure levels are below legal limits. The “general duty clause” requires employers to provide their employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).  To prove a violation of the “general duty clause,” an OSHA inspector must show:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and
  4. There was a feasible and useful method to correct the hazard.

If all four of those elements of the “general duty clause” are proven with sufficient evidence, OSHA may issue a citation against the employer for a respiratory hazard.

OSHA’s memorandum goes on to provide examples of what constitutes evidence for a respiratory hazard under each element of the “general duty clause” test.  Even if the elements of the “general duty clause” test are not proven and respiratory hazards exist, OSHA inspectors may issue a Hazard Alert Letter advising the employer that one or more employees are being exposed to a respiratory hazard.  The good news though is that a Hazard Alert Letter carries no fines or citations, offering the employer an opportunity to take remedial action.

While this change may place employers at additional risk for citations, it also signals OSHA’s desire to expand its enforcement methods beyond the decades-old permissible exposure limits mentioned in the memorandum.  These changes place more responsibility on employers to ensure their places of employment meet OSHA’s requirements.

Pay Equity: 10 Things for Oregon Employers to Do Before the End of the Year

Oregon’s new Equal Pay Act and “Pay Equity Analyses” are all the rage in Oregon right now. The majority of the Act’s new requirements go into effect January 1, 2019. Let’s talk about 10 things you should do before the end of the year to make sure you are in compliance with the law.

  1. If you haven’t already removed past compensation questions from your job applications, do so now. The Act makes it unlawful to ask job applicants (or their prior employers) about their current or past compensation until after a conditional job offer that includes the amount of compensation is made.
  2. Train your hiring managers not to ask applicants about current or past compensation. The Act requires employers to pay people based on the job they are (or will be) performing, not what they were paid by a previous employer. Employers must not ask applicants about their current compensation. You can, however, ask applicants about their salary and compensation expectations – but be careful to frame the inquiry to expectations, and be aware that a badly phrased question is a potential violation of this particular provision of the statute.
  3. Rethink salary negotiations – in Oregon, those might be a thing of the past (!). The Act requires employers to pay employees who are doing comparable work the same, unless there is “bona fide factor” to explain the difference such as a seniority system, a merit system, training or experience, or another factor expressly listed in the law. Unless tied to one of those listed factors, market demands or negotiating skills are not bona fide factors justifying a pay disparity.

Continue Reading

California Court of Appeal Calls into Question the Validity of Employee Non-Solicitation Provisions

California Business and Professions Code section 16600 invalidates any contract restraining anyone from engaging in a lawful profession, trade, or business.  While this language has been understood to prohibit non-compete agreements, it was generally understood that it still permitted employee “non-solicitation agreements,” which are agreements preventing former employees from poaching employees from their former employers.  In AMN Healthcare, Inc. v. Aya Healthcare Services, Inc.; et al., the California Court of Appeal called that prior understanding into serious question.

AMN involved an action between plaintiff AMN Healthcare, Inc. (“AMN”) and defendant AYA Healthcare Services, Inc. (“AYA”).  AMN and AYA were competitors in the business of providing temporary workers to medical care facilities across the country.  AMN brought suit against AYA and certain former AMN employees now working for AYA.  These former employees had previously worked for AMN as recruiters of temporary workers and had all executed Confidentially and Non-Disclosure Agreements with AMN which included a provision preventing them from soliciting any AMN employees to leave the service of AMN for a certain designated period of time.  AMN’s lawsuit alleged that these defendants had breached the terms of that agreement by recruiting temporary workers for AYA that AMN had previously employed. Continue Reading

California Courts Slowly Interpret Dynamex

Almost six months ago, the California Supreme Court issued its decision in Dynamex, which dramatically altered the landscape pertaining to the classification of California workers as either employees or independent contractors.  This past Monday, the California Court of Appeal issued one of the first decisions interpreting that seminal case.

In Dynamex, the California Supreme Court issued a new, employee-friendly test for determining whether a worker is properly classified as an employee or independent contractor for the purposes of claims brought under California’s wage order – the “ABC” test.  Under the ABC test, the burden is on the hiring entity to establish that the worker is an independent contractor.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work; (2) that the worker performs work that is outside the usual course of the hiring entity’s business; and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Continue Reading

California Supreme Court Resolves Conflict Regarding California’s Background Check Laws

In Connor v. First Student, Inc., the California Supreme Court resolved a conflict in Court of Appeal decisions relating to the constitutionality of California’s background check laws.

Employers frequently request background information from job applicants.  California has two primary laws regulating the collection and distribution of this background information:  the Investigative Consumer Reporting Agencies Act (“ICRAA”) and the Consumer Credit Reporting Agencies Act (“CCRAA”).  The ICRAA concerns investigative consumer reports, which are reports containing information on a consumer’s character, general reputation, personal characteristics, or mode of living.  Expressly excluded from the ICRAA are consumer reports limited to specific factual information relating to a consumer’s credit record.  On the other hand, the CCRAA concerns consumer credit reports, which are defined as reports bearing on a consumer’s credit worthiness, credit standing, or credit capacity.  These laws impose certain obligations on both the agencies providing the information and on the parties requesting the background information, with the ICRAA generally imposing greater obligations and stricter limitations. Continue Reading

California Labor Commissioner Issues $1.9 Million Citation to Contractor for Wage Theft

Continuing its aggressive enforcement of California wage and hour laws, the Labor Commission issued wage theft citations of $1.9 million to Fullerton Pacific Interiors, Inc. for failing to pay minimum wage and overtime and failing to provide rest periods to 472 workers on 26 construction projects throughout Southern California.

Fullerton Pacific Interiors provided drywall work at commercial projects throughout southern California.  The company paid its taping and drywall installation crew a flat daily rate.  Thus, regardless of the number of hours actually worked, employees received the same daily pay.  Workers were permitted the legally required 30-minute meal period, but did not receive mandated rest breaks. On July 9, 2018, the Labor Commissioner also determined that the company failed to provide employees accurate itemized wage statements as required by law. The $1,964,679 citation includes $1,892,279 payable to the workers for owed wages, liquidated damages and waiting time penalties, as well as $72,400 in civil penalties.

Since being appointed Labor Commissioner by Governor Brown in 2011, Julie A. Sue has been very public about her intention to dramatically increase enforcement of California’s Wage Theft Protection Act that went into effect in January 2012.  “Wage theft” is defined as any instance when an employer fails to provide an employee full pay for all hours worked, including paying less than minimum wage, failing to provide overtime pay, requiring workers to perform off-the-clock work, and failing to provide meal and rest breaks. The Act and subsequent legislation have given the Labor Commissioner more legal tools and financial resources to enforce California’s myriad wage and hour laws. Under Su’s leadership, the California Division of Labor Standards Enforcement has focused its enforcement efforts on low wage workers, particularly those in the construction industry.

Takeaway for Employers:

This citation should be a wake-up call for California employers that failing to comply with California wage and hour laws can be extremely costly.   These laws are notoriously complex and counter-intuitive.  To ensure compliance, an employer may wish to conduct a self-audit under the direction of legal counsel.

California Supreme Court Determines that the Federal De Minimis Doctrine Does Not Apply to California Wage Claims

In Troester v. Starbucks Corp., the California Supreme Court determined that the federal de minimis doctrine does not apply to California wage claims.  While this ruling does not completely eviscerate this legal defense for California employers, it places a very high burden on employers who are brave enough to raise this defense in California courts.

The facts in Troester are simple.  Troester worked for Starbucks as a shift supervisor.  In this role, he had the responsibility of completing the “close store procedure” at his store, which required him to transmit the store’s financial information to Starbuck’s corporate headquarters.  Troester argued that prior to completing this procedure, Starbuck’s computer software required him to clock out of his store shift.  Troester filed a putative class action against Starbucks in the Superior Court alleging that he and other putative class members were owed unpaid wages due to this close store procedure, which amounted to four to 10 additional minutes each day. Continue Reading

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