On July 5, 2018, a federal judge in the Eastern District of California granted the U.S. Department of Justice’s (“DOJ”) request to temporarily prevent the state of California from enforcing key provisions of AB 450, one of three “sanctuary” laws that Governor Jerry Brown signed into law on October 5, 2017, and which took effect on January 1, 2018.  AB 450, known as the Immigration Worker Protection Act, provides that California employers:

  • May not allow federal immigration officials to access the employer’s nonpublic work areas unless the officials have a judicial warrant;
  • May not allow federal immigration officials to access employee records without a subpoena or judicial warrant;
  • Must provide notice to its employees before and after the federal government inspects the employer’s I-9 forms; and
  • May not re-verify an employee’s lawful work authorization status unless required to do so by federal law.

Continue Reading California Federal Court Suspends Enforcement of Certain Provisions in California’s Sanctuary Laws

In yet another significant victory for employers, the United States Supreme Court has held that the First Amendment prohibits public sector unions from collecting mandatory “agency fees” from non-union members who do not consent to the payment of fees.  The Court’s ruling in Janus v. AFSCME, Council 31 overturns prior precedent that allowed public sector unions to collect these mandatory fees from employees who choose not to be a part of the union.
Continue Reading Supreme Court Rules Mandatory Union Fees for Public Sector Employees are Unconstitutional

The 2017 Oregon legislature passed a “secure scheduling” or “fair work week” law that imposes significant requirements on certain categories of large employers.  The law, available here, goes into effect July 1, 2018.  We previously blogged about the law here.

Are You a Covered Employer? 

The law applies to retail, hospitality, and food services employers with 500 or more employees worldwide. 
Continue Reading Oregon’s Secure Scheduling Law Goes into Effect July 1: Are You Ready?

In a significant win for employers, the United States Supreme Court has issued a landmark decision upholding the use of class action waivers in employment arbitration agreements.  This ruling permits employers across the country to enforce individual arbitration agreements with employees, even where the agreement requires an employee to pursue legal claims on an individualized…

In yet another blow to agricultural employers, grab your stopwatches. In Carranza v. Dovex Fruit Co., the Washington Supreme Court has just held that agricultural employers are required to compensate piece-rate workers on a separate hourly basis for time spent performing tasks outside the specific scope of the piece-rate work.

In a narrow 5-4…

In Dynamex Operations West, Inc. v. Lee, the California Supreme Court created a new employee-friendly test for determining whether workers are properly classified as employees or independent contractors.  While providing a level of certainty lacking in the prior standard, the Court’s new test significantly increases the burden on California employers in demonstrating that their…

Employers in the Ninth Circuit (which includes Washington, Oregon, California, Alaska, Idaho, Montana, Nevada, Arizona, and Hawai’i) can no longer justify pay differentials between male and female employees based upon employees’ prior compensation. In an April 9, 2018 decision, Rizo v. Yovino, the Ninth Circuit Court of Appeals overruled prior Circuit law to hold that an employee’s previous compensation, either alone or in combination with other factors, cannot form the basis of a wage differential between men and women.

While the Equal Pay Act permits “a differential based on any other factor other than sex,” the Court held that an employee’s prior compensation is not a “factor other than sex.” Specifically, the Court held that the above “catchall” exception under the Equal Pay Act is intended to allow employers to rely upon only job-related factors, such as experience, educational background, ability, or prior job performance.  Prior compensation, the Court opined, is not job-related.
Continue Reading Ninth Circuit Rules That Basing Employees’ Wages on Their Prior Compensation Violates the Equal Pay Act

No man’s life, liberty or property are safe while the legislature is in session.

· Judge Gideon J. Tucker

In the recently concluded session, Washington legislators enacted numerous laws that will adversely affect employers of all sizes across the State. With so many changes, it is key that employers stay up to date and understand the new challenges they will face in running their workplaces.

WASHINGTON HAS ‘BANNED THE BOX’ (2SHB 1298)

Washington is now firmly on the bandwagon to “ban the box,” barring questions about criminal convictions on initial employment applications.  Employers are now prohibited from inquiring into an applicant’s criminal background until the employee is determined to be otherwise qualified for the position.  The new law thus provides another area where employers have to tread carefully when rejecting applicants—an employer is much more baldly exposed to disparate impact claims arising from applicants rejected after the employer had determined they were otherwise qualified for the position.  The law includes several exceptions, including for law enforcement, employers whose employees would have unsupervised access to children or vulnerable adults, and other employers required by law to conduct criminal background checks.  The Attorney General’s Office is in charge of enforcing the law, and employers face an escalating system with increased fines for each subsequent violation.

Suggested Action: Remove any criminal background questions from job applications.  While the statute bars advertising that states “no felons” or “no criminal background” or the like, nothing precludes employers from advising applicants at the time they apply that they will have to pass a criminal background check once they have been determined to be qualified for the job.  Employers should monitor applicants screened out by the results of a criminal background check.  If an employer detects a disparate impact as a result of that screening, the employer should ensure that its actions are consistent with business necessity.
Continue Reading Washington Legislature Enacts Multiple Anti-Employer Statutes

In Alvarado v. Dart Container Corporation of California, the California Supreme Court determined how employers must calculate an employee’s overtime pay rate when the employee earns a bonus during a single pay period. While the holding was fairly fact specific, it is a reminder on an often ignored (but critical) issue in California employment…