Seyfarth Synopsis: Social media information—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the owner’s perspective and documented in real time—can be a  goldmine of information to defend employment lawsuits. Read on for thoughts on how to extract and refine this information, and what limits to observe in using it.

Social media and discovery is an area rife with potential drama: pictures of a plaintiff vacationing in Hawaii after he’s called in sick? Yes, please! How and should we access such juicy information?

Litigation-related discovery of social media content is generally permissible. The main problem is that—both in formal discovery and in other forms of fact-finding—there isn’t a complete picture on how far one can go to obtain it. Below are some tips to help employers stay in the friend-zone while using social media to their advantage in litigation.

Go Narrow! (At Least At First)

In a frequently cited case on the matter, Mailhoit v. Home Depot U.S.A. (C.D. Cal. 2012), the court debated how a defendant could use social media in litigation, and ultimately decided that there is a limited right to discover a party’s social media content. Mailhoit allowed an employer to make “particularized requests”—in that case all social media communications between the plaintiff and her current or former co-workers in any way referring to the lawsuit. But Mailhot said the employer was not entitled to look through the entirety of the plaintiff’s social media information in the hope of “concocting some inference about her state of mind,” and refused to permit other proposed, broader, discovery requests.

But even this limited discovery can be important: once relevance is shown, courts may be more likely to permit additional discovery. Mailhoit suggested that if social media posts are relevant, additional discovery may proceed.

At least one non-California court has already taken this step. In Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. La. 2015), the court ordered an employee to produce an unredacted copy of his entire Facebook page, even though the employee protested that he had deactivated his account. The employer was even entitled to analyze his Facebook messages, which potentially contained a lot of useful information! If a California court can be persuaded that social media communications in some way relate to claims or defenses in the litigation, then they, too, may yield to discovery.

Private vs. Public: Gimme, Gimme!

We know that in California, since 2013, we cannot force employees or job applicants to turn over social media passwords. The California legislation on this point reflects a public policy that recognizes our unique constitutional right of privacy.

But what about publicly available information? California courts agree that there can be no expectation of privacy in publicly posted information on social media websites. See Moreno v. Hanford Sentinel, Inc. (Cal. App. 2009).

This means if the privacy setting on an employee’s Facebook posts is “Public”(i.e., available to anyone on or off Facebook), then anything posted is fair game for discovery. The same goes for publicly available Twitter tweets, publicly available Instagram posts, publicly available LinkedIn info, MySpace page information, etc. Presumably, if someone publicly posts elsewhere (e.g., Reddit, 4Chan, personal blogs), with a link it to the poster’s identity, then those posts may also be accessed and used.

Save, Save, Save!

Social media, like life itself, is evanescent.  Publicly available, incredibly useful information can be here one day, gone the next. Do not rely on information staying up once it is up. To best preserve currently available information, screenshot the information, or print to .pdf. Then save and wait. It doesn’t get much better than seeing the face of a plaintiff when confronted with a photo he thought he had deleted. You know the one: featuring the plaintiff himself, bleary eyed and hoisting a beer, an hour before his scheduled work shift. Or the one showing him wearing stolen merchandise. Or the one showing him partying it up while supposedly suffering from “emotional distress.”

Fake-Friending and Professional Responsibility: Don’t Be a 🙁 

“Fake-friending” is when one creates a fake profile to add a person on Facebook or other social media with the aim of gaining full access to the person’s more limited profile. Rules of professional responsibility for lawyers discourage this practice—(the American Bar Association has recognized at least four areas of concern: (1) confidentiality, (2) truthfulness in statements to others, (3) responsibility regarding non-lawyer assistants, and (4) misconduct). Conducting covert research through fake-friending may also violate California Rules of Professional Conduct, such as Rule 2-100, which forbids “communication with a represented party.” Non-attorneys may be subject to similar ethical responsibilities.  So leave intentional fake-friending out of your litigation arsenal.

Nonetheless, it is not always clear what the limits of these rules mean in practice. For example, would it be OK to accept the help of a third party who has access to shared information (for example, the plaintiff’s co-worker, who has added the plaintiff as a friend online)?

The San Diego County Bar Association released an Opinion (2011-2), stating: represented “parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.” Specifically, the opinion states that if the motive is to obtain information about the litigation, then this conduct can violate Rule 2-100 and constitute deceptive conduct forbidden by the California Business and Professions Code.

Outside of California, other jurisdictions have found that it would be unethical even to ask a third person, whose name a hostile witness will not recognize, to obtain social media information, even if the person states only truthful information.

The Future of Social Media and Regulation: “It’s Complicated”

New apps, social media websites, and ways to share information emerge every day. Unfortunately, the law and public policy often lag behind advances in technology. In some states, we’re already seeing some peculiar stuff going on. In New York, courts have since 2013 held that some service via social media can satisfy due process. In one early case, Federal Trade Comm. v. PCCare247 Inc. (S.D.N.Y. Mar. 7, 2013), the court noted: “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” New York courts have also indicated that social media may be considered an effective means of providing notice to potential class members in class actions. See Mark v. Gawker Media, LLC (S.D.N.Y. 2016).

Workplace Solutions

If you find yourself in a pickle—“to like or not to like?”, “to friend or not to friend?”, “to snoop or not to snoop?”—remember that a friendly neighborhood Seyfarth attorney is just a poke away.

Edited by Coby M. Turner.

A thankful heart is not only the greatest virtue, but the parent of all the other virtues. ~Cicero

Dearest Reader,

We have much to be grateful for this year:

  • Generous, smart colleagues who contribute regularly to our blog—more than 50 posts so far in 2016!
  • The recent honor of being recognized as one of the Top 100 Legal Blogs in the country.
  • California legislators: the active group that keeps on giving us new and peculiar employment laws and amendments.

But our greatest gift—for which we are ever-thankful—is YOU, the loyal reader. Thank you for following our blogs, and for your thoughtful questions and contributions.

We’ve all noted the results of the November elections—both in California and nationally. Those results, together, seem likely to result in California employment law becoming even more “peculiar” than ever. While some will be more grateful than others for this trend, all should see it, we suggest, as validating our call to point out how California law differs from what folks face in America generally. Heck, there is even a Cal-exit secession initiative underway that, if it qualifies, will be on our ballot in 2018.

So the coming year should bring us no shortage of Cal-specific news to report, analyze, and deliver to you, on a more-or-less weekly basis.

Please continue to let us know how you think we’re doing. What would you like to read more of—or less of—in the coming year? How can we be more helpful to you? Our ears are open and we welcome your thoughts. You can contact an editor here.

Meanwhile, a very Happy Thanksgiving to you and yours.

Seyfarth Synopsis: ‘Tis the season of food temptation: the average American gains at least five pounds between Thanksgiving and New Year’s Day. California employers need to beware of weight discrimination in the fluctuating legal landscape, and how to handle bias in hiring and the workplace.

A 2008 study from Yale University found that weight discrimination, often referred to as “size discrimination,” occurs in employment settings and daily interpersonal relationships as often as race discrimination: it is one of the top charges filed with EEOC, and is reported by women about twice as often as men. Even more surprising, according to a study by the Obesity Action Coalition, weight discrimination increased by 66 percent between 1995 and 2005, and it now appears to affect 7-12 percent of the general population. In the continuously changing legal landscape, discrimination against the differently sized is weighing in—what does that mean for California employers?

“Working Out” the Kinks: ADA vs. FEHA

Weight discrimination is a serious problem affecting millions of U.S. employees. Overweight people experience job-related discrimination in hiring, wages, and the terms and conditions of employment. While federal and state laws contrast considerably on the issue, most cases of weight discrimination are argued as a matter of disability discrimination or perceived disability discrimination.

Courts generally have been unsympathetic to claims that overweight plaintiffs have brought under the ADA. To qualify as “disabled” and thus protected under the ADA, a plaintiff must have a present “physical or mental impairment” that “substantially limits” one or more “major life activities,” or must have a record of such impairment, or must be regarded or “perceived” as such. Differently sized individuals have qualified as disabled where they have been medically identified as “morbidly obese.”

As described in the section immediately below, the FEHA provides an extra helping of protection: it breaks with the ADA by liberalizing the test for establishing perceived disability. The FEHA defines disability as:

  • A physical or mental impairment that limits [even if it does not “substantially” limit] one or more of a person’s major life activities; or
  • A record of having, or being perceived as having, a physical or mental impairment.

The Weight is Over: Interpretations Under The FEHA

In 2000, the California Legislature, in AB 2222, affirmed that it intended the FEHA to surpass the ADA in providing wide and strong protections to California employees with disabilities. The Legislature amended the FEHA’s definition of disability in a critical way: To proceed on a disability claim, a plaintiff need only show that the impairment limits, rather than substantially limits, a major life activity. Therefore, a FEHA plaintiff need only show that the employer regarded him or her as having a condition that made working one particular job or task more difficult in order to qualify, and if being over (or under) weight is based on a medical condition, that may count. Enterprising plaintiffs’ lawyers may use this part of the FEHA to argue weight discrimination has affected their clients. See Cassista v. Cmty. Foods, Inc. and Hallstrom v. Barker.

Note also that California law, in contrast to the ADA, covers “medical conditions.” This provision may benefit a weight-discrimination plaintiff because it defines a “medical condition” to include genetic characteristics (any scientifically or medically identified gene or chromosome, or combination or alteration thereof, or inherited characteristics that are known to cause or increase the risk of developing a disease or disorder in a person or his or her offspring and that is presently not associated with any symptoms of any disease or disorder). Cal. Govt. Code § 12926(i). An overweight or underweight plaintiff thus might cite medical evidence to claim a protected “medical condition.”

While the FEHA thus far has not explicitly identified weight as a protected status, other states and certain California cities (San Francisco and Santa Cruz) have already made that leap.

Tipping the Scale: Best Practices For The Employer

Given the robust protections provided by the FEHA, California employers must proceed cautiously. Here are some tips to consider:

  • Examine existing processes and policies on disability, discrimination, and complaint practice.
  • Do not make assumptions about what job functions overweight or underweight employees can and cannot accomplish.
  • Treat requests for accommodation with sensitivity, keeping in mind that the individual might be entitled to protection under the FEHA for tasks that cannot be accomplished due to weight-related issues.
  • Improve policies that mandate the courteous treatment of employees, regardless of personal appearance.
  • Educate employees—especially supervisors—on what is appropriate conduct toward differently-sized employees, including bullying.
  • Warrant that participation in proactive “wellness” programs is voluntary and private.
  • Review job descriptions to ensure that any weight requirements are closely related to the essential requirements of the job.

Workplace Solution: Understanding the duties and responsibilities of employers to prevent “weight watching,” and to provide an accessible workplace, is critical. In an unsettled cultural and judicial landscape, more Americans are paying closer attention to weight discrimination and deeming it unacceptable. As policymakers consider adding “weight” to the emergent list of discrimination-protected classifications, employers must stride carefully.

Edited by Coby M. Turner.

Seyfarth Synopsis: The Office of the California Labor Commissioner (aka the DLSE) recently issued an opinion letter explaining how employers should calculate sick pay for commissioned employees. Somewhat surprisingly, the letter counsels that the rate of sick time pay for these employees must be calculated using one of the schemes applicable to non-exempt employees—even if the commissioned employees qualify as exempt outside salespersons or as “commissioned employees.” 

On October 11, 2016, the DLSE issued an opinion letter regarding California’s Healthy Workplace Healthy Families Act of 2014.  As is usual with opinion letters, the DLSE was responding to a request for guidance from a cautious employer seeking to cure uncertainty about how to interpret a statute.  Opinion letters are binding only on the particular employer who asked the question, but the rest of the California employment world generally pays attention; the letters the DLSE choses to publish provide general insight into the DLSE’s approach.

The employer here wanted to know the correct way to calculate the rate of pay for sick leave taken by commissioned employees.  The  statute provides three alternative methods:

(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.

(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time. Labor Code section 246(K)(1)-(3).

Based on this plain language, it would seem reasonable for California employers to use the scheme of section 246(k)(3), as commissioned employees are often exempt from overtime under applicable standards. But the DLSE has a different view. The opinion letter explains that the term “exempt,” as used in in this section, refers only to those employees who satisfy both the salary and duties tests of the professional, executive, or administrative exemptions.  By this reading, the term “exempt” does not include those employees who are exempt from overtime under the outside sales exemption or commissioned employee exemption.

To qualify as an outside salesperson, an employee must “customarily and regularly work more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.”  “Commissioned employees”  are persons working in the “Retail Industry” who earn more than one-half their compensation from commissions and whose  total compensation exceeds 1.5 times the minimum wage for each hour worked during the pay periodFor these employees, the DLSE says, employers should calculate sick time using one of the two sections applicable to nonexempt employees, even if they are actually exempt.

Workplace solution:  While the guidance may seem counter to the statutory language, the good news is that we now have some guidance.  To act consistently with the DLSE’s latest opinion, California employers should look to Labor Code sections 246(k)(1) or (2)—which articulate the two methods used to calculate sick pay for non-exempt employees—when determining how to appropriately calculate sick time for employees who receive commissions, even if they qualify as exempt from overtime as either an outside salesperson or a “commissioned employee.”

Seyfarth Synopsis: Travel time pay is a nebulous area of the law that can leave many employers stalled on the starting blocks. Here are some guidelines to help ensure that employees get paid for all hours worked, including any compensable travel time.

Ready. Set. Not so fast.

It makes common sense to most people that commute time—the time an employee travels between home and work and back again—need not be paid. But at what point does an employee’s time on the road become compensable?

What travel time counts as hours worked?

The answer depends on whether travel time is “hours worked.” California Wage Orders define “hours worked” as the time during which an employee is (a) subject to the employer’s control or (b) the employee is suffered or permitted to work, whether or not required to do so. If travel time falls under either category, the employer must pay for the time spent traveling.

A few points of note:

  • A potential exception to the no-pay-for-commuting rule exists when employees carry business-related tools or materials in their car to a worksite or work meeting. A recent California court held that where employees can use a vehicle for personal purposes during the commute, and are not required to drive a particular route, they are not subject to control of the employer even if they are transporting tools. But the DLSE opines that if an employee must deliver equipment or goods to the worksite for the employer, the travel time is compensable.
  • Labor Code section 2802 requires employers to reimburse employees for automobile costs (mileage, wear and tear, etc.) the employee incurs when being required to use a car for work. So while normal commute expenses are not reimbursable, expenses required beyond the reasonable commute require reimbursement. The DLSE has stated that paying the IRS mileage rate (currently $0.54 per mile) is a “presumptively reasonable” reimbursement rate.
  • Check out our prior blog post on travel time issues here, for more detail regarding compensation for travel time during the workday versus overnight travel out of town.

Getting the Green Light.

So we’ve reached the finish line, right? Hold your horses. Determining what constitutes travel time is a fact-sensitive inquiry that may not be all that simple to analyze in all circumstances. Here are some scenarios where drive time has been found to be compensable:

  • If an employee must attend an offsite conference or meeting, the time spent traveling to and from the meeting in excess of the employee’s normal commute is compensable.
  • Any time spent in reaching the airport or train station that is over and above the time spent in the employee’s normal commute is compensable.
  • Travel to a remote work site from an employee’s home may be compensable if the time spent goes beyond the employee’s normal commute.
  • Once an employee reports to work, any work-related travel during the day is compensable. The same goes for time traveling for a special assignment or emergency outside of regular hours.

Finally, remember that California requires employers to record all hours worked, including travel time. And because any time spent traveling is compensable, all compensable travel time in California counts toward the number of hours worked in calculating any required overtime premium pay.

Keep in mind that employers may establish a separate rate for travel, as long as it does not fall below the minimum wage, and as long as the employee is notified of the travel rate in advance.

Workplace Solution:  California employers must implement a clear travel policy to ensure compliance with this tricky area of the law. If you have any questions or need assistance drafting such a policy, please feel free to contact any of our attorneys.

Edited by Coby M. Turner.

Seyfarth Synopsis: Governor Jerry Brown recently signed pay equity legislation to build on SB 358, a gender pay equity bill that he signed just last year.

Recent state pay equity initiatives (in Massachusetts, New Jersey, New York) have focused on gender. California is different. Leave it to the state that last year passed the nation’s strictest pay equity law as to gender to take it up another notch.  SB 1063, dubbed the “Wage Equality Act of 2016,” extends last year’s Fair Pay Act amendments to Labor Code section 1197.5 to cover unequal pay as to race and ethnicity. Thus, effective January 1, 2017, California employers must not pay employees a wage rate less than the rate paid to employees of a different race or ethnicity for substantially similar work. (Read our prior alert for a description of the Act’s requirements and prohibitions.) Meanwhile, newly enacted AB 1676 will prohibit employers from using an employee’s prior salary as the sole basis to justify a pay disparity. In the process, however, California has declined to follow the Massachusetts example of forbidding employer inquiries into an applicant’s prior salary.

SB 1063 was introduced in February 16, 2016, just four months after Governor Jerry Brown signed into law SB 358 (one of the nation’s most aggressive gender pay equity bills). The move to include race and ethnicity was foreshadowed last summer when the California National Organization of Women—sponsor of this year’s bill—opposed the Fair Pay Act (SB 358) for its failure to include pay equity protections for various additional categories protected by anti-discrimination laws (such as race, ethnicity, sexual orientation, gender identity, and disability status).

Senator Hall, who authored the Wage Equality Act of 2016, justified the opposition by saying that “the 65 year old California Equal Pay Act fails to include one of the largest factors for wage inequity—race and ethnicity.” Senator Hall cited a 2013 study by the American Association of University Women reporting that “Asian American women make 90 cents, African American women make 64 cents, and Hispanic or Latina women make just 54 cents for every dollar that a Caucasian man earns. The wage gap isn’t only between men and women, as African American men earn just 75% of the average salary of a Caucasian male worker.”

Opponents of SB 1063 objected that it would go too far, too fast: SB 358 is still in its infancy,with its standards likely to be tested over the next several years in litigation. Therefore, the opponents argued, “the legislature should allow time for employees, employers, and the courts to interpret and implement the new boundaries of the equal pay law before seeking to amend and expand it even further.” Opponents also noted that employees have other ways to challenge pay discrimination. The Fair Employment and Housing Act already prohibits discrimination against people in many classifications, including race and ethnicity.

AB 1676, which was passed concurrently with SB 1063, will amend Section 1197.5 (the same section SB 1063 amends) to prohibit employers from using prior salary as the sole justification for a pay disparity. In its original proposed form, AB 1676 would have prohibited employers from seeking an applicant’s salary history information, just as its vetoed predecessor, AB 1017, had attempted to do last year. In vetoing AB 1017, Governor Brown stated that further gender pay equity changes should wait until we see how SB 358 plays out. The removal of any ban on asking about salary history likely made AB 1676 palatable to the Governor, and kept California from matching the new Massachusetts law, which prohibits Massachusetts employers from requesting an applicant’s pay history, unless the applicant has voluntarily disclosed that information.

What’s an employer to do? First, self-assess where your company is on pay equity. If you’ve not analyzed the issue before, conducting a proactive pay equity analysis could be the first and best step to take to achieve fair pay and diminish legal risk. Through the use of statistical models and analyses (conducted by a labor economist), employers can test the extent to which permissible factors explain existing pay differentials. This “look under the hood” is especially important for companies considering making public proclamations about the company’s state of pay equity. With SB 1063 now looming on the horizon, companies should not limit these analyses to gender. Engaging legal counsel to direct and conduct this work under attorney-client privilege minimizes risk that this analysis and related deliberations might be discovered in litigation. Even companies that are well-versed in pay equity are wise to revisit the issue with an eye to race and ethnicity. And all companies should review their written policies, practices, and hiring, promotion, and compensation factors to ensure that all comply with the requirements of the California Fair Pay Act.

Join members of Seyfarth’s Pay Equity Group and top labor economists on November 30 for a robust discussion around strategies for navigating the complexities of “pay equity”.

(with apologies to the song artist)

Seyfarth Synopsis: The Ninth Circuit has suggested it might upset longstanding “on call” practices by making California employers liable for “reporting time” pay to employees who phone in ahead of their schedule, only to find that they are not needed for the day.

On October 5, 2016, a Ninth Circuit panel indicated that it might call on the California Supreme Court to answer whether “calling in” to work amounts to “reporting for work” under California’s Wage Order 7-2001. The panel, in Case No. 15-56162 (9th Cir.), considered an interlocutory appeal from a decision by federal district court judge George H. Wu in the case Casas v. Victoria’s Secret Stores, LLC, CV 14-6412 (C.D. Cal).

Casas involves an on-call scheduling practice common among retailers: “on-call” employees call in a few hours before the scheduled start time to see if they need to appear for work.  Plaintiffs argued that this required act of picking up the phone amounts to “reporting” for work under Wage Order 7’s Reporting Time Pay provision. To Plaintiffs, this means that employers who fail to use call-in employees must pay reporting-time pay (subject to some exceptions). The rules on reporting pay generally provide that an employee who reports for work, but who is not put to work or is furnished less than one-half the usual or scheduled day’s work, is entitled to at least two hours and up to four hours of reporting-time pay.

In December 2014, Judge Wu rejected this “call-in” claim. Judge Wu relied on both the common meaning of “report” and the legislative history of Wage Order 7 to hold that to “report for work” plainly means to physically appear at the work site. Thus, contrary to Plaintiffs, simply lifting a receiver or tapping a touchscreen does not require the employer to pay reporting time when the on-call employee never actually shows up for work.

The Plaintiffs took an interlocutory appeal to the Ninth Circuit.

Will the Ninth Circuit put the call on hold? At oral argument, a panel of Ninth Circuit judges indicated that the panel might, for all practical purposes, place Judge Wu’s decision on hold. Pregerson, Noonan, and Paez—the three circuit court judges who took the line from Judge Wu—expressed skepticism that federal court is the appropriate venue to decide the on-call issue. Both Judges Paez and Pregerson repeatedly suggested transferring the call to the California Supreme Court. Judge Paez went so far as to iterate the statutory certification standard—that federal courts should certify important questions of state law to the state supreme court—and concluded that “this in my view, it seems to me, like a very important question that affects a lot of people.” These statements suggest that it is possible, if not likely, that the panel will call on the California Supreme Court for its guidance as to what California law is on this topic.

But will the Supreme Court accept a transfer? As Judge Paez recognized, even though the Ninth Circuit might put in a call for help, nothing requires the California Supreme Court to answer. Nonetheless, Judge Paez seems confident the Supreme Court will take the call since it has accepted other related employment cases from the Ninth Circuit in the past (including, for example, Oracle and Kilby).

Legislatures, could you help them place the call? Regardless of the Ninth Circuit’s actions, the switchboards of legislative bodies could light up in the coming year with calls to regulate on-call scheduling. As reported in this blog, just last year San Francisco became the first jurisdiction to penalize employers for not using employees scheduled for “on-call” shifts. Under the so-called Workers Bill of Rights, when employers require employees to be available for work but do not actually engage the employee, employers must pay the employee between two and four hours of pay, depending on the duration of the on-call shift.

The California Legislature considered similar legislation in its most recent session. Like the San Francisco ordinance, subject to certain exceptions, it would have required employers to pay on-call employees who were not ultimately called in to work their shifts.  The legislation did not pass,  but it seems likely that the legislative initiatives—at both the municipal and state level—will not end the matter.

Call me (call me) on the line, Call me (call me) any, anytime. The bottom line is that at least for now, Judge Wu’s well-reasoned decision is good law. But be sure to dial up this blog in the coming months to see if that number remains in good working order. We’ll be holding on the line to monitor the messages that courts and legislative bodies leave for employers wishing to continue the time-honored tradition of on-call scheduling.

Seyfarth Synopsis: Does carrying a pager nullify a rest break? What about the possibility of being tapped on the shoulder by your boss? Or being called on your cell phone? The California Supreme Court considered these and other scenarios during an hour-long oral argument on September 29, as it asked, What does it mean to not “work” during a rest break? Although the question seems straightforward, the answer does not yet seem clear to the justices.

The case is called Augustus v. ABM Security Services Inc., S224853. We previously blogged about this important case here.

Though rest breaks are paid, Labor Code Section 226.7 prohibits employers from requiring “work” during those breaks. The trial court found that ABM owed damages—almost $90 million—to a class of 14,000 security guards, some of whom had to carry radios during rest breaks. The trial court’s broad rule—“if you are on call, you are not on break”—was reversed by the Court of Appeal, which said that “remaining available to work is not the same as performing work.” The consequence of not providing a rest break is an extra hour of pay for each day in which a break was not provided.

From the oral argument, it appears that the justices are struggling with how to craft a rule for what counts as “work” that would not, in Justice Goodwin H. Liu’s words, be a “recipe for litigation.” The justices actively questioned counsel for both sides, leaving it unclear whether a majority agreed with ABM’s position that simply being on call is not work, or with the plaintiffs’ position that any requirement (e.g., listen for your pager) would prevent an employee from putting on a “sleep mask” and headphones, and would nullify the entire rest break.

The justices explored whether there should be a distinction between (1) the mere potential of being called back to work during a break and (2) a requirement that employees be easily reachable during a break. And Justice Liu, who seemed most skeptical of ABM’s position, repeatedly asked whether employees could be disciplined for refusing to answer a summons to return from a break.

While it remains to be seen what rule the high court ultimately crafts, here are the main options raised in briefing and at oral argument:

  • Any possibility of “fetching” or “hailing” nullifies a break: this least employer-friendly position, adopted by the trial court, was met with skepticism by Justice Leondra L. Krueger and others. Justice Liu, however, asked both sides why there should not be a blanket prohibition of employers contacting employees during rest breaks. This rule would have the virtue of “simplicity.” ABM responded that this would be a “really bad rule,” and plaintiffs did not vigorously defend Justice Liu’s proposal either, acknowledging that employers may have emergency reasons for calling an employee back.
  • The Brinker rule: Plaintiffs proposed the standard set in Brinker for meal breaks: an employer provides a compliant break “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted [10]-minute break, and does not impede or discourage them from doing so.” On-call time would not satisfy Brinker, Plaintiffs argued, because being “on call” is a “duty.”

It’s unclear whether this rule could garner a majority. Justice Werdegar (Brinker’s author) pointed out that the “relieved of all duty” requirement governing meal breaks is absent from the rest break statute, and that rest breaks are paid. At the same time, though, she and other justices asked ABM why the Brinker rule could not also apply to rest breaks.

  • Being on-call does not nullify a break: this employer-friendly position, adopted by the Court of Appeal, was advocated by ABM. The justices did not explicitly mention the appellate court’s opinion during oral argument. At one point, however, the Chief Justice did remark that being on call seems like “work,” to which ABM responded by explaining that “work” is the actual performance of duties, not being available to perform them.

When asked specifically what overarching rule the Court should craft, ABM advocated a hybrid of Brinker and Mendiola (which held that on-call time must be paid). Under ABM’s proposed rule, an on-call rest break would be valid if the employee was given a “reasonable opportunity for an uninterrupted break,” during which the employee could engage in personal activities. Carrying a pager could ease any restrictions on an employee’s mobility, ABM pointed out, and would thus satisfy its proposed rule.  This rule would have the merit of distinguishing true rest breaks from “sham breaks” that are frequently interrupted in practice.

  • The “Liu “presumption”: Justice Liu, after calling ABM’s rule something that “sounds reasonable” but that is hard to implement in practice, proposed a presumption that a break is compliant if there is no on-call policy, if employees are free to do what they want, and if there is a “policy and practice” of not interrupting breaks unless there is an emergency. The other justices did not pick up on Justice Liu’s proposal.

The Supreme Court’s decision is expected within the next 90 days (by December 27). We will share a full analysis of the decision as soon as it is issued.

Edited by Michael A. Wahlander.

We are delighted to announce that yours truly—Seyfarth’s beloved CalPeculiarities Employment Law Blog—has just won a place among the Top 100 Legal Blogs on the web.

We are humbled by this honor, and know we owe it to you: the readers who keep us on our toes!

We are extremely grateful for your continued support. Please continue to let us know how we can serve you best!

The CalPecs Blog Team

Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on background checks and gig economy workers; and more. Small employers will be relieved the Governor vetoed expanded unpaid parental leave, but it will likely return in future sessions.

Friday, September 30, was Governor Jerry Brown’s deadline to sign or veto bills approved during the 2015-2016 Legislative Session. We summarize below this year’s bills that did and did not receive the Governor’s signature. Read on to prepare for our October 6 webinar offering Workplace Solutions for these pesky new Cal-peculiarities and register here.

SIGNED

Pay Equity

Fair Pay Act: Prior Salary & Race/Ethnicity. Saving some high-profile approvals to the last day, on Friday the Governor signed into law AB 1676 and SB 1063.  AB 1676 amends last year’s Fair Pay Act, Section 1197.5 of the Labor Code, to prohibit employers from considering prior salary as the sole justification for any disparity in compensation. SB 1063 expands the Fair Pay Act to race and ethnicity, and responds to critics that the pay equity issue is not limited to gender.  Specifically, it would prohibit employers from paying employees a wage less than the wage paid to employees of a different race or ethnicity for substantially similar work. Since both bills were signed by the Governor, both bills’ substantive changes will become law, though only the last-chaptered bill will be that which officially becomes law.

Before amendments applied in the legislative process, AB 1676 would have prohibited employers from seeking an applicant’s salary history information just as its vetoed predecessor, AB 1017, attempted to do last year. In vetoing AB 1017, Governor Brown stated that we should wait to see whether last year’s momentous Fair Pay Act, SB 358, addressed the pay equity issue before making further changes.  The amendments likely made this amendment palatable to the Governor, and kept California from matching the new Massachusetts law prohibiting Massachusetts employers from requesting the compensation history of a prospective employee before making an offer, unless the prospective employee has “voluntarily” disclosed that information. Amends Labor Code Sections 1197.5 and 1199.5. Effective January 1, 2017.

Wage and Hour

Agricultural Workers. AB 1066  enacts the “Phase-In Overtime for Agricultural Workers Act of 2016,” which requires employers to pay agricultural workers overtime over a four-year phase-in process. Beginning January 1, 2019, employers are required to pay overtime for any hours worked over 9.5 hours per day or 55 hours per workweek. Each year the hours worked triggering overtime pay will reduce, until reaching 8 hours per day, 40 hours per week, beginning January 1, 2022. Also beginning on January 1, 2022, any employee who works over 12 hours per day must be paid at a rate no less than double the regular rate of pay. The Governor may temporarily suspend the scheduled overtime requirement but only if the minimum wage increases are suspended as well. Employers that employ 25 or fewer employees will have an extra three years to comply with the phase-in and must begin paying overtime by January 1, 2022.  This bill began as AB 2757, which failed to pass the house of origin in June.  Undeterred, author Assembly Member Lorena Gonzales resurrected it with the legislative “gut and amend” trick, putting its contents into a bill formerly relating to educational employees.  Amends Labor Code Section 554 and adds Chapter 6 (commencing with Section 857) to Part 2 of Division 2 of the Labor Code.  Effective January 1, 2017.

Minimum Wage Violation Challenges. AB 2899 requires that any employer, before appealing a decision by the Labor Commissioner (LC) relating to a violation of wage laws, must file a bond—in favor of the unpaid employee—with the LC that covers the total amount of any minimum wages, liquidated damages, and overtime compensation owed. The bill also provides that the total amount of the bond is to be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings. Amends Labor Code Section 1197.1. Effective January 1, 2017.

Itemized Wage Statements. AB 2535 comes on the heels of the recent federal decision, Garnett v. ADT,  and clarifies Labor Code section 226. This bill specifies that employers need not list the number of hours worked on wage statements for any employee who is exempt from minimum wage and overtime requirements under the applicable IWC Wage Order or under statutes specified in Labor Code Section 226(j). Amends Labor Code Section 226.  Effective January 1, 2017.

Leaves of Absence

Paid Family Leave Expansion.  AB 908, which the Governor signed on April 11, 2016, increases the amount of benefits paid to employees on paid family leave and state disability leave from the current level of 55 percent to either 60 or 70 percent depending on the applicant’s income.  Read our report on AB 908 hereAffects Sections 2655, 3303, and 2655.1 of the Unemployment Insurance Code. Effective January 1, 2017, but provisions of the bill not operative until January 1, 2018.

Background Checks

Criminal History. AB 1843 prohibits employers from asking an applicant for employment to disclose any information regarding juvenile convictions and seeking or utilizing any information related to juvenile arrests, detentions, or court dispositions as a factor in employment determination. The bill does specify that an employer at a health facility can inquire into an applicant’s juvenile criminal background if a juvenile court made a final ruling or adjudication, that the applicant had committed a felony or misdemeanor relating to sex crimes or certain controlled substances crimes within five years prior to applying for employment. Still, these employers cannot inquire into an applicant’s sealed juvenile criminal records. Read more about existing California law on background checks hereAmends Labor Code Section 432.7.  Effective January 1, 2017.

Unfair Immigration-Related Practices. SB 1001 is a redux of 2015’s AB 1065, which was held in committee (and which we reported on here). SB 1001, like AB 1065, makes it an unlawful employment practice to request more or different documents than required under federal law to verify that an individual is not an unauthorized immigrant, or to refuse to honor documents tendered that on their face reasonably appear to be genuine, refuse to honor documents or work authorization based on specific status or term that accompanies the authorization to work, or to attempt to reinvestigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice. This year’s bill provision states that job applicants and employees who suffer an “unfair immigration-related practice” can file a complaint with the DLSE for enforcement. The bill provides that a violation of these provisions can result in a penalty of up to $10,000. Adds Section 1019.1 to the Labor Code.  Effective January 1, 2017.

Transportation Network Companies

Background Checks. AB 1289 requires a transportation network company (“TNC”; e.g., Uber) to conduct, or have a third party conduct, criminal background checks on each participating driver. This bill follows a 2014 lawsuit that accused TNCs of misleading customers by suggesting their background checks were the toughest in the industry. The bill also prohibits a TNC from contracting with a driver who is currently registered on the DOJ’s National Sex Offender Public Website; has been convicted of specified felonies within the past seven years; and/or has been convicted, within the past seven years, of misdemeanor assault or battery, domestic violence, or driving under the influence of drugs or alcohol. Adds Section 5445.2 to the Public Utilities Code.  Effective January 1, 2017.

Driving Under the Influence. AB 2687 makes it unlawful for a person to drive a vehicle with a blood alcohol level (BAC) of 0.04% or more when a passenger for hire is in the vehicle. The bill comes as an effort to lower taxi cab and ride sharing service driver’s BAC limit—currently at 0.08%—to the BAC limit of 0.04% as required for commercial motor vehicle drivers. Amends Vehicle Code Sections 23152 and 23153.  Effective July 1, 2018.

Personal Vehicles. AB 2763 defines a personal vehicle, used by a participating driver in a transportation network company, as one that has a passenger capacity of eight persons or less, (including the driver) and is owned, leased, or rented for a term that does not exceed 30 days, or otherwise authorized for use by the participating driver. Amends Public Utilities Code Section 5431.  Effective January 1, 2017.

Discrimination/Harassment

Employment Protections. AB 2337 expands the notice requirement employers with twenty-five or more employees must give to employees regarding domestic violence protections. Specifically, this bill provides that an employer must inform each new employee—and other employees upon request—of the rights protecting employees affected by domestic violence in writing. The Labor Commissioner is charged with developing the form providing notice by July 1, 2017.  Employers are not required to provide notice until the Labor Commissioner posts the form. Amends Labor Code Section 230.1.  Effective July 1, 2017.

Sexual Harassment Prevention Training. AB 1661 requires local agency officials to receive two hours of training and education on sexual harassment prevention within the first six months of taking office or commencing employment. To meet the requirements of this bill, local agency officials, including any member of a legislative body and any elected official of cities and counties, and special districts, must continue to receive this training once every two years. While AB 1661 is specific to local agency officials, AB 1825, enacted in 2004, established the same provisions for the workplace. AB 1661 comes on the heels of various high-profile sexual harassment cases against elected officials. Adds Article 2.4.5 (commencing with Section 53237) to Chapter 2 of Part 1 of Division 2 of Title 5 of the Government code.  Effective January 1, 2017.

Employment Discrimination. AB 488 allows individuals employed under a special license in a nonprofit sheltered workshop or rehabilitation facility to bring an action under the Fair Employment and Housing Act (FEHA) for prohibited harassment or discrimination. This bill came as an expansion of AB 1443, enacted in 2014, which extended FEHA’s protections to unpaid interns and volunteers. AB 488 now extends FEHA’s protections to workers with disabilities. Amends Section 12926, and adds Section 12926.05 to, the Government Code. Effective January 1, 2017.

Other Employee Protections

Employment Contracts—Choice of Law and Forum. SB 1241 prohibits an employer from requiring an employee, who resides and works in California, as a condition of employment, to agree to a provision that would either require the employee to litigate or arbitrate employment disputes (1) outside of California or (2) under the laws of another state. The only exception is where the employee was individually represented by a lawyer in negotiating an employment contract. The bill provides that any contract that violates these provisions is voidable by the employee. A court may award an employee reasonable attorney’s fees, among other remedies, for enforcing rights under the act. Read our in-depth report on SB 1241 hereAdds Section 925 to the Labor Code.  Effective January 1, 2017.

Employment Heat Safety. SB 1167 provides that the Division of Occupational Safety and Health (DOSH) shall propose to the Occupational Safety and Health Standards Board (Standards Board) for review and adoption, a standard that minimizes heat-related illness and injury among workers working in indoor places of employment by January 1, 2019. This bill comes as a response to a 2012 OSHA decision, upheld in 2015 by the Cal/OSHA appeals board, in which a staffing company and warehouse operator were fined for the heat illness suffered by an employee who was working inside a metal freight contained in over 100 degree heat. Adds Section 6720 to the Labor Code.  Effective January 1, 2019.

Employee Contact Information. AB 2843 expands an existing provision of the California Public Records Act (CPRA) that exempts the homes addresses and home telephone numbers of certain public employees from public disclosure to now cover all public employees, including persons paid by the state to provide in-home support services. Additionally, this bill extends the CPRA exemption to include the employee’s personal cell phone number and birth date. However, telephone numbers will be made available to bargaining agents for those employees. Amends Government Code Sections 6253.2 and 6254.3.  Effective January 1, 2017.

Industry Specific

Property Service Workers. AB 1978 creates the Property Services Workers Protection Act by establishing various requirements for the janitorial industry, including registering annually with the DLSE, to protect janitorial employees from wage theft and sexual harassment. The provisions of this bill apply to employers that employ at least one “covered worker” who enters into a contract, subcontract, or franchise agreement to provide janitorial services. This bill also requires the DLSE to maintain a database of property service employers and to develop a biennial sexual harassment and violence prevention training. This bill prohibits an employer from registering or renewing its registration if it has not fully satisfied any final judgment for unpaid wages or made appropriate tax contributions. “Successor employers” are also liable for any wages and penalties owed to the predecessor’s employees. The bill was signed while janitors were fasting outside of the CapitolAdds Part 4.2 (commencing with Section 1420) to Division 2 of the Labor Code.  Effective July 1, 2018.

Talent Services. AB 2068 updates the Talent Service Act’s existing communication and contractual protections to include new technologies, such as mobile applications. Specifically, AB 2068 strengthens the protection for an artist’s information or image to include information posted on an online service, online application, mobile application, or website. AB 2068 also updates the communication and advertisement protections between talent agencies and artists by including communication through the use of a telecommunication device, in print, on the Internet, or through the use of a mobile or online application or other electronic communication. AB 2068 also adds “text message” and other “electronic communication” to the list of methods by which an artist may ask that photographs and other information about the artist be removed from a website, online service, online application, or mobile application owned or serviced by the talent service. Amends Labor Code Sections 1703 and 1703.4.  Effective January 1, 2017.

Work Experience Education. AB 2063 provides an additional option for a student, at least 14 years old, to participate in work experience education. The bill also increases the number of hours per week a student may participate in job shadowing from 25 to 40 hours per semester, if the principal of the school where the student is enrolled certifies that it is necessary for the student’s participation in a career technical education program. Amends Education Code Section 51760.3 and 51769.  Effective January 1, 2017.

Commercial Online Entertainment Employment Services. AB 1687 addresses age discrimination in the entertainment industry by prohibiting a commercial online entertainment employment service (i.e., IMDb) that enters into a contract, from publishing a subscriber’s age or date of birth in an online profile. Proponents of this legislation cited cases such as Hoang v. Amazon.com, Inc, et al, in which a subscriber sued for having her age published on her profile page. The bill also requires that a service provider—upon request by the subscriber—remove age information from public view in any online profile under its control. Adds Section 1798.83.5 to the Civil Code. Effective January 1, 2017.

Other

Single-User Restrooms. AB 1732 requires all single-user toilet facilities in any business establishment, place of accommodation, or government agency to be identified as all-gender toilet facilities. The bill also provides that local officials responsible for code enforcement are to inspect for compliance. Adds Article 5 (commencing with Section 118600) to Chapter 2 of Part 15 of Division 104 of the Health and Safety Code.  Effective March 1, 2017.

VETOED (i.e., “it coulda been worse”)

Parental Leave. SB 654 would have significantly expanded California’s parental leave laws by requiring employers with 20 to 49 employees to provide up to six weeks of unpaid, job-protected parental leave and paid health benefits to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Existing law—the California Family Rights Act—applies only to employers with 50 or more employees, and provides for at least 12 weeks of job-protected parental leave. The Governor vetoed this bill on September 30, stating: “It goes without saying that allowing new parents to bond with a child is very important and the state has a number of paid and unpaid benefit programs to provide for that leave.  I am concerned, however, about the impact of this leave particularly on small businesses and the potential liability that could result.  As I understand, an amendment was offered that would allow an employee and employer to pursue mediation prior to a lawsuit being brought.  I believe this is a viable option that should be explored by the author.”  In other words, we likely have not seen the last of this proposal.

Examination of Jurors. AB 1766 would have required that prospective jurors be referred to by either an identification number or abbreviation during voir dire in criminal trials. In his August 29 veto message, the Governor stated: “The open nature of criminal trials preserves both the defendant’s right to a fair and open trial, as well as the public’s faith in the court’s impartial application of the law. Under existing law, there are adequate remedies available if the court finds good cause to deny public access to the voir dire process or to specific juror information. These situations are best addressed on a case by case basis, and I do not believe there is a demonstrated need for a wholesale change at this time.”

BILLS THAT DIDN’T MAKE THE LEGISLATIVE CUT (i.e., “it coulda been a lot worse”)

Double Pay on the Holiday—2016 Edition. The Double Pay on Holiday Act of 2015 failed to make its way to the Governor for the second year in a row. AB 67 would have required retail and grocery store establishments, as well as restaurants located within them, to pay at least twice the regular rate of pay for employees who work on Thanksgiving.

Employee Time Off. AB 2405 would have required an employer to provide an employee at least eight hours annually of paid, job-protected, time off for an absence under the Family School Partnership Act. This bill came on the heels of SB 579, chaptered in 2015, which expanded the authorized reasons an employee can take job-protected time off under the Act and specified the definition of ‘family member” under California’s Kin Care. Read our report on SB 579 here.

Work Hours. SB 878 was similar to AB 357, the Fair Scheduling Act of 2015, which did not make it out of the Assembly. SB 878, the Reliable Scheduling Act of 2016, would have required that restaurant, grocery, and retail employers provide non-exempt employees with a 21-day work schedule in advance of their first shift on that work schedule. SB 878 would have required at least seven days advance notice. SB 878 would have required employers to pay “modification pay”—defined as compensation in addition to regular pay (the hourly rate calculated based upon 90 days prior)—if any scheduled shift is canceled, moved, or added, and for each shift for which an employee is required be on call but is not called into work.

Meal and Rest or Recovery Periods. AB 1948 would have provided a statutory remedy for an employer’s failure to provide a meal or rest or recovery period. The bill would have specified that the entire “penalty amount” was an additional hour or pay for each day that a meal or rest or recovery period was not provided to the employee.

California Workplace Flexibility Act. SB 985, SB 368’s predecessor, would have allowed employees to submit a written request for a flexible work schedule of up to four 10-hour days per week without obligating the employer to pay overtime for the 9th and 10th hours worked per day. The employer would have been obligated to pay overtime for any hours worked over 10 hours per workday or 40 hours per workweek.

Age Information in Employment. AB 984 would have prohibited an employer from using information obtained via websites regarding a person’s age to discriminate against an employee or applicant for employment. The bill also would have specified that a service provider is considered as doing business in this state and subject to California’s antidiscrimination laws when they knowingly accept payment from persons in California in exchange for posting their resumes and professional photos online.

Voluntary Veterans Preference Policy. AB 1383 would have created the Voluntary Veterans’ Preference Employment Policy Act to authorize a private employer to establish a written veterans’ preference employment policy. The bill also would have specified that granting a veteran preference, in and of itself, would not violate any local or state equal employment opportunity law or regulation, including, but not limited to, FEHA; and would have prohibited a veterans’ preference employment policy from being established or applied for the purpose of discriminating against an employment applicant on the basis of a protected classification.

Independent Contractors. AB 1727 would have established rights for independent contractors to organize and negotiate with “hosting platforms.” This bill would have provided a right for independent contractors to engage in “group activities” in an effort to negotiate through activities such as withholding work and boycotting or critiquing labor practices. The bill would have authorized an independent contractor or a representative of independent contractors claiming a violation under this bill to bring an action in superior court and to seek injunctive relief.

Employment Arbitration Agreements Discrimination. AB 2879, the “Service Member Employment Protection Act,” brought back the language of 2015’s AB 465, which the Governor vetoed (read our summary here), but limited the application to military service members, similar to USERRA. Specifically, the bill would have prohibited employers from requiring service members to waive any Labor Code protections, including the right to file and pursue a civil action or complaint, and would have prohibited employers from requiring service members to accept private arbitration, as a condition of employment, unless the waiver was “knowing and voluntary and not made as a condition of employment.”

DLSE Enforcement. AB 2261 would have provided the Department of Labor Standards Enforcement (DLSE) with new independent authority to, with or without an employee complaint, bring an action against an employer that it suspects may have terminated or otherwise discriminated against an employee in violation of any law under the jurisdiction of the Labor Commissioner. The authors of this bill argued that despite laws providing employees protection and encouragement to report abuse, the reality is that many workers do not report out of fear of losing their jobs. AB 2261 was built upon AB 970, which the Governor signed into law last year, and which we wrote about here.

Employee Safety. AB 2895 would have required an employer to keep at each worksite with three or more employees a complete, updated copy of the currently required written injury prevention program and make it available for inspection by any employee or by the Division of Occupational Safety and Health upon request. The bill would have also required an employer to inform each employee of the availability, and employee’s rights, to inspect and receive a copy of the injury prevention program. Additionally, an employer that received a written request would have had to  comply within a specified timeframe. The bill would have also entitled the employee to injunctive relief if the employer did not timely respond to the request.

Human Trafficking Training. AB 1595 would have required public and private mass transportation providers (bus, train, light rail, etc.) to provide training to recognize and report the signs of human-trafficking to employees who were likely to interact with victims of human trafficking. AB 1942 would have required the same training as AB 1595 but it was specific to hotels and motels that provide lodging services.

Sexual Offenses Against Minors. AB 2199 would have defined a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor. The bill specifically provided that a person in a “position of authority” included, but was not limited to, a stepparent, foster parent, partner of the parent, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, or employer, or employee of one of the aforementioned persons.

PAGA. AB 1317 expanded on last year’s bill, AB 1506, which was signed by the Governor, that gave employers a limited right to cure certain wage-statement violations before an aggrieved employee could sue under PAGA. This bill would have provided an employer a right to cure any violation of the Labor Code before an employee could sue and would have provided an appropriation to the Labor and Workforce Development Agency to establish new positions to review and investigate PAGA cases. This bill was stuck in the Senate committee on rules.

PAGA Reform. None of the bills in this year’s five-bill Private Attorneys’ General Act (PAGA) reform package made it out of the Assembly. Those bills were:

  • AB 2461 would have limited the violations an aggrieved employee was authorized to bring and required specific procedures before suing.
  • AB 2462 would have provided employers with a right to cure before an employee brought a civil action.
  • AB 2463 would have established a penalty cap of $1,000 for each aggrieved employee.
  • AB 2464 would have authorized a court to dismiss an action if the court found the aggrieved employee suffered no appreciable physical or economic harm.
  • AB 2465 would have required the Labor and Workforce Development Agency to investigate alleged violations and determine if there was a reasonable basis for a civil action.

Workplace Solutions.

Head spinning?  We’ll summarize all the new and almost-laws and give you practical tips to prepare for them in our webinar on October 6.  Register here.  Or feel free to contact any of the authors or your favorite Seyfarth attorney with any questions.