On October 11—his very last day to sign or veto bills—Governor Brown vetoed the much-feared Assembly Bill 465. AB 465 would have banned mandatory agreements to arbitrate Labor Code claims as a condition of employment. At least for now, employers with such arbitration programs can breathe a sigh of relief. We previously reported about AB 465 in more detail here
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2015 California Labor and Employment Legislation Update: It’s Final!
October 11, 2015, was Governor Brown’s last day to sign bills the California Legislature presented to him following the first year of the 2015-2016 Legislative Session. Below is a summary of what did and did not make Governor Brown’s final cut, and some practical tips for California employers to prepare themselves for compliance with these new California peculiarities.
SIGNED BY
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No More “Aliens”: Outdated Term Shipped Back to Home Planet
Did you know that California law currently allows employers in certain circumstances to give preferential treatment to candidates who aren’t “aliens”? No, you didn’t miss the new Independence Day movie (what took so long?) or yet another landing at Roswell. A 1937 statute, codified in California Labor Code section 1725, has for almost 80 years defined “alien” to mean “any
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Managing the Two P’s: Profanity and Politics in the Workplace
By Nick Geannacopulos and Emily Barker
You have likely noticed that business interactions and the way people communicate professionally have declined in formality over recent years. The “Friday Casual” day has become the casual week. Formal letters have turned into short emails. Even slang has devolved to emoticons and language unheard of in the workplace a decade ago. Navigating through
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Minding the Least Among Us: California Legislature Ensures Full Take-Home For “Minor” Minor Performers
Starting January 1, 2014, unemancipated minors working as extras or background performers will be able to take home their full pay, and their employers will be relieved of the obligation to maintain a trust for those minors. AB 533, which Governor Brown signed into law yesterday, exempts employers of minors under contracts for artistic employment for services as an
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Plaintiffs’ Bar Agog Over PAGA’s Subsequent Violations
Paga is a city in Ghana, well-known for its crocodile pools. PAGA, California’s Private Attorneys General Act of 2004, allows employees to sue their employers on behalf of themselves and other “aggrieved” employees to recover penalties for Labor Code violations. What do the two, other than a shared moniker, have in common? Run afoul of either and you’re bound to
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A New And Improved FEHC? Report From The Fair Employment and Housing Council’s Inaugural Meeting
As a loyal reader of our CalPecs Blog, you know that last year’s Senate Bill 1038 eliminated the Fair Employment and Housing Commission, including its administrative adjudication of FEHA claims. The bill created a Fair Employment and Housing Council, to perform the former Commission’s regulatory functions.
Is the Council a new and improved “FEHC”? Time
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The 2013 Amendment to the Wage-Statement Statute: A Dog With Bark Worse Than Bite?
Labor Code Section 226 makes California employers liable for penalties if they issue inadequate wage statements that cause ‘injury.” Courts generally have denied penalty claims where hypertechnical violations did not cause real harm. Unsatisfied with this result, employee advocates lobbied for a 2012 amendment. Senate Bill 1255, effective January 1, 2013, amends Section 226(e) to deem “injury” to occur
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2013 Changes at California’s Department of Fair Employment and Housing
Phyllis W. Cheng is the Director
of the California Department of Fair Employment and Housing.
A 2012 state budget trailer bill revolutionized California’s Fair Employment and Housing Act (FEHA), the state’s preeminent civil rights law. As of January 1, 2013, in addition to saving the state $784,000 annually, the measure further:
- Eliminated the former Fair Employment and Housing Commission (FEHC), which previously conducted administrative hearings and rulemaking.
- Ended administrative adjudication and authorized the Department of Fair Employment and Housing (DFEH or Department), the state’s enforcement agency, to file cases directly in court. Prior to the DFEH filing a civil action, all parties must undergo free mandatory dispute resolution in its internal Dispute Resolution Division.
- Authorized courts, upon the Department prevailing, to award the DFEH reasonable attorney’s fees and costs to be deposited into a special fund.
- Created within the DFEH the Fair Employment and Housing Council (Council) to conduct rulemaking. Council membership is comprised of seven volunteer members appointed by the Governor and confirmed by the Senate, as well as the DFEH Director as an ex officio member.
The DFEH has swiftly moved forward on all these changes.
Expediting Investigations: Under its new HoudiniESQ cloud-based case management system, the Department expedited complaint investigations from 11 to nine months to ensure sufficient time for mandatory dispute resolution required by the new amendments.
Expanding Dispute Resolution Services: The DFEH expanded its former Mediation Division to a Dispute Resolution Division. Seven experienced attorney mediators in Northern and Southern California offices now provide both voluntary and mandatory dispute resolution services. In addition, a non-attorney mediator provides voluntary mediation services for small housing cases. In prior years, the DFEH mediators’ successful settlement rate has been 82 percent.
Filing Civil Actions: The Department is now filing civil actions in Superior Court on investigated cases with merit findings that were not successfully resolved through dispute resolution. No damages caps are available in civil actions. The DFEH can be awarded reasonable attorneys’ fees and costs, including witness fees, upon prevailing. The Department pegs its attorney hourly rate to that of the California Office of the Attorney General.
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The FEHC’s Last Stand: Commission Rides Off Into The Sunset After Wrangling The New Disability Regulations
We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast. The new disability regulations, which went into effect on December 30, 2012, are no exception.
The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability. However, these “clarifications” expand employers burdens under California law.
Expanded Definition Of “Disability” Including:
- post-traumatic stress disorder
- autism spectrum
- palsy
- heart disease
- multiple sclerosis
- seizure disorder
- clinical depression
- obsessive compulsive disorder
- schizophrenia
- bipolar disorder
Before the regulations: Whether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions.
After the regulations: Not much to debate. The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such.
Expanded Definition of “Major Life Activities”: The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).
How To Determine When Functions Are Essential? The regulations provide additional guidance as to when a job function is essential. Updated and accurate job descriptions are crucial and are now actually required by the regulations. Performance evaluations will also assist in determining whether a function is essential.
The Growing List Of Reasonable Accommodations: Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.