Seyfarth Synopsis: Employment-related cases pending before the California Supreme Court concern various questions that sometimes seem technical, but the answers they elicit will have big consequences. Questions raised by the current crop of cases include standing to sue, the availability of certain claims and remedies, federal preemption of California laws, what counts as compensable time,

Seyfarth Synopsis: Plaintiffs’ lawyers routinely invoke Labor Code provisions to conduct pre-litigation discovery by seeking employment records. For employers that scramble to comply with these often burdensome demands, we offer some practical tips on how to utilize the protections the law provides for employers and for the (perhaps) unsuspecting employees on whose purported behalf the

Seyfarth Synopsis: August 31 was the California Legislature’s last day to send bills to Governor Brown for his approval or veto by his September 30 deadline. Chief among them are bills addressing sexual harassment.

2018, the year of #MeToo, saw California Senators and Assembly Members introduce numerous bills on sexual harassment-prevention, often followed by

Non-California employers with non-exempt workers who work in California will be interested in the following piece, originally posted on Seyfarth’s Wage Hour Litigation Blog.

Seyfarth Summary: On July 12, 2018, the California Supreme Court agreed to address questions posed by the Ninth Circuit about whether California Labor Code provisions apply to an out-of-state employer

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

By Nicholas Clements and Kerry Friedrichs

Well-intended employers often lament the various gotchas that await them down the dark and winding road that is the California Labor Code. Perhaps no turn in the road is more treacherous than the one at Wage Statement Junction. Here one crosses at extreme peril, for the California Legislature, in Labor Code section 226, has planted legal land mines that can blow up at the slightest provocation.

A Common Sense Question With a Less-Than-Intuitive Answer:  “Can’t I avoid hazards if I just pay them the right amounts and on time?” Sadly, no, there’s much more to it. Labor Code section 226(a) lays out a long list of other requirements, some more sensible than others.

Not so Simple. Timely paychecks must be accompanied by a “simple” wage statement at least semi-monthly, and the wage statement must include nine distinct pieces of information for each employee:
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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

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)

In November, Democrats won a supermajority in the California Legislature (55 seats in the Assembly and 27 in the Senate). Democrats now have the votes to pass measures requiring a two-thirds majority vote, without any help from that pesky other political party.  Even more, they then need only to pass the bill to Democrat Governor Jerry Brown for his seal of approval.  Will the Dems use this newfound power to make California even more peculiar on the labor and employment front?  Will Brown rubber stamp what the Dems put on his desk, or continue his reputation of marching to his own drummer? 

It’s still quite early in the 2013-14 Legislative Session – a time when many of the bills introduced are merely “spot” holders for later substantive amendments. Nonetheless, while it is still too early to make any concrete predictions, we can make some educated guesses about what will emerge on the labor and employment front this year:

Prediction #1: More Protected Statuses

The unemployed:  Governor Brown vetoed legislation last year that would have made unemployed a protected status under FEHA, stating that “[t]his measure seeks to prevent discrimination against the unemployed based on their job status by prohibiting employers from stating in employment ads that applicants must be employed.  Unfortunately, as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion.”  The bill’s author has left the Legislature. If a new bill now goes through the process without such “confusion,” that bill may meet the Governor’s approval.  If so, it would not be the first.  Oregon recently enacted similar protections, as did the District of Columbia and New Jersey.  There was also a similar bill pending on the federal level that died in Committee. 

The homeless:  Assembly Member Ammiano has introduced AB-5, dubbed the “Homeless Person’s Bill of Rights and Fairness Act” that would prohibit discrimination under the Unruh Act and Fair Employment and Housing Act on the basis of “housing status,” defined as “the status of having or not having a fixed or regular residence, including the status of living on the streets, in a vehicle, or in a homeless shelter, or similar temporary residence or elsewhere in the public domain.”  The bill is currently before the Assembly Committee on the Judiciary.

Potential consequences of either of the above becoming law?  Employers will face additional challenges in ensuring that recruiters, human resources personnel, interviewers, and management employees are trained to be aware, navigate, and comply with these requirements. 
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Philosophical Question: If a tree falls in the forest and there is no one there to hear it, does it make a sound?

Philosophical Employment Law Question: If a California employee receives a paycheck that does not contain the pay period dates (or other custodial information), does the employee suffer an injury?

California courts, among the most liberal in the nation, have struggled with this deep philosophical question (not the one about the trees).

Majority View: Most courts have concluded that an employee does not suffer an injury when his or her paystub does not contain information like pay period dates or the employer’s full name and address. These courts require proof of an actual injury to trigger penalties under Labor Code section 226.

Minority View: A smaller number of courts have held that injury occurs automatically if the paystub does not contain every single element that Labor Code section 226 requires.

CA Lawmakers’ View: The division among the courts prompted the Legislature to pass (and the Governor to approve) legislation that amended Labor Code section 226 (effective January 1, 2013) to state that an employee will be deemed to suffer injury if an employer fails to provide a wage statement or accurate and complete information as required by law, and the employee cannot promptly and easily determine from the wage statement alone one or more of the following:
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