E-Blasts

Over the weekend, Governor Brown finished off his last rounds of approving and vetoing bills passed by the Legislature. One of the bills that was vetoed by Governor Brown over the weekend that was of particular importance to employers in California was Assembly Bill 3080 (“AB 3080”) which would have prohibited employees from being forced to sign arbitration and/or non-disclosure agreements as a condition of employment under the California Labor Code. Governor Brown stated in his veto message that the bill plainly violates federal law based on the case law which states the Federal Arbitration Act governs both the enforcement of arbitration agreements and the initial formation of the arbitration agreement.

Yesterday, the National Labor Relations Board (“NLRB”) released a draft rule that would finally overturn the controversial 2015 Brown-Ferris decision which permitted a finding of joint-employer liability upon a showing of “indirect control” or the ability to control.

Last week, U.S. House of Representatives unveiled a bill that would allow franchisors to license their trademarks to a franchisee without creating joint employer status. Under the Trademark Licensing Protection Act, “brand controls,” such as uniforms, food and cleanliness standards and other standards to ensure uniformity amongst franchisees of particularly, will not constitute or be evidence of joint employer status in federal or state employment litigation.

This month, the U.S. District Court for the Central District of California entered a consent judgement ordering Fisher Ranch LLC, Fisher Ranch Corporation, Del Rio Harvest, Inc., and Dana Bart Fisher, Jr. to pay $21,168.00 in back wages and $49,104.00 in civil money penalties for violations of the Migrant Seasonal Workers Protection Act (“MSPA”) because Defendants  “failed to ensure that its farm labor contractor, Healthy Harvesting, provided safe transportation to and from the fields for workers.”  Defendants were also permanently enjoined from violating MSPA, including reviewing each Farm Labor Contractor (“FLC”) certificate before entering a contract with that FLC, or use or cause to be used vehicles for the transport of agricultural workers that do not conform to MSPA’s vehicle safety standards. The press release is available here.

On Wednesday, the California State Senate passed Assembly Bill 3080 (“AB 3080” or the “bill”) which would prohibit employees from being forced to sign arbitration and/or non-disclosure agreements as a condition of employment under the California Labor Code and California’s Fair Employment and Housing Act (“FEHA”) which is the state agency responsible for, among other things, enacting discrimination protections in employment.

Under current law, California employers may insist that employees enter valid agreements to resolve disputes in front of a neutral arbitrator instead of a judge and jury and may even make the agreement a condition of employment. AB 3080 proposes that employers cannot retaliate against employees and job applicants who choose not to waive their right to pursue claims under either FEHA or the California Labor Code in any particular forum. The bill goes even further and would amend FEHA to authorize discrimination lawsuits against employers that require arbitration agreements

UPDATE: Appeals Court Overturns Lower Court, Says Florida Citrus Company is NOT A Joint Employer with Farm Labor Contractor

By: Gregory Blueford

Yesterday, the Eleventh Circuit Court of Appeals reversed a federal trial court decision that a Florida citrus grower was a joint employer for the purposes of its hired farm labor contractor’s H-2A employees’ (“Plaintiffs”) common law breach of contract claim only.

As reported here, last year, a federal trial court ruled that Consolidated Citrus LP (“Consolidated Citrus”) was a joint employer of its hired farm labor contractor’s, Ruiz Harvesting, Inc.’s (“RHI”) H-2A employees because Consolidated Citrus extensively controlled the manner and means by which the harvesters accomplished their work. As a brief refresher, Consolidated Citrus would, amongst other things, direct RHI on how much fruit should be harvested from a particular grove when the fruit was ready (as determined solely by Consolidated Citrus), issue ID badges to all RHI harvesters for the harvesters to clock in and out of a time-tracking device owned and operated by Consolidated Citrus, mandate that employees be paid by direct deposit, and conduct random audits of RHI’s recordkeeping. Plaintiffs sued both Consolidated Citrus and RHI for unpaid wages under the Migrant and Seasonal Agricultural Protection Act (“MSPA”), Fair Labor Standards Act (“FLSA”), common law breach of contract, and state violations of minimum wage law. RHI was later dismissed after settling their claims separately with Plaintiffs.

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