E-Blasts

On October 10, 2019, Governor Gavin Newsom signed a law increasing the time employees/former employees have to file claims with the California Department of Fair Employment and Housing (the “DFEH”) from 1 year to 3 years. (Former Governor Jerry Brown vetoed a similar bill last year saying the proposed change in the law would unnecessarily drag out the process of resolving issues in the workplace.)  Prior to the enactment of AB 9, employees/former employees had 1 year from the date of an alleged unlawful act to file a claim with the DFEH for purported violations of the California Government Code.  The employees/former employees then had an additional 1 year from the DFEH’s issuance of a “Right to Sue” letter to pursue a civil lawsuit.  While AB 9 does not change the time period for bringing a court action after a “Right to Sue” letter has been received, it does give employees/former employees an additional 2 years to initiate the administrative complaint process.  As a result, employers can now be forced to defend against civil claims for discrimination, harassment, and retaliation that are not filed until 4 (or sometimes more) years after the alleged unlawful activity took place.  While the change in the law will not revive claims that are already time barred, it will impact claims based on purported events which took place within the 12 month period prior to the effective date of the new law.  The California Chamber of Commerce previously included AB 9 on its list of “job killer” bills that will likely deter business in California and increase litigation and related costs for employers.

SB 707 passed into law this week and employers will need to check the calendar carefully or risk being fined or unable to enforce their binding arbitration agreements. Employers are responsible for paying certain fees unique to arbitration. SB 707 provides that an employer who, at the start of an arbitration, fails to pay certain initiation fees within 30 days after the due date, or fails to pay required fees and cost during the arbitration will: 1) be in material breach of the arbitration agreement, 2) be in default of the arbitration, and 3) waive its right to compel arbitration. In response, an employee otherwise subject to arbitration will have the following options: 1) withdraw from arbitration and proceed with his or her claims in an appropriate court, or 2) continue with the arbitration and require the employer to pay for reasonable attorneys’ fees and costs for the arbitration.  If the employee opts to proceed in court, rather than remain in arbitration, then the time spent in arbitration will not affect the statute of limitations on the employee’s underlying claims.  

    Going into the weekend, the Governor’s desk is stacked with bills, bills, bills. Employers have seen some important victories this week but not all bills passed and presented to the Governor for signature have been favorable and employers are (money) smart to revisit our E-Blast postings again next week for more updates.

Bills Stacked for Review

 By: Adrian Hoppes

Governor Newsom has until Sunday October 13, 2019 to take action on several pending bills on his desk. Below are just a few that ideally will be vetoed:

  • AB 589: Creates new requirements for employers to provide a Worker’s Bill of Rights document, in relation to passports or other immigration documents, to all employees, have them sign it, provide a copy of the signed document to the employee, and post the document.
  • AB 1478: Rather than requiring employees to first file a complaint with the Labor Commissioner, this bill would allow employees to immediately file a lawsuit involving claims by employees who take time off for jury duty and for legal proceedings relating to domestic violence and other crimes.
  • SB 142: Amends current law significantly regarding lactation accommodations and would deem denial or inability to provide a lactation break or appropriate lactation space the same as a failure to provide a rest period and a $100 civil penalty per violation. A similar bill was vetoed in 2018.

Bills Stamped with Approval

By: Mark Kruthers and Manuel Ignacio

  • SB 688: Empowers the Labor Commissioner to cite an employer who pays a wage that is less than the amount set by contract, even if that amount is higher than the legal minimum wage, and to recover the underpaid amount owed to the employee. Employers are encouraged to contact the experts at Dowling Aaron Incorporated for wage and hour compliance questions.
  • AB 9: Extends the filing period for claims with the California Department of Fair Employment and Housing (the “DFEH”) from the current 1 year deadline to 3 years following the alleged unlawful conduct. While the change in the law will not revive claims that are already time barred, employers now face the daunting future to defend against civil claims for discrimination, harassment, and retaliation that are not filed until years after the alleged unlawful activity took place. Employers are encouraged to revisit their document retention policies.

Bills Sent to the Shredder

  • SB 1: This bill would have rolled-back negotiated progress in the areas of California’s water supply and wildlife management.

Another Employer-friendly Nod from Trump

By: Adrian Hoppes

President Trump tapped Eugene Scalia, son of the late U.S. Supreme Court Justice Antonin Scalia, to fill the Labor Secretary vacancy at the Department of Labor (“DOL”) created when Alex Acosta stepped down this past July. Scalia is a long time management-side employment attorney. If Scalia is confirmed, he will bring with him years of expertise in challenging several administrative regulations, including at the DOL. Scalia has worked in the trenches on a large number of labor issues for years and brings a significant level of understanding on how to enact President Trump’s agenda. Scalia faced many tough questions on Thursday September 19th during his hearing before the U.S. Senate Health, Education, Labor, and Pension Committee but overall, his performance did not suggest that there will be a road block from sending his nomination to the Republican-controlled Senate.

ICE May be Tipping Us Off to The Next Round of Immigration Raids in California

By Rebecca Schach

Just yesterday, U.S. Immigration and Customs Enforcement (ICE) Acting Director Matthew Albence held a White House press briefing to explain how sanctuary policies threaten public safety. Acting Director Albence made his position clear – local jurisdictions across the U.S. that refuse to cooperate with ICE are complicit in the crimes committed by noncitizens who ICE could have arrested and deported with the assistance of local law enforcement. Acting Director Albence called on the public directly saying, “To the public…we ask you to hold your lawmakers accountable before you, or someone you love, is unnecessarily victimized by a criminal ICE could have removed from the country.” Statistics this week reveal a shift on ICE activity to focus on enforcement of people in “uncooperative” jurisdictions including California.

Today, Governor Newsom signed AB 5 which limits employer’s use of independent contractors. In signing the bill, Newsom said that the law “will help reduce worker misclassification — workers being wrongly classified as ‘independent contractors’ rather than employees, which erodes basic worker protections like the minimum wage, paid sick days and health insurance benefits.” (LA Times article here.) You can read more about AB 5 in our previous e-blast, available here.

COUNSEL TO MANAGEMENT:

AB 5 has far reaching effects for California employers. If you have questions about how this law impacts your business, contact the experts at Dowling Aaron Incorporated to help you navigate this complex area of law.   

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