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Employment Archives

Class Action Waivers in Employment Arbitration Agreements are Enforceable

Today, the United States Supreme Court finally resolved the split of authority among federal circuit courts as to the enforceability of class action waivers in employment arbitration agreements. In issuing its much anticipated opinion in NLRB v. Murphy Oil Co., Ernst & Young LLP v. Morris and Epic Systems Corp. v. Lewis, the Supreme Court held that class action waivers in employment arbitration agreements do NOT violate the National Labor Relations Act and are therefore enforceable. This is good news for employers everywhere and a prime opportunity to consider updating employment arbitration agreements to include class action waivers.

Factoring a Flat Sum Bonus Into An Employee's Overtime Pay Rate

Under California law, an employer is obligated to pay an overtime premium for work in excess of eight hours in a day, 40 hours in a weeks, or for any work at all on a seventh consecutive day. See Alvarado v. Dart Container Corp. of California, 4 Cal.5th 542, 553 (2018), as modified at 2018 Cal. LEXIS 2979 (April 25, 2009). Such work must be compensated at 1.5 times the employee's "regular rate of pay," or, if the employee works in excess of 12 hours in a day or in excess of eight hours on a seventh consecutive working day, at two times the employee's regular rate of pay. Id.

Employers Beware -Post-Dynamex, the Classification of Workers as Independent Contractors Will be Met With Greater Scrutiny

On April 30, 2018, the California Supreme Court issued its opinion in Dynamex Operations West, Inc. v. Superior Court (2018 Cal. LEXIS 3152) wherein it decided what standard applies, under California law, to determine whether workers should be classified as employees or as independent contractors for purposes of California wage orders (which impose obligations relating to, among other things, minimum wages, maximum hours and required meal and rest breaks). In holding that the wage order's definition of "employ" must be used to determine independent contractor versus employee status ("employ," meaning "(a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship"), the Court explained what it means to "suffer or permit" an individual to work: 

DOL Issues First Opinion Letters in Nearly a Decade - FLSA2018-19

For the first time in nearly a decade, the Wage and Hour Division of the U.S. Department of Labor issued several Opinion Letters, including one addressing the compensability of fifteen minute rest breaks required every hour due to a non-exempt employee's serious health condition under the Family and Medical Leave Act ("FMLA").

An Employee's Prior Salary Cannot Justify a Wage Differential Between Male and Female Employees

In Rizo v. Yovino, 2018 U.S. App. LEXIS 8882 (April 9, 2018), the en banc court held that "prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise - to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum - would be contrary to the text and history of the Equal Pay Act and would vitiate the very purpose for which the Act stands."

Employer Alert: SB 396 Expands Harassment Training Requirements

The Fair Employment and Housing Act ("FEHA") currently requires that employers with 50 or more employees provide sexual harassment training to all supervisory employees. This training must first take place within six months of promotion/hire to the supervisory position and must thereafter occur at least once every two years. Effective January 1, 2018, FEHA requires that such training also include training on harassment based on gender identity, gender expression, and sexual orientation.

An Exception to the Exception - The Special Errand Rule

In Morales-Simental v. Genentech, Inc., 2017 Cal. App. LEXIS 915, Plaintiffs and appellants Morales-Simental, et al. appealed from a summary judgment granted in favor of defendant and respondent Genentech, Inc.  Plaintiffs alleged they suffered injuries and sustained damages as a result of the negligence of Vincent Inte Ong, an employee of Genentech Inc., during a vehicle collision.  The issue was whether or not Ong was acting within the scope of his employment at the time of the collision.  The court looked to the doctrine of respondeat superior. 

Employees May Recover Penalties for Inadvertent Wage Statement Errors Without Any Showing of "Injury"

California Labor Code § 226(a) requires employers to provide accurate, itemized wage statements that show, among other things, gross and net wages earned, total hours worked, all applicable hourly rates, total deductions, the dates of the pay period, and the employee's name and the last four digits of his Social Security number or an employee identification number. § 226(e) entitles an employee bringing suit in his or her individual capacity to recover penalties of up to $4,000, plus attorney's fees and costs if he or she establishes that an employer "knowingly and intentionally" failed to comply with § 226(a) and that he or she suffered "injury" as a result.

California Fair Pay Act Seeks to Expand and Strengthen California Equal Pay Act of 1949

The California Equal Pay Act of 1949 was enacted to eliminate gender discrimination in the workplace by providing "equal pay for equal work." As of January 1, 2016 the California Fair Play Act amended the EPA taking an even more aggressive approach. The amendment now provides for equal pay for "substantially similar work" regardless of work title or work location. Though "substantially similar work" was not defined in the Act, the California Department of Industrial Relations indicated on their website that it means "work that is similar in skill, effort, responsibility, and performed under the same working conditions."

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