Employment

Pay Equality: Are we “crazy” for striving to bridge the pay gap?

Author: Pamela Palpallatoc

Guest Editor: Brittany Torrence

March 11, 2019 1:31pm

Or are we “steely” for remaining composed while waiting for the gap to close on its own?

What is the current status of the pay gap?
The 2018 data compiled to calculate pay inequality showed that women earn 80 cents for every $1.00 paid to Caucasian males.  Latina/Hispanic women earn 54 cents per $1.00, Native American women earn 57 cents per $1.00, African American women earn 63 cents per $1.00, Caucasian women earn 79 cents per $1.00, and Asian American women earn 85 cents per $1.00. Click to read more.

“On-call” Shifts and Policies May Trigger Wage Order 7 Applicability

Author: Michaela Jester

Guest Editor: Brittany Torrence

March 11, 2019 12:33pm

California retailers may benefit from reviewing on-call policies to ensure compliance with a recent appellate interpretation regarding the applicability of Wage Order 7. On February 5, 2019, California’s Second Appellate District revived a proposed wage class action against Tilly’s Inc. by holding the company’s requirement of employees to call in before starting a shift, for the purpose of finding out if they are required to work the shift, triggers California’s requirement workers receive “reporting time pay” pursuant to Wage Order 7.

Two Recent Cases Further Divide California Federal and State Courts on Whether PAGA Claims are Arbitrable

Author: Orlando Arellano

Guest Editor: Brittany Torrence

March 11, 2019 12:09pm

The California Attorneys General Act of 2004, Labor Code section 2698 et seq., often referred to as the “PAGA” is a fairly unique statute. The PAGA statute allows a private party to be “deputized” as a “private attorney general” for purposes of collecting civil penalties for certain enumerated Labor Code violations. Of course, this is in addition to a private party’s right to collect his or her alleged unpaid wages, and other “damages” he or she may recover, such as statutory penalties, attorneys’ fees, and costs.  PAGA penalties are generally $100 for the first violation and $200 for each subsequent violation, per pay period, and per employee. Accordingly, the PAGA adds significant salt to the wounds of employers faced with seemingly unending lawsuits by former employees.

U.S. Supreme Court Confirms Employers Cannot Compel Arbitration for Transportation Workers

Author: David Kahn

Guest Editor: Brittany Torrence

March 11, 2019 12:07pm

In a unanimous decision, New Prime, Inc. v. Oliveira (2019) 139 S. Ct. 532, the U.S. Supreme Court resolved a nationwide dispute amongst the federal circuits regarding the enforceability of mandatory arbitration agreements in employment contracts for transportation workers classified as independent contractors.  In a unanimous opinion delivered by Judge Gorsuch, the Supreme Court held it is for the court to determine threshold issues of arbitrability notwithstanding any contractual provision delegating such questions to the arbitrator. The Court further held employment contracts for transportation workers who are classified as “independent contractors” are excluded from the Federal Arbitration Act’s (“FAA”) coverage.

The G4S Secure Solutions Settlement

Author: Rachel Donnelly

Guest Editor: Brittany Torrence

March 11, 2019 12:03pm

On January 22, 2019, G4S Secure Solutions (previously known as Wackenhut Corporation) agreed to resolve a consolidated meal and rest period class action for at least $100 million and up to $130 million. This settlement is aimed to resolve the claims of 13,500 employees and ends fifteen years of litigation.

Second Appellate District of California Reinforces the Importance of the PAGA Letter and Rejects a Plaintiff’s Attempt to Get a Second Bite of the PAGA Apple

Author: Orlando Arellano

Guest Editor: Alla Policastro

December 17, 2018 9:00am

Let’s face it.  Some administrative procedure requirements in employment law are like locking a door with a Cheeto – pretty pointless.  For example, California employees wanting to sue their employers for harassment or discrimination pursuant to the Fair Employment and Housing Act (“FEHA”) must first obtain a “right to sue letter.”  Conveniently they can get one automatically by filing a complaint form with the Department of Fair Employment and Housing (“DFEH”).  There is no close scrutiny of the claims, or any scrutiny for that matter, before a right to sue letter is issued by the DFEH.

Is There Hope for PAGA Relief After All?

Author: Kyle R. Maland

Guest Editor: Alla Policastro

December 17, 2018 9:00am

California Governor Signs Bill Exempting Certain Construction Employers from PAGA Penalties

California’s Assembly Bill 1654 (“AB 1654”) provides a PAGA carve-out for unionized construction workers covered by an applicable collective bargaining agreement (“CBA”).  For Now, AB 1654 is limited to the unionized construction industry, which makes up a small section of California’ workforce.  However, its purpose in providing relief from PAGA may serve as a prequel to further relief from PAGA’s oppressive scope.

Six Sexual Harassment Laws Every California Employer Must Know in 2019

Author: Michaela Jester

Guest Editor: Alla Policastro

December 17, 2018 9:00am

The “Me Too” Movement’s Influence on Legislative Action

The “Me Too” movement burst onto the social awareness scene in late 2017. Encouraged to speak out to raise awareness of the prevalence of sexual assault and harassment, particularly in the workplace, many victims took to social media as their platform. Among the advocates unveiling their own experiences with sexual violence in the workplace were well-known male and female celebrities, athletes, and politicians, including Ellen DeGeneres, Gabby Douglas, Jennifer Lawrence, James Van Der Beek, and Elizabeth Warren. In response, lawmakers began taking remedial measures in an attempt to rectify past injustices and deter future occurrences. As California has provided the backdrop for many of these allegations, it is fitting that California enforce legislature to inhibit such occurrences.

Washington State Passes New Laws Removing Barriers for Employees Bringing Discrimination and Harassment Lawsuits

Author: Brittany Torrence

Guest Editor: Alla Policastro

December 17, 2018 9:00am

After countless years of victimization by the system set up to privately address discrimination and sexual harassment/assault in the workplace, new Washington State laws took effect in June, 2018 that specifically remove various barriers for employees trying to bring discrimination and harassment lawsuits against employers.  In reaction to and in tune with the #MeToo movement,[1] a movement empowering victim of sexual harassment and assault to speak up against their abusers, the motivation for these laws was to empower victims of discrimination and sexual harassment in the workplace, by ensuring they are heard, believed, and have an avenue for remediation.

As Work Habits Change, How Will Courts Interpret a “Benefit to the Employer” When Determining the Applicability of the “Vehicle Use” Exception”?

Author: Tara-Jane Flynn

Guest Editor: Alla Policastro

December 17, 2018 9:00am

In California, it is well established if an employee is within the course and scope of his employment at the time of an accident, vicarious liability extends to an employer.  However, CACI jury instruction 3725, known as the “vehicle use exception” or “the going and coming rule” states “an employee is not acting within the scope of employment while traveling to and from the workplace.”  This year, the Second Appellate Court for the State of California decided Newland v. County of Los Angeles and provided further insight on how this exception will be interpreted and applied.

In California, Potential Employers Can Be Liable Under Fair Employment and Housing Act (FEHA) for Misleading Pregnant Applicants Who Never Submit an Application

Author: Issa Mikel

Guest Editor: Tiffany Rouhi

September 10, 2018 9:00am

Can a potential employer be held liable under the California Fair Employment and Housing Act (FEHA), Government Code section 12900, et seq., for thwarting a pregnant woman from applying for a job by falsely telling her no position is available?  In the recent opinion in Abed, the California Court of Appeal, First District, held that it can. Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726.

California Reinforces State Law Prohibiting Restraints On The Ability To Work

Author: Po Waghalter

Guest Editor: Tiffany Rouhi

September 10, 2018 9:00am

In a recent Court ruling, California showed its continued support for workers. Specifically, the Court of Appeals reinforced California’s preference against any contract, which would restrain the ability to work, and clarified not only are non-compete clauses void, but other contracts of similar nature may also be void. Golden v. California Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir. 2015).

#MeToo Movement Inspires Privilege Designation for Sexual Harassment Claims. Just Do Not Be a Hater!

Author: Natasha K. Zaslove

Guest Editor: Tiffany Rouhi

September 10, 2018 9:00am

A new California law, which provides protection for sexual harassment complaints is coming to a workplace near you. The law, Assembly Bill 2770, goes into effect January 1, 2019, and creates a new category of privilege for complaints of sexual harassment, as well as communications by an employer regarding those complaints. In addition, the law carves out a privilege for answers to the question: “Would you rehire an employee?” This last type of communication includes statements in which a decision not to rehire is based on an employer’s determination a former employee was engaged in sexual harassment.

De Minimis Rule Rejected by California Supreme Court

Author: Regina Silva

Guest Editor: Tiffany Rouhi

September 10, 2018 9:00am

In a surprising decision for employers in the State of California, the California Supreme Court in Troester, held the de minimis doctrine, which was adopted under the Federal Fair Labor Standards Act (FLSA) did not apply to California employers. Troester v. Starbucks 2018 WL 3582702 (July 26, 2018.)

Disability Harassment in the Workplace Lands $500K Jury Verdict for Mimicking and Mocking an Employee’s Stutter

Author: Jeremy Freedman

Guest Editor: Natasha K. Zaslove

August 6, 2018 9:00am

In many workplace harassment cases, it is often difficult to gather evidence or produce witnesses to testify regarding instances of harassment for a number of reasons. Often, the harassing conduct may take place in private and is undocumented. Where the offending conduct is witnessed by others, social pressure and fear of retaliation for testifying against an employer exacerbate the challenges in obtaining evidence.  The difficulty in obtaining evidence can make it challenging for a plaintiff to prove the harassing conduct was “severe or pervasive.”  In upholding a $500,000 jury verdict, the Fourth District Court of Appeals (“Fourth DCA”) recently provided further guidance on what evidence is sufficient to constitute severe and pervasive and actionable harassing conduct.[i]

Retaliation, Sexual Harassment, and Discrimination, through Wordless Communication – The Emoji Dilemma

Author: Tiffany Rouhi

Guest Editor: Jessica Heppenstall

June 8, 2018 10:19am

Wordless communication through emojis has become increasingly popular since the widespread use of smartphones. Emojis are pictographs used to express emotion, gestures, and objects. A study conducted in 2015 by the emotional marketing platform, Emogi, found 92 percent of the online population used emojis[1]. The report found the number one reason individuals use emojis was to accurately express their thoughts and for others to easily understand them[2].

United States Supreme Court Rules that Class Action Waivers Contained in Arbitration Agreements are Enforceable

Author: Regina Silva

Guest Editor: Jessica Heppenstall

June 8, 2018 10:15am

To employers’ delight, and disappointment to class action plaintiff attorneys, the United States Supreme Court finally issued its decision on the hotly debated issue of whether or not a class action waiver contained in an Arbitration Agreement violates the National Labor Relations Act (NLRA). Short answer: it does not!

Dismissal with Prejudice May No Longer be a Proper Remedy for Misjoinder of Parties in Action Alleging Common Pattern of Employment Discrimination

Author: Reece Román

Guest Editor: Jessica Heppenstall

June 8, 2018 10:12am

When multiple employees sue an employer in a single lawsuit based on a common pattern of discrimination, employers have historically relied on misjoinder of parties as a defense on demurrer. The recent decision by the Fourth Appellate District, Division Two, in Rosa Jensen v. The Home Depot, Inc., et al., 2018 WL 2441175, may force employers to change their defense tactics, at least at the early pleading stage.

NOSHA Adopts The “Rule Of Access” Standard To Determine PPE Training Requirements

Author: Christopher Lund

December 1, 2017 4:55pm

Sierra Packaging & Converting, LLC v. OSHA, 133 Nev. Adv. Opn. 83 (Nov. 16, 2017)

The Nevada Supreme Court recently issued an opinion interpreting the language of a federal regulation which requires employers to provide personal protective equipment (PPE) to employees and training on how to use the PPE in certain workplace situations. The case came about due to an anonymous complaint sent into the Nevada Occupational Safety and Health Administration (NOSHA), in which the complainant stated Sierra Packaging & Converting, LLC (hereafter referred to as “Sierra”) was having employees work on top of warehouse racks without requiring fall protection PPE.

Susan Oliver Discusses How Employers Can Prevent Sexual Harassment

Author: Susan Oliver

KOGO News – November 17, 2017

Sexual assault and harassment accusations are continuing to make national headlines, and employers large and small are on edge. Will someone from their organization be accused next? How can they protect their employees against unwanted sexual advances, and themselves against any legal ramifications, should an accusation arise?

Worker Compensation Carrier’s Lien Subject to Reduction for Employer’s Comparative Fault

Author: Sitar Bhatt

September 29, 2017 1:24pm

An individual is injured on the job and accepts workers’ compensation benefits. After accepting the benefits, the worker cannot sue the employer, but may sue others responsible for the injuries. In the lawsuit involving the third parties, fault is apportioned to the employer. Since Arizona law grants the employer’s insurance carrier a lien against any recovery by the worker, can the worker obtain a judicial determination of whether the carrier’s lien should be reduced to account for the employer’s comparative fault?

Another Open Door for Lawsuits: Supreme Court Issues Plaintiff-Friendly Decision in Federal Employment Discrimination Case

Author: Cayce E. Lynch, Susan Oliver

June 16, 2016 5:04pm

The United States Supreme Court recently held the 45-day period from which a federal employee is required to contact the Equal Employment Opportunity counselor begins to run on the date of the employee’s resignation under a Title VII constructive discharge claim. This 7-1 procedural ruling in Green v. Brennan, 578 U.S. ___ (2016), is plaintiff-friendly and may allow more employees to file discrimination lawsuits.

Copyright © 2019 Tyson & Mendes LLP. All Rights Reserved. Website by Big Behavior.