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  • On March 3, 2022, President Biden signed into law H.R.4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”). The Act provides, in relevant part, that:

    “Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

    What this means is that employers can no longer force employees who have been subjected to sexual harassment or sexual assault to submit their legal claims to arbitration. Employees can now choose to file their cases in court, regardless of the prior existence of an arbitration agreement. Nor can employers force employees to give up the right to file a class or collective action related to sexual harassment or sexual assault.

    The Act explicitly provides that it applies to any dispute or claim that arises or accrues on or after the date of enactment, meaning any harassment or sexual assault occurring on or after March 3, 2022. It does not apply to existing cases already in arbitration or ones where the sexual harassment or assault only occurred before March 3, 2022.

    The Act provides that any dispute regarding the applicability of the Act to an arbitration agreement must be decided by a court, not an arbitrator.

    We anticipate that more employment lawsuits will include claims for sexual harassment, and that courts will invalidate arbitration agreements in those cases.

    This law levels the playing field by giving people subjected to sexual harassment and sexual assault a fair shot at justice. Research has shown that consumers are more likely to be struck by lightning than to win a monetary award in arbitration. We hope it opens the door to further legislation prohibiting arbitration in all employment and consumer cases.

  • The Legislative Office Building in Sacramento

    With a Democratic supermajority in the California legislature and a Democratic governor (who survived a recall election), 2021 brings another slew of employment law bills that expand employee protections.

    DISCRIMINATION AND HARASSMENT

    SB 331 – “Silenced No More” Act – Non-Disclosure Agreements

    The most important bill from this legislative session is SB 331, also known as the Silenced No More Act. SB 331 expands the protections created in 2018 by the Stand Together Against Non-Disclosures (STAND) Act (SB-820) and omnibus sexual harassment bill SB 1300. Those bills targeted attempts by employers to silence employees who have been sexually harassed or subjected to discrimination or retaliation based on sex. SB 331 ensure that these same protections apply to all employees subjected to discrimination, harassment and retaliation. It expands protections to claims based on all protected categories covered by the Fair Employment and Housing Act (FEHA), including race, religion, disability, age, veteran status, etc.

    The STAND Act added Code of Civil Procedure Section 1001. Section 1001 prohibits confidentiality provisions in settlement agreements involving civil or administrative actions that state a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation.

    SB 331 amends C.C.P. § 1001 to expand the prohibition on non-disclosure agreements to encompass claims of discrimination, harassment, or retaliation based on any protected category covered by the FEHA (not just those based on sex). This expanded prohibition applies to agreements entered into on or after January 1, 2022. SB 331 clarifies that C.C.P. § 1001 prohibits provisions that prevent or restrict the disclosure of such information.

    SB 1300 had added Government Code § 12964.5, which made it unlawful for an employer, in exchange for a raise or bonus, or as a condition of employment or continuing employment, to: (1) require employees to sign a release of claim or right under the FEHA, or (2) to require employees to sign a nondisparagement agreement that gags employees from disclosing information about sexual harassment and other unlawful acts.

    SB 331 amends Government Code § 12964.5 as follows:

  • After years of advocacy to raise the minimum wage, all California workers can look forward to a $15 an hour minimum wage by January 1, 2023.

    While the federal minimum wage of $7.25 per hour has not changed in over a decade, states, counties, and cities all have the ability to set a minimum wage. Below, we summarize the minimum wages set by the State of California, Los Angeles City and County, and other cities within Los Angeles County. Employees are entitled to the highest applicable minimum wage.

    State of California

    California State Minimum Wage
    Effective Date Large Employers (26+ Employees) Small Employers (≤25 Employees)
    1/1/2022 $15 per hour $14 per hour
    1/1/2023 $15 per hour $15 per hour

    The State minimum wage will rise $1 per hour on January 1 of each year until it reaches $15 per hour for both small and large employers in 2023. Further details (including regarding the rare exceptions) can be found on the Labor Commissioner’s website.

    City of Los Angeles and Unincorporated Areas of Los Angeles County

    Los Angeles City and County Minimum Wage Rates
    Locality Minimum Wage (As of July 1, 2022)
    Unincorporated Los Angeles County $15.96 per hour
    Los Angeles City $16.04 per hour
    Pasadena $16.11 per hour
    Santa Monica $15.96 per hour ($18.17 for hotels)
    West Hollywood $16.50 per hour for large businesses, $16.00 per hour for small businesses, $18.35 per hour for hotel employers
    Malibu $15.96 per hour
    Long Beach $15 per hour for large employers, $14 per hour for small employers, different rates for hotel and concessionaire workers
    Cities Without Specified Minimum Wage Track State minimum wage
  • The Legislative Office Building in Sacramento

    2020 has turned out to be another bumper year for employment legislation. The pandemic provided the impetus for the California legislature to expand family and medical leave to employees at smaller companies, fill in gaps with respect to supplemental paid sick leave, and enact a number of measures aimed at keeping employees safer at work. The California legislature also provided greater whistleblower protections, expanded employer reporting obligations, clarified the law with respect to employee misclassification, and expanded the Labor Commissioner’s powers. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.

  • Little girl visits her father in the hospital

    UPDATE: On March 19, 2021, SB 95 was signed into law, which provided COVID-19 supplemental paid sick leave (SPSL) for certain covered employees who were unable to work due to COVID-19, including due to quarantine requirements. SB 95 was applied retroactively to January 1, 2021 and was in place until September 30, 2021.

    Last week, on September 9, Governor Newsom signed AB-1867 into law. AB-1867, effective immediately, makes sure that all California employees are eligible for COVID-19-related supplemental paid sick leave (“SPSL”) by filling in the gaps lefts by the federal Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides for 2 weeks of COVID-19-related paid sick leave for eligible employees. However, it only applies to employers with fewer than 500 employees. It further allows employers of certain health care providers or emergency responders to elect to exempt them from FFCRA protections. In fact, it is estimated that the FFCRA leaves out up to 80% of the workforce.

  • podium

    On September 25, 2020, Ramit Mizrahi will be speaking about recent California employment law legislation at the California Lawyers Association’s 2020 Virtual Annual Meeting.

    Here are the details:

    California Employment Law Legislative Update

    Description: From a sea change in the legality of contract labor requirements to special issues around remote working and the need for workplace safety in the COVID-19 pandemic, 2020 has shaped up to be an exciting year for employment law. Our panelists will provide employee and management-side perspectives on the newly passed California employment laws and other developments, and the impact they will have on workplaces, including an update on the ever-changing landscape of AB-5 changes to contract labor requirements.

  • son and father enjoying family leave
    Update: Governor Newsom signed SB-1383 into law on September 17, 2020.

    On August 31, 2020, two minutes before the end of the 2019–2020 legislative session, the California Legislature passed Senate Bill 1383. SB 1383, if signed into law by Governor Gavin Newsom, will be a game-changer for the millions of California workers working for small employers who will become eligible for job-protected family and medical leave under the California Family Rights Act (“CFRA”).

    SB 1383 does two main things:

    1. It expands CFRA coverage to all employers with five or more employees, down from 50.
    2. It allows CFRA leave to be used to provide care for grandparents, grandchildren, siblings, domestic partners, adult children, and children of domestic partners.

    We expect that Governor Gavin Newsom will sign the bill into law given his commitment to expanding paid family leave.

    This blog post discusses the changes to the CFRA created by SB 1383.

  • The Legislative Office Building in Sacramento

    2019 has turned out to be a bumper year for employment legislation. The continued influence of the #MeToo movement can be seen in the number of bills meant to protect employees who have suffered harassment, discrimination, and retaliation. The California Legislature also targeted arbitration abuse, worker misclassification, and other wage and hour law violations. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.

    1.         Bills Signed Into Law

    AB 5 — Dynamex codification; independent contractors

    • Codifies the Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 “ABC” test to determine whether a worker is an independent contractor or employee, with specified statutory exemptions. Under this test, an employer seeking to classify a worker as an independent contractor bears the burden of establishing:

      (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity’s business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business. . . .

    • Applicable retroactively to all claims under Labor Code related to Wage Orders; prospectively to all other Labor Code claims. Applicable prospectively with respect to unemployment insurance.
    • Contains numerous statutory exemptions, which apply retroactively. In these circumstances, apply the test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.
    • Prohibits employees from reclassifying existing employees as independent contractors.

    More on AB 5 can be found in this blog post.

    AB 9 — Increases Time to File Employment Discrimination Claim

    • Gives employees more time to bring employment discrimination claims (including harassment and retaliation claims) by extending the deadline to file a verified complaint with DFEH for employment discrimination claims from one to three years.
    • Date of verified complaint relates back to filing of intake form with the DFEH.

    More on AB 9 can be found in this blog post.

  • hands signing an employment agreement

    Update 9/15/21: On September 15, 2021, in Chamber of Commerce of the U.S., et al. v. Bonta, et al., No. 20-15291, 13 F.4th 766 (9th Cir. Sept. 15, 2021), the Ninth Circuit issued a ruling upholding most of AB 51. On October 20, 2021, the U.S. Chamber of Commerce filed a petition with the Ninth Circuit requesting a rehearing en banc, seeking to reverse this decision. That petition is currently pending before the court.

    Update 1/7/2020: A federal district court has issued a temporary restraining order blocking enforcement of AB 51. A hearing is set in the case for January 10, 2020.

    Update 10/10/2019: Governor Newsom signed AB 51 into law today.

    The California Legislature is trying for a third time to protect workers from being forced to sign arbitration agreements. It passed Assembly Bill 51 (“AB 51”), which, if it becomes law, will: (1) prohibit employers from conditioning employment, continued employment, or any employment-related benefit on the applicant or employee waiving rights under the Fair Employment and Housing Act (“FEHA”) or the Labor Code, including the right to proceed in civil court; (2) prohibit employers from retaliating against an applicant or employee for refusing to waive employment-related rights; and (3) deem violations of these provisions as “unlawful employment practices” under the FEHA.

    AB 51 follows in the footsteps of two nearly identical bills that then Governor Jerry Brown vetoed in 2015 and 2018. In his September 2018 veto message for Assembly Bill 3080 (“AB 3080”), Governor Brown expressed his belief that the bill ran afoul of U.S. Supreme Court precedent and “plainly violate[d] federal law.” He believed that California was preempted from interfering with the formation of arbitration agreements.

    Proponents of the bill disagree with Governor Brown’s analysis and argue that AB 51 will survive judicial scrutiny. As reflected in AB 51’s bill analysis, they argue that it “simply gives the worker the option of whether or not to form the contract in first place,” and “nothing in AB 51 selectively calls out arbitration contracts . . . .”[1] They further contend that “[a]ll the bill does is say that an employee cannot be forced to sign an arbitration agreement, and if the employee elects not to, the employee cannot be retaliated against.”[2]

  • hands signing an employment agreement

    Over the past two years, we have followed the many bills that the California legislature has passed with the momentum of the #MeToo and #TimesUp movements.  From last year’s omnibus sexual harassment bill (SB 1300), to the prohibition of confidentiality provisions in settlement agreements involving sexual harassment claims (SB 820), to the increase in time that employees would have to file claims under the Fair Employment and Housing Act (AB 9), these bills have been designed to increase protections for California workers.

    Assembly Bill 749 (“AB 749”), introduced by Assemblymembers Mark Stone, Lorena Gonzalez, and Eloise Reyes, is another #MeToo-inspired bill meant to protect employees. It tackles “no rehire” provisions that are frequently found in settlement agreements. Employees who settle their claims against their employers are often required to agree that they will never again work for the same employer or its related entities. Such provisions are punitive and can have a devastating impact on an employee, forcing some to leave their field or severely limiting their future employment prospects. The use of “no rehire” provisions often leads to the perverse outcome where victimized employees are forced out of their jobs while harassers continue to be employed.[1]

    AB 749, signed into law by Governor Newsom on October 12, 2019, prohibits and invalidates all provisions in settlement agreements that prevent workers from obtaining future employment with the settling employer or its affiliated companies. Through newly created Code of Civil Procedure section 1002.5, it makes such provisions in agreements entered into on or after January 1, 2020 void as a matter of law and against public policy. The bill is co-sponsored by the California Employment Lawyers Association and Equal Rights Advocates.

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