Labor Law in Place to Help Employees Beat the Heat

A newly amended California labor code provision turns up the heat on employers in order to protect employees from the heat. Amendments allow private enforcement of laws regarding heat-illness prevention. Previously, they were imposed only by the California Occupational Safety and Health Administration (OSHA) with limited resources.

With the new provision, California employers must be even more fastidious about guarding their employees from the sun’s heat. To do so they must provide employees with cool down periods or they might end up facing litigation en masse. Any employer who has an outdoor space at their place of employment will find it vital to have a heat-illness prevention program set in motion so that employees are both allowed and encouraged to rest out of the heat for at least 5 minutes whenever they feel in danger of overheating. 

Employers may feel put out by the rules. They are required to provide shade for employees who work in the sun (especially during sunny days). This can sometimes be difficult. Necessary cool-down periods any particular employee might need are unknown and cannot be scheduled ahead of time. So employers may find regulating employee behavior to ensure they are meeting the standards for heat-illness prevention difficult. It is recommended that California employers review the policies they have in place and that they offer renewed training for managers who will be responsible for compliance and the maintenance of their compliance records.

If you have questions regarding the regulations your California employer may be required to adhere to, contact Blumenthal, Nordrehaug & Bhowmik, your southern California employment law experts. 

Ruling of California Supreme Court: Federal Aviation Authorization Act Does Not Preempt California Meal and Rest Break Claims

A recent decision by the California Supreme Court will affect truck drivers throughout California. The finding that the Federal Aviation Authorization Act does not preempt California meal and rest break claims means that any truck driver in or through California is entitled to take a thirty (30) minute uninterrupted meal period prior to their fifth (5^th) hour of work. Drivers are entitled to this benefit regardless of the crossing of state lines during their route or the payment of overtime to the driver.

The issue originated with a meal break class action lawsuit filed against Penske Logistics that Penske won at the district court level. The panel of judges held that the meal and rest break laws in California are unrelated to Penske’s “prices, routes or services” and would therefore not be preempted by the Federal Aviation Administration Authorization Act of 1994. The appeals court also stated that it was never intended to preempt general state transportation safety, etc.

The meal and rest break law will add costs for motor carriers and motor carriers being affected are, of course, disappointed with the decision. The court defended their ruling stating that the law does not “set prices, mandate or prohibit certain routes, or tell motor carriers what services they may or may not provide, either directly or indirectly.”

The decision is excellent news for truck drivers on California roads.

For more information on California meal and rest break laws, contact your Southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

California Law Protecting Whistleblowers Lacking Work Authorization from Retaliation

California Governor Jerry Brown recently signed Assembly Bill No. 2751 into being. The Bill amends a recently enacted law prohibiting employers from retaliating against undocumented workers who engage in protected activity. The amendment is in reference to Assembly Bill No. 263, which restricted employers’ ability to put disciplinary action in place for employees who misrepresented their personal information (criminal history, immigration status, etc.)

The new law makes it illegal under California law for employers to retaliate by targeting immigration status when employees lacking work authorization are exercising a protected right such as filing a complaint for unpaid wages. The new law would prohibit employers from responding to whistleblowers lacking proper work authorization with threats to contact immigration authorities, discharging the employee, etc. California law now prohibits this type of action unless employee updates to personal information are directly related to the skill set, qualifications, or knowledge necessary for their job. The original bill’s intended purpose was to protect employees who are updating their work-authorization status, but it can be read to include protection for those wishing to update other information based on prior misrepresentations like criminal history. The amendment (AB 2751) clarifies the scope of the bill (AB 263) so that it specifically protects those employees who are attempting to update personal information in relation to name, social security number or federal employment authorization documentation. The amendment’s clarification allows employers to discipline/terminate employees who provides false statements not related to immigrate status, but continues to prohibit retaliation or disciplinary action against any workers who update records on lawful changes to immigration related information and documentation.

If you are unsure whether or not the new California law applies to your situation, you should contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik immediately for legal advice regarding your specific situation. 

Commission Wage Allocation Limited by California Supreme Court Ruling

The California Supreme Court ruling on June 14, 2014, limited commission wage allocation by holding that employers could not satisfy the California compensation requirements for commission sales exemptions by assigning commission wages paid in one pay period to alternate pay periods. The decision could have a notable impact on employers who regularly pay their employees on a commission basis. It could have a particularly significant impact on those who pay commission sales employees a base salary that falls near the minimum wage requirement.

California’s commissioned employee exemption requires (among other things) employee’s earnings to exceed one and a half times minimum wage. It also requires that more than half of the employee’s compensation be commissions.

In Peabody v. Time Warner Cable, Inc. Case No. S204804, the employer (Time Warner) argued that their former account executive wasn’t entitled to overtime pay due to the fact that she was a “commissioned employee” and was therefore exempt. As noted above, there are limitations as to which employees can fall under the commissioned employee exemption. In the case of Time Warner, Peabody was paid an hourly wage of $9.61. This did not fulfill the one and half times minimum wage minimum pay requirement. The wages were paid every other week. Total compensation of the plaintiff did exceed the minimum one and a half times minimum wage requirement when the hourly was combined with the commissions paid to the employee. Commissions were paid only once/month. The commissions paid were earned throughout the previous month.

Due to the pay structure set up by Time Warner, the employee’s compensation fell short of the one and a half times minimum wage requirement during some pay periods. It is also notable that there was no dispute regarding the fact that the employee worked 45 hours per week and was not paid any overtime. In an attempt to meet requirements set down in the commission employee exemption, Time Warner suggested that employee commissions should be reallocated to be paid during earlier pay periods (in which they were earned) rather than the bi-weekly pay periods that were in place. They felt that satisfying the exemption’s minimum wage earnings requirement in this manner should free them from the obligation to pay commission employees overtime. The California Supreme Court rejected their argument. It was concluded that the Time Warner’s attribution of commission wages to meet minimum requirements was impermissible.

If you need to discuss implications of the recent ruling and how it could affect you as a commission employee, contact Blumenthal, Nordrehaug & Bhowmik, the Southern California employment law experts. 

Landmark Iskanian Decision’s Effect on Private Attorneys General Act (PAGA) Claims

Attorneys are predicting an uptick in PAGA claims that open up California employers to greater financial exposure as a result of the California Supreme Court’s landmark Iskanian decision. The decision strengthened the enforceability of class waivers in arbitration agreements, but also held that PAGA (Private Attorneys General Act) claims can’t be waived in employment arbitration deals.

The decision allows employees to sue on behalf of other workers to recover California Labor Code violation penalties. The issue of whether PAGA and other claims will be decided in a single forum or separately via bifurcation with individual claims going to arbitration and the PAGA claim to litigation has been remanded by the Court. If bifurcated, the lower court could decide to stay one of the matters. Employers would be likely to push for arbitration of individual claims to proceed first in bifurcated matters since the arbitrator’s findings could make a difference in whether or not plaintiffs were able to proceed with PAGA claims in the court system. The argument that employers could present to obtain their end would be that arbitration going first would be more quick and efficient and that putting the individual claims on hold while the PAGA claim is determined isn’t the best use of the courts’ or involved parties’ resources and time. Courts who are overseeing bifurcated cases could potentially choose not to stay the arbitration or litigation. Individual actions are not necessarily dispositive of the issues in the PAGA action – this is something to consider as the potential differences between the individual pursuing a claim in arbitration and the end result the class as a whole is pursuing in court could be notable.

If you have questions on California employment law and how recent landmark decisions could affect your workplace situation, please contact the experts at Blumenthal, Nordrehaug & Bhowmik immediately. 

Preliminary Approval on Uncapped Settlement of Another NFL Concussion Lawsuit

U.S. District Court Judge Anita B. Brody rejected the previous $765 million concussion settlement between the NFL and former players with head trauma who were suing the league, but she offered preliminary approval of the more recent settlement produced saying the NFL would uncap the payments to former players suffering debilitating systems. The first settlement was thrown out because Judge Brody felt that the $765 million would be insufficient to cover the lifetime of the 65 year settlement. Her preliminary approval of the new settlement left the former players another step closer to receiving payment from the NFL. 

The plaintiffs are pleased with the preliminary approval and state that the settlement for retired NFL players and their families is extraordinary. It would apply to those suffering from neuro-cognitive illnesses today to any who suffered head injury without current signs of major damage, but who fear serious symptoms could develop in the future. The settlement would provide guaranteed benefits and long-term security. They look forward to finalizing the agreement.

The NFL’s response was to offer gratitude to Judge Brody for her guidance and thoughtful approach to the serious issues being addressed. They state that they will work with the plaintiffs’ counsel in order to implement the terms of the settlement as per the Court’s final decision.

According to the terms outlined for the compensation program, funds would be established and retired players would qualify to use the funds if they were to develop a qualifying neurocognitive condition. The plaintiffs now have 90 days to opt out or challenge the settlement. At that point in time Brody will be able to give her final approval of the settlement agreement.

For additional information or to ask questions regarding employment law please contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

California Labor Law Update: Changes in Sexual Harassment Protection

New employment laws or amendments to existing laws are passed by the California legislature every year. The changes can directly impact the relationship between an employer and their employees as well as how they run their business. 2014 saw dozens of new labor laws go into effect.  

One important change that occurred in 2014 was a result of an amendment to Government Code 12940. It clarifies the definition of sexual harassment in the workplace. After a 2013 appellate decision, there was a question as to whether or not there needed to be sexual desire on the part of the perpetrator in order to establish a legitimate sexual harassment claim. Bill 292 addressed this issue.

The California legislature passed Senate Bill 292 in 2013 and we saw it go into effect on January 1, 2014. This amendment to the previous employment law defining sexual harassment in the workplace in California redefines the issue: sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. It was reasoned that sexual harassment (like other forms of harassment) isn’t necessarily motivated by desire. In fact, harassment of all types is more often motivated by hostility. The passing of this bill addressed the confusion in the California courts regarding whether or not a sexual harassment claim can be established without a basis of desire. Senate Bill 292 clarifies what the California courts have been recognizing for years: that sexual motive or desire isn’t necessary in order to establish a sexual harassment claim and bring action against an employer. 

If you or someone you know has questions about what constitutes a sexual harassment claim or if you feel you work in a hostile work environment get in touch with the employment law experts at Blumenthal, Nordrehaug & Bhowmik.