The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” rule, which sets forth a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. Continue Reading
On August 31, 2017, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas issued an order granting a group of twenty-one states’ and fifty-five business associations’ motion for summary judgment in consolidated cases seeking declaratory and injunctive relief against a May 23, 2016 Department of Labor rule drastically increasing the minimum salary an employee must earn to qualify for the most common exemptions from the federal overtime laws. The rule was originally scheduled to go into effect on December 1, 2016 and would have increased the minimum salary an employee must earn to qualify for the administrative, executive or professional exemption from federal overtime requirements from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The rule also would have provided for automatic increases to the minimum salary level every three years. Judge Mazzant had issued a nationwide preliminary injunction on November 22, 2016 delaying implementation of the Department of Labor’s new minimum salary rule, finding that it was likely unlawful and would cause irreparable harm to the plaintiff states and business groups. Judge Mazzant’s August 31, 2017 order confirms the findings in the November 22, 2016 preliminary injunction and represents a final decision at the district court level that the Department of Labor’s May 23, 2016 minimum salary rule is illegal and void. Continue Reading
USCIS announced on September 5, 2017, that they are phasing in a rescission of the Deferred Action for Childhood Arrivals program (DACA). The DACA program began in 2012 and granted temporary status and work permits to the “dreamers” who came here as children without visas. Here’s a summary of how the new rules will impact your employees that have DACA status: Continue Reading
The White House Office of Management and Budget (“OMB”) has indefinitely stayed the deadline for compliance with the new Employer Information Report (EEO-1 Form) for collection of annual pay and hours worked information. As previously reported, the EEO-1 Form was revised in 2016 to require certain employers to submit additional aggregate data on W-2 earnings and hours worked by employees. Specifically, the proposed revision to the EEO-1 Form, published by the United States Equal Employment Opportunity Commission (“EEOC”) in February 2016, would require every employer with 100 employees or more to submit demographic information along with the W-2 wages and hours worked for all of its employees grouped in broad EEO-1 job categories, subdivided into twelve bands. Continue Reading
Since its passage in 2016, the Defend Trade Secrets Act (DTSA) has increasingly become a valuable tool for employers seeking to enjoin former employees and competitors from misappropriating trade secrets. However, in requests for preliminary injunctive relief, companies often struggle with adequately alleging a likelihood of success on the merits of their claims under both the DTSA and state trade secret laws. A recent case filed in the Northern District of Illinois, Cortz, Inc. v. Doheny Enterprises, Inc., exemplifies this struggle and offers valuable lessons when moving for a preliminary injunction on a trade secret misappropriation claim. Continue Reading
In Esparza v. KS Industries, L.P., 2017 WL 3276363 (2017), the Fifth District Court of Appeal recently clarified the arbitrability of certain claims brought under the Private Attorneys General Act (“PAGA”). Previously, in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 (2014), the California Supreme Court held that PAGA representative actions for civil penalties are not subject to arbitration (the “Iskanian rule”). This decision led to a spate of actions by plaintiffs who signed valid and enforceable arbitration agreements asserting only PAGA claims, in an attempt to circumvent arbitration. This has been a significant hurdle to many employers, who have been forced to defend PAGA-only actions in civil court, despite the fact that their employees signed valid and enforceable arbitration agreements. Esparza offers a potential carve out to Iskanian that employers should be aware of. Continue Reading
Over the past few years, one of the biggest trends in employment law has been the proliferation of local ordinances imposing workplace standards beyond those mandated by state and federal laws. While many state governments have moved to preempt such regulations, California’s legislature has openly encouraged them, particularly in the wage and hour context. Unsurprisingly, California cities have passed a flurry of new workplace ordinances in recent years. Three new developments are worth noting for employers with employees working or living in the San Francisco Bay Area. Continue Reading
On July 17, 2017, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9. The new form must be used by September 18, 2017.
The revised form has only one substantive change. A new List C Document was added as an acceptable document – a Consular Report of Birth for a U.S. citizen who was born abroad.
The new I-9 form can be accessed here.
Employers must maintain a completed Form I-9 on file for every employee on their payroll who was hired after November 6, 1986 and for terminated employees during the required retention period. The purpose of the Form I-9 is to require the employer to establish the employee’s identity and authorization to work in the U.S. Continue Reading
As reported in our new laws for 2017 post, employers must give written notice to new employees (and to current employees upon request) explaining the rights of victims of domestic violence, sexual assault and stalking. All California employers with at least 25 employees must be in compliance, effective July 1, 2017. Continue Reading
The California Supreme Court issued its long awaited ruling in Williams v. Superior Court, in which it clarified the scope of discovery in actions brought under the Private Attorneys General Act of 2004, Labor Code § 2698 et seq., also known as PAGA. (Williams v. Superior Court, __ Cal.5th __ (July 13, 2017, S227228) (“Williams”).) At first glance employers may be concerned by the breadth of discovery the California Supreme Court permits under PAGA, however, in reality the case generally reaffirms the status quo by holding that the scope of discovery in PAGA actions is essentially the same as the scope of discovery in class actions. Specifically, the Court holds that as in class actions, the contact information of the individuals a PAGA plaintiff purports to represent is generally discoverable in the same manner as it has been for many years in wage and hour class actions. While trial courts cannot condition disclosure of employee contact information on the plaintiff making a prima facie showing on the merits of his claims, the same defenses that exist in class actions to such discovery also exist in PAGA actions. While the employer has a substantial burden of proof, the California Supreme Court reaffirmed that employers still have defenses based on undue burden and the need to protect employee privacy rights to limit such discovery. With the overall discussion of discovery issues, the Court also makes pronouncements that can be helpful to employers in other aspects of PAGA litigation, such as its statements indicating that a PAGA action must be manageable to proceed to trial.