Employee Privacy by Design: Guidance for Employers Beginning to Comply with the California Consumer Privacy Act

On September 13, 2019, the California Senate and Assembly unanimously passed an amendment to the California Consumer Privacy Act (“CCPA”) that places onerous obligations on employers and entitles employees to statutory damages for data breaches.  The landmark measure—AB 25—awaits Governor Newsom’s signature (or veto).  Regardless of whether AB 25 is signed into law, CCPA applies to employee data and employers have until January 1, 2020 to comply.  This article explores how the California Consumer Privacy Act impacts existing employee privacy rights and how employers can begin to develop a holistic privacy compliance program.

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It’s Official: Newsom Expands The Definition of “Employee” Under California Law

On September 18 2019, Governor Gavin Newsom signed into law AB-5, which codified the California Supreme Court’s Dynamex v. Superior Court decision.  In Dynamex, the California Supreme Court adopted the so-called “ABC” test to determine coverage under the Industrial Welfare Commission (“IWC”) Wage Orders.  AB-5 expands the application of the ABC test to the entire California Labor Code and will take effect on January 1, 2020.
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Peace for Piece-Rate Employers in Washington

On September 5, 2019, the Washington Supreme Court issued a huge win for all non-agricultural employers who pay commission or piece-rate pay to their employees in Washington state. In a 6-3 decision, the Washington Supreme Court held in Sampson v. Knight Transportation (No. 96264-2) that a non-agricultural piece-rate employer complies with the Washington Minimum Wage Act when an employee’s total earnings in given workweek divided by the employee’s total hours worked in the same workweek exceeds the applicable minimum wage rate. While this conclusion may seem obvious, the Washington Supreme Court in 2018 rejected the same workweek averaging method for agricultural workers. Carranza v. Dovex Fruit Co., 190 Wn. 2d 612 (2018) held that the Washington Minimum Wage Act (“MWA”) requires agricultural workers earning piece-rate pay to be separately compensated on an hourly basis for all “activities outside of piece-rate [] work.” The question in Sampson was whether the holding in Carranza should be extended to non-agricultural piece-rate employers. Relying on a regulation promulgated over 40 years ago by the Washington Department of Labor & Industries (“DLI”), the Washington Supreme Court held that Carranza’s separate compensation rule is confined to the narrow context of agricultural employment. Continue Reading

An Employer’s Bargaining Table Complaints as to Poor Business Conditions Is Not a Claim of Poverty Entitling a Union to Business Sensitive Information

While bargaining, unions often demand that employers produce information relevant to the bargaining process so that the union may fulfill its duties as bargaining representative. Under the law and absent some compelling reason for not doing so, NLRA Section 8(a)(5) compels employers to produce such relevant bargaining information. This informational duty is particularly unctuous for employers who have fallen on hard economic times for where an employer claims a financial inability to meet a union’s economic demands, it may be required to open its books to the union and to produce otherwise off-limits business sensitive information so that the union may assess the employer’s plea of poverty. See, e.g., NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Nielsen Lithographing Co., 305 NLRB 697 (1992). For a whole host of real world business reasons, employers finding themselves in such difficult circumstances are resistant to the public airing of such sensitive information. Continue Reading

Three Major Workplace Bills to Land on Gov. Gavin Newsom’s Desk

Following the launch of the so-called “MeToo” movement, the California Legislature (controlled by a Democratic supermajority) has aggressively churned out new bills that further strengthen the ability for workers to sue their employers and increase the already-significant regulatory burden on these companies. This fall, the California Legislature is geared to send three significant bills to Governor Gavin Newsom that all California employers should carefully follow. Continue Reading

More Good News From The Board: NLRB Scraps The Clear And Unmistakable Waiver Standard For The Contract Coverage Test When Deciding Unilateral Change Cases

A flurry of critical cases have issued out of the NLRB over the past two weeks. The latest is the Board’s decision in MV Transportation, 368 NLRB No. 66 (2019), and the Board’s decision provides critical cover to employers seeking to make changes to working conditions without first bargaining with an incumbent union. By way of background, the NLRA requires employers and unions to bargain in good faith with respect to wages, hours and working conditions (mandatory bargaining subjects). The end product of that bargaining process is the parties’ collective bargaining agreement (CBA), which serves as the physical embodiment of the parties’ bargained-for deal and contains the language on which the parties have agreed. It is that language that determines each parties’ rights, duties and obligations under the CBA and, now, under the Act. While it is well established that an employer does not violate the Act if the collective-bargaining agreement does, in fact, grant the employer the right to take certain actions unilaterally (i.e., without further bargaining with the union), unanticipated issues and controversies often arise over whether an employer’s conduct is permitted under the CBA or not. Indeed, despite the most careful drafting, there will be times when a CBA’s language, though perhaps arguably applicable to the given situation, will not be directly on point and/or require interpretation to determine the parties’ rights and obligations under the CBA. The question presented in MV Transportation concerns the standard the Board should apply to determine whether a collective-bargaining agreement grants the employer that right. Continue Reading

Employers May Not Have To Retain Racists, Sexists And Belligerently Disobedient Employees After All-The NLRB Appears Ready To Rethink Its Positions On Controversial Discipline-Related Doctrines

It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action against a worker for their use of such “bad” language. However, when those remarks are made while an employee is engaged in union or other protected concerted activity (PCA), then, depending upon the employee’s remarks and the context in which they are made, disciplining them for their use of inappropriate language may be an unfair labor practice. Atlantic Steel, 245 NLRB 814 (1979). For example, striking employees who, in addition to directing offensive statements at those who cross their picket line, also threaten them with physical harm or violence or assault them will lose the protection of the National Labor Relations Act (NLRA or the Act). On the other hand, those who merely verbally attack, trash talk or speak ill of line crossers, no matter how extreme or offensive their words are, generally remain statutorily protected. Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984). During its reign, the Obama National Labor Relations Board (NLRB) issued a number of decisions relying on Atlantic Steel to grant protection to represented employees who voiced extremely profane and racially-charged language in the workplace. See, e.g., Plaza Auto Center, Inc., 360 NLRB 972 (2014); Pier Sixty, LLC, 362 NLRB 505 (2015); and Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016) to get a sense of the outrageous conduct the Board has recently found permissible under the Act. Continue Reading

The NLRB Nixes Union Gerrymandering And Establishes A Three Step Test For Voting Unit Determinations

In the organizing context, the scope of a potential bargaining unit is everything-it determines which employees’ votes will count towards establishing a union’s putative majority in a secret ballot election, and determines the unit within which bargaining must take place if a union prevails in that election. Unsurprisingly, then, unit scope is one of the most hotly contested issues in election cases. Continue Reading

The NLRB Rules That Employers May Bar Union Representatives From Their Property Even Though They Have Allowed Other Third Parties To Engage In Civic, Charitable Or Commercial Solicitations There

Setting clear and reasonable standards for taking access to an employer’s private property is high on the National Labor Relations Board’s agenda. Not only is the Board talking about issuing formal rules in this area, but the Agency is cranking out new access decisions left and right, the most recent being its recent decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, dated September 6, 2019 (Kroger). The issue presented there was whether the National Labor Relations Act (NLRA or Act) requires an employer to grant nonemployee union representatives access to its premises to solicit the employer’s customers if it has also permitted other third parties to engage in civic, charitable or commercial solicitations there. The Board answered this question in the negative. Continue Reading

An Employer’s Erroneous Announcement To Employees Declaring Them Independent Contractors Does Not, Standing Alone, Violate The NLRA

Does an employer who genuinely believes that its workers are independent contractors and tells them that they are contractors and not employees, only to later find out that it was wrong, violate Section 8(a)(1) of the National Labor Relations Act (NLRA or Act)? Unions and workers’ advocates argue that such erroneous classifications/announcements should be illegal because when an employer misclassifies statutorily covered employees, they effectively convey the message to the employees that they have no rights under the law when, in fact, they do. Recognizing the importance of this issue, on February 15, 2018, the National Labor Relations Board (NLRB or Board) issued a Notice and Invitation to parties in a pending matter, Velox Express, Inc., Case No 15-CA-184006 and interested amici to file briefs to address the following question:

Under what circumstances, if any, should the Board deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the Act? Continue Reading

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