On December 6, 2019, the Second Circuit issued a decision that will have a strong impact on the settlement of wage and hour actions under the Fair Labor Standards Act (FLSA). In Yu v. Hasaki Restaurant, Inc., the U.S. Court of Appeals for the Second Circuit reversed a district court ruling and held that FLSA settlements pursuant to a Rule 68 offer of judgment do not require court approval. This decision departs from the conventional view that settlements of FLSA claims generally require formal approval from a court or the Department of Labor (DOL) in order to be enforceable. Continue Reading
First Day on the Job and on Notice: When the Statute of Limitations Begins for Employer Background Checks
Employers began to rethink how they obtain authorization and retrieve background and credit checks for new employees after the Ninth Circuit’s decision in Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169, 1177 (9th Cir. 2019), as we’ve previously discussed. However, lower California courts recently decided other issues surrounding background checks, such as the amount of time employees have to file a claim. These recent rulings suggest that the statute of limitations for an employee to file a claim for an alleged violation of federal and/or state background and credit checks laws can begin on the employee’s first day of work. Continue Reading
New Jersey Bill Would Codify a Stricter Version of ABC Test for Determining Independent Contractor Status
On November 7th a bill was introduced in the New Jersey legislature that would, like California’s AB 5 (see our previous blog here), codify a stricter version of the ABC test for determining independent contractor classification. The bill, S4204 (text available here), also affirms New Jersey courts’ use of the ABC test under the state’s unemployment law, Wage and Hour Law, Wage Payment Law, and other contexts. Continue Reading
Stop the Camera! New Limits on Facial Recognition Technology for Interviews Take Effect in Illinois on January 1, 2020
Illinois’ first-of-its-kind legislation aimed at regulating the use of artificial intelligence in video interviews for Illinois-based positions goes into effect on January 1, 2020. The Artificial Intelligence Video Interview Act will make employers’ use of artificial intelligence to analyze applicant-submitted video interviews more complicated at a time when employers are increasingly relying on the technology to streamline the hiring process and support diversity initiatives. Despite the benefits of facial recognition technology, proponents of the law claim these technologies perpetuate gender, racial, age and other biases that can led to employment discrimination. Continue Reading
California Appellate Court Clarifies the Monetary Amount for Meal Period, Rest Break, and Recovery Period Premiums, and Affirms an Employer’s Neutral Rounding Policy
On October 9, 2019, the Second Appellate District of the California Court of Appeal issued a decision clarifying the rate of pay at which an employer must pay meal period, rest break, and recovery period premiums. More specifically, the appellate court answered the question: what does the “regular rate of compensation” in Labor Code Section 226.7(c) actually mean? In Ferra v. Loews Hollywood Hotel, LLC, a 2-1 majority of the Court of Appeal affirmed the trial court’s holding that in paying meal period and rest break premiums, the regular rate of compensation is equal to one hour of the employee’s base hourly wage and is not synonymous with the “regular rate of pay” used to calculate overtime payments. This clarification is important to every employer in California. Continue Reading
AB 51 – Arbitration Under Attack
Posted in Arbitration AgreementsOn October 10, 2019, Governor Newsom signed Assembly Bill 51 (AB 51) into law. This important legislation is aimed at reversing a series of cases that allow employers to unilaterally impose pre-dispute arbitration agreements on their employees as a condition of hire or continued employment. Its stated purpose is to ensure that: (1) all persons have the full benefit of the rights, forums and procedures (rights) established by the California Fair Employment and Housing Act (FEHA) and the state’s Labor Code, including the right to file and pursue a civil action or complaint with, or otherwise notify any state agency, public prosecutor, law enforcement agency or court or other governmental entity of, any alleged violation of rights; and (2) there is no retaliation against a person for refusing to consent to the waiver of such rights, and that any contract relating to the relinquishment of those rights is entered into as a matter of voluntary consent, not coercion. The new law goes into effect on January 1, 2020. Continue Reading
AB 1291 Forces California Cannabis Companies To Sign “Labor Peace Agreements” With Unions, But Statute May be Unconstitutional
Posted in California Employment LegislationOn October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law. AB 1291 was supported and endorsed by various unions, including the United Food and Commercial Workers Western States Council, a 170,000-member branch representing thousands of cannabis workers. This bill, as well as other California statutes and local laws, signals a growing insistence by state and local regulators that employers doing business in California accept pro-union requirements. However, many of these new pro-union laws, including AB 1291, may be unconstitutional. Continue Reading
California AB 5 in Entertainment, Media and Advertising
As previously reported, Governor Gavin Newsom recently signed into law AB 5. The controversial law narrowing the classification of independent contractors was aimed at companies like Uber and Lyft. But what does it mean for the entertainment industry? Continue Reading
2020 Vision: California’s New Employment Laws
To close out the 2019 legislative season, Governor Gavin Newsom signed dozens of bills into law, which will have lasting impacts for California employers. In addition to the summaries and clarifications from prior blog posts, below is an overview of key new employment laws. Continue Reading
Big Bang! California Expands Employee Privacy Rights & Insights from the Office of Attorney General
Posted in PrivacyOn October 11, 2019, California Gov. Gavin Newsom signed AB 25 into law, giving employees, applicants, independent contractors, emergency contacts and dependents new rights to privacy. As explained in our previous post—Employee Privacy by Design: Guidance for Employers Beginning to Comply with the California Consumer Privacy Act—the amendment to CCPA is a limited one-year reprieve for employers. Effective January 1, 2020, employers must provide disclosures to employees about the categories of personal information collected and its purpose. One year later, on January 1, 2021, all rights under CCPA will be provided, including the right to request access and the right to be forgotten. Below are a few quick points clarifying what AB 25 means for Human Resources professionals: Continue Reading
