Hunton Employment & Labor Perspectives

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.

Please join Hunton Andrews Kurth LLP for a complimentary webinar:

Pot, Pay Scales, Paid Family Leave, Plus More: New California Employment Laws for 2023

Tuesday, January 10, 2023
3:00–4:00 pm ET
2:00–3:00 pm CT
12:00–1:00 pm PT

In a huge win for California employers, the California Court of Appeals recently confirmed that courts have discretion to strike claims for penalties under the Private Attorneys General Act of 2004 (“PAGA”) if the claims will be unmanageable at trial.  This decision will help employers defeat—or significantly pare down—the broad and unwieldy claims for PAGA penalties that have become popular with the plaintiffs’ bar.

Employers operating in California often ask employees to agree to arbitrate employment-related disputes as a term and condition of employment.  In its recent Chamber of Commerce v. Bonta decision, the Ninth Circuit took a significant step toward prohibiting such mandatory employment arbitration agreements.  However, the combination of a 2-1 panel decision (authored by a visiting judge from the Tenth Circuit), a scathing dissenting opinion, and a holding that splits with decisions from the First and Fourth Circuits all but ensures more litigation.  As a result, the case is far from over, so while employers eventually may have to consider changing their arbitration agreement practices, they very likely have some time to let the dust settle before doing so.

California already has prohibitions on including non-disclosure provisions in certain settlement agreements related to sexual harassment.  Now California seeks to expand these prohibitions by enacting the Proposed California SB-331 (“Silenced No More Act”).  The new Act aims to prohibit provisions within any agreement that prevent or restrict the disclosure of factual information of claims related to harassment, discrimination, and retaliation.  The proposed bill recently passed senate and assembly, and if approved by governor, will become effective January 1, 2022.

California employers will need to reconsider the way they calculate premium payments for meal and rest break violations following a recent decision of the California Supreme Court.

California recently enacted Assembly Bill 1867, requiring all private employers with 500 or more employees to provide COVID-19 supplemental paid sick leave for their California employees.  Employers must begin providing supplemental sick leave, under the new law, no later than September 19, 2020.  The law will remain in effect until the later of December 31, 2020 or expiration of any federal extension of the Families First Coronavirus Response Act.

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which requires California employers in the food sector industry to provide certain workers affected by the COVID-19 pandemic with up to 80 hours of supplemental paid sick leave.

In the face of unprecedented challenges due to COVID-19, employers have been forced to balance the need to mitigate current health risks against the need to protect their future financial viability.  Last week, the Los Angeles City Council made navigating that balance more difficult for some employers.

The Ninth Circuit recently overturned a district court’s grant of class certification on a wage statement claim under California Labor Code §226 because there were no “real-world consequences” stemming from the alleged misidentification of the employer’s name on the wage statement. Lerna Mays, a former Wal-Mart employee, brought a putative wage and hour class action alleging various claims, including a claim that Wal-Mart violated Section 226 because her employer was Wal-Mart Stores, Inc., but her pay stubs listed “Wal-Mart Associates, Inc.” The district court granted certification of plaintiff’s wage statement claim, and Wal-Mart appealed.

Effective January 1, 2020, organ donors in California are entitled to an additional 30 business days of unpaid leave.  AB 1223 extends the maximum leave time available to employees who participate in an organ donation program.  This law applies to private employers with 15 or more employees.

As originally reported on the Hunton Retail Law Resource Blog, the US Chamber of Commerce, along with two other business-oriented groups, filed an amicus brief urging the Ninth Circuit to overrule a $102 million judgment against Wal-Mart.

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The Ninth Circuit Court of Appeals upheld a District Court’s ruling in favor of employer Medtronic, Inc. in a lawsuit alleging Medtronic unlawfully terminated employee Jose Valtierra’s employment because he was morbidly obese, in violation of the Americans with Disabilities Act (“ADA”).  In doing so, the Court declined to decide whether morbid obesity is a disability, leaving this issue unsettled in the Ninth Circuit.

California employment laws are constantly evolving, making it a challenge for companies doing business in the Golden State to keep up with recent developments and remain compliant. View this complimentary video where Hunton Andrews Kurth partners Emily Burkhardt Vicente and Amber Rogers discuss “Five Recent Developments in California Employment Law You May Have Missed.”

In the recent election, Californians voted to add an employer-friendly provision to the Labor Code that allows emergency ambulance workers to be on-call during breaks.  California is one of 24 states that allow voters to initiate laws through the petition process.

When negotiating a settlement agreement in an employment dispute, “no rehire” language is often a standard term.  This language typically bars the litigating employee from seeking re-employment with the former employer.  However, in California, at least one “no rehire” provision was invalidated because it was not narrowly tailored to the employer at issue.

In Golden v. California Emergency Physicians Medical Group (“CEP”), CEP terminated Dr. Golden’s employment, and he subsequently filed a lawsuit alleging racial discrimination.  The parties settled Dr. Golden’s claims, and CEP included a “no rehire” provision in the settlement agreement.  The provision states:

The Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2), confers federal subject matter removal jurisdiction over purported class actions filed in state court when, among other things, there is an amount-in-controversry (“AIC”) exceeding $5,000,000.  Deciding whether a class action can be properly removed under CAFA typically turns on whether this high jurisdictional threshold can be met.

In a time when workplace violence seems to be on the rise, many companies have adopted a strict no tolerance policy even for conduct outside the workplace.  In California, however, employers need to be cognizant of the protections afforded individuals that may make such terminations riskier than the company may expect.  One employer got just such a reminder last week when a California jury returned an $18M verdict against it for terminating an employee after he was arrested for threatening his girlfriend outside of the workplace.

There may be some changes coming to how California enforces its antidiscrimination law, the Fair Employment and Housing Act (“FEHA”).  In February 2017, a bill (Senate Bill 491) was introduced in the California Senate proposing to allow local government entities to enforce antidiscrimination statutes.

Driven by the wave of publicity surrounding sexual harassment allegations against prominent artists, executives, news anchors, filmmakers and legislators, and the ensuing #MeToo movement, legislators in California and several other states recently have introduced bills designed to prevent such harassment.  Below we summarize four bills introduced in the California Senate and Assembly in January 2018.  Employer groups have not yet publicly mounted a challenge to any of these bills, and it is not possible to say which, if any, of these bills will move all the way through the legislative process and be signed into law by the Governor.