Overtime pay, or the alleged lack thereof, is an issue we regularly see pop up in the California courts. While California employers generally recognize that non-exempt employees (e.g. many hourly employees) who work overtime must receive overtime premiums on their base pay, not all are aware that these premiums may also be required on other, “supplemental” aspects of compensation to nonexempt employees. A common example? Bonuses.
California has several new employment laws on the books, at least one of which may affect employers issuing employment agreements now deemed “against public policy.” Assembly Bill 465, effective January 1, 2017, adds a new section to the Labor Code that prohibits employers from compelling employees to resolve employment disputes outside of California. Such provisions are now void as against public policy.
The distinction between exempt and non-exempt employees can, at times, be unclear for many employers. State and federal law may apply regardless. Indeed, the Fair Labor Standards Act (FLSA) requires that employers classify jobs as either exempt or nonexempt, so misclassifying an employee, even unintentionally, can result in serious legal trouble.
On January 1, 2017, employers in California with headquarters outside of the Golden State will be treated the same as in-state employers insofar as applying California Law. Labor Code Section 925, which applies to employment contracts with employees who live and work primarily in California, prohibits the use of contract provisions that apply another state’s law or require adjudication of disputes in another state as a condition of the employment of an individual who primarily resides and works in California.
The results are in and we’re taking a look ahead at the potential changes in laws and policies that could impact employers in President-Elect Trump’s new administration. Particularly, we will be closely monitoring:
Employment policies continue to be closely scrutinized by the National Labor Relations Board (NLRB) and certain policies seem to be receiving particular attention. Not surprisingly, some of these policies relate to social media.
A somewhat new area in the employment world, the role of social media is just being carved out in the courts and employers must walk a fine line when determining how to police employees’ use of social media inside and outside of the workplace.
The use of medical marijuana in the California workplace has been a popular, if not confusing, topic as of late. With conflicting views on medical marijuana usage at the federal and state levels, many employers are understandably perplexed, if not a little nervous, while attempting to walk the fine line between federal law (which continues to recognize marijuana as an illegal substance) and contrary state laws (permitting marijuana both for medical and recreational use).
Perhaps a recent case out of a federal court in California will help shed some light on the matter. The case involves an employee who had worked at Kohl’s Department Stores for five years when he was diagnosed with anxiety and given a prescription for medical marijuana. He did not inform his employer of his drug use.
Many California employers are aware that there are limits on the types of questions you can ask job applicants and/or current employees who are interviewing for a new position. For example, it is unlawful to ask a question that could reflect bias based on race, color, age, gender, religion, gender affiliation, or any other protected status. This means an interviewee cannot be questioned about their religious beliefs, marital status, plans for a family, or sexual orientation. Furthermore, hiring decisions cannot be based on stereotypes or assumptions about a person’s protected status. While this may seem hard to prove, plenty of lawsuits by disgruntled applicants / employees have been brought against employers on this very premise. As a business owner in California, it is crucial that every one of your employees who are involved in the hiring process is aware of these boundaries before any interview takes place.
What does the EEOC have to say about interview questions? The EEOC’s Prohibited Employment Policies/Practices guidelines clearly state that “[a]s a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.”
What exactly does this mean? Let’s look to a recent court decision for guidance…
The Ninth Circuit recently found unenforceable a class (or “collective”) action waiver requiring employees to arbitrate their claims individually. In other words, requiring class action waivers as a condition of hire or continued employment violates the National Labor Relations Act (NLRA). The NLRA applies to both unionized and many private, non-unionized workforces and protects covered employees’ rights to engage in concerted activity for the purpose of mutual aid or protection.
The facts of the case, Morris v. Ernst & Young, are as follows: An employee filed a class action in federal court claiming that Ernst & Young misclassified employees to avoid paying overtime. Another employee proceeded to join the case. This was despite agreements signed by the employees stating that the employees must pursue any and all claims against their employer in individual (and not class or collective) arbitration proceedings. The federal district court ordered the two employees’ claims to individual arbitration, and the employees appealed.
California has been home to many a class action lawsuit surrounding meal and rest breaks, both before and after the state Supreme Court’s crucial 2012 decision in Brinker Restaurant Corp. v. Superior Court. Consequently, California employers have a sharp interest in making their break policies and practices as compliant as possible.
The Basic Rest Break Rule
What does California law have to say about when employees need to take rest breaks? First, CA Labor Code (Section 226.7) states that employers cannot require employees to work during breaks mandated by an order of the Industrial Welfare Commission. Second, the IWC has required (Section 12(A) of the Wage Orders) that: