Smartphones and Class Actions

As we have discussed in previous posts, smartphones are making life a bit more challenging for business owners, especially in terms of overtime pay. It’s a modern reality that today’s workplace is anywhere within range of a wireless signal.  With many employees habitually checking their smartphones at all hours for emails, text messages, voicemails, tweets, and other electronic transmissions, more and more employers are finding themselves with a potential wage and hour class action on their hands.

One Work Week is Six Days and a Day of Rest

California’s “Day of Rest” statute continues to plague employers, but a recent case brings with it some good news. Under California Labor Code section 550-558.1, an employer is prohibited “from ‘caus[ing] his employees to work more than six days in seven” unless “the total hours of employment do not exceed 30 hours in any week.”[1]

According to a California Supreme Court ruling that just came down the pipe, employees must average no less than one day of rest for every seven over the course of a calendar month, giving even more work-scheduling flexibility to employers.

An Amendment to Increasing Protection for the Transgender Population

Employers, beware: New regulations expand existing transgender protections under California’s Fair Employment and Housing Act (FEHA). FEHA protects individuals who identify as transgender and provides protections on the basis of both gender identity and gender expression — regardless of the person’s assigned sex at birth. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression.

The amendments to FEHA became effective July 1, 2017 and specifically address transitioning, dress standard, name preference, identity, and documentation as they relate to the workplace and housing.[1]

Expanded Protections to Victims of Sexual Assault

Prior to AB 2337, a law that expands the rights of certain employees, victims of domestic violence, sexual assault, and stalking were protected if:

  • their employers retaliated against them,
  • they took time off,
  • they requested reimbursement for lost wages and work benefits, or
  • sought equitable relief from the Division of Labor Standards Enforcement as it related to their abuse, assault, or stalking.[1]

Things are changing, however, and, with the approval of AB 2337, victims now receive more extensive protection and information.

EEOC Focuses on Age Discrimination

With the 50th anniversary of the enactment of the Age Discrimination in Employment Act (ADEA) on the horizon, the Equal Employment Opportunity Commission (EEOC) is focusing on the issue of age discrimination in the workplace. Age discrimination involves treating an applicant or employee less favorably because of his or her age and the ADEA “forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40”. Side note: It is not unlawful for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.

Commission-Based Employees Must Be Paid for Rest Breaks

Employers: Did you know that inside sales commission-based employees must be separately paid for their rest breaks? In another win for employees across the state, a California court recently held that certain employees paid on commission are also covered by the Industrial Welfare Commission (IWC) Wage Order requirement that “rest period time shall be counted as hours worked for which there shall be no deduction from wages.” Last year, an appellate court held that employees who are paid on a piece-rate basis must be separately compensated for rest breaks and other non-productive time. Now, another Court of Appeals has extended this requirement to employees who are paid on a commission basis.

Bonuses, Overtime Pay, and Class Actions

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.

CA Employment Arbitration Clauses See Big Changes in 2017

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.