California’s Bathroom Bill

In 2016, Assembly Bill No. 1732, also known as the “All-Gender” Bathroom Bill (Bathroom Bill), was introduced to the California legislature and subsequently signed into law by Governor Brown.  The Bathroom Bill was sponsored by California NOW, Equality California, and the Transgender Law Center because “restrict[ing] access to single-occupancy restrooms by gender create problems of safety, fairness, and convenience.” And recently, the bill went into effect.

Before the Bathroom Bill

Class Action Update: Arbitration Clauses Cannot Bar Claims for Public Injunctive Relief

Today, many businesses use arbitration as a means of resolving claims that arise. Indeed, many California consumer agreements contain arbitration clauses.

However, the California Supreme Court recently narrowed the protection of arbitration agreements with class action waivers. Financial services entities and other businesses will be required to review their current contractual provisions to ensure compliance in the Golden State.

California Supreme Court: Public Employees’ Work-Related Texts and Emails on Private Devices are “Public Records”

According to the California Supreme Court, public employees’ communications about official agency business may be subject to California Public Records Act (CPRA). This extends to communications on personal computers, smartphones, tablets, etc…

While this is a case involving a public sector employer and the CPRA, I foresee that it may – and sooner than later — be relevant to private sector employers and “bring your own device” policies (more on those here), as well as private sector employees’ privacy interests.

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.

California’s New Employee Retirement Program

At the present time, an estimated 7 million employees in California are not offered tax-qualified retirement plans through their employers. Starting Jan. 1, 2017, this is going to change. Under the California Secure Choice Retirement Savings Program (Senate Bill 1234), employers who do not currently offer a tax-qualified retirement plan to employees will be required to offer the new California state-run retirement program to their employees. According to California Treasurer’s Office, this new law is the “most ambitious push to expand retirement security since the passage of Social Security in the 1930s”.

Who is Impacted by the New Law?

Definition of National Origin Expands

Perhaps in response to some of the questions posed by the media following the election of Donald Trump, the Equal Employment Opportunity Commission (“EEOC”) recently released guidance on national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). As many employers are aware, Title VII applies to any individual employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.

Federal Court Allows California Marijuana Discrimination Suit to Move Forward

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.

Questions California Employers May Ask Interviewees

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…