Updates to “Joint Employer” Legislation?

Generally speaking, joint employment, or co-employment, is the sharing of control and supervision of an employee’s activity among two or more business entities. A benefit of the increasingly popular employment practice is the ease with which joint employers are often able to hire experts in niche industries, individuals with specialist skills, and/or even replace their regular workforce. Currently, however, no single legal definition of joint employment exists and Congress is out to change that.

Non-Competes in California – A Non-Starter?

Are non-compete agreements truly a thing of the past in California? It seems that the California Supreme Court would like employers to think so. After all, in 2008 the Court brought down the hammer on these covenants not to compete (a clause under which one party (usually an employee) agrees not to enter into or start a similar profession or trade in competition against another party (usually the employer)), holding that California Business Code §16600 prohibits all restraints on trade, including non-solicitation provisions (Edwards v. Arthur Anderson, 44 Cal. 4th 937(2008)).

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.

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.

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.

PAGA Claims: Arbitration Not Allowed

The California Labor Code Private Attorneys General Act (PAGA) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for alleged Labor Code violations. In other words, PAGA gives a private citizen the right to pursue fines that would normally only be available to the State of California, thereby allowing a private citizen to act as an “attorney general”. Defending these claims can be time consuming and costly for employers, and a California appellate court recently made things even more challenging for business owners across the state when it affirmed that arbitration is not permitted for PAGA claims. Indeed, arbitration clauses are undergoing a change up in employment agreements across the state, read more here.