What California’s Employment Law Landscape€¦ · What California’s Employment Law Landscape...

What California’s Employment Law Landscape

Means for EmployersSeptember 18, 2019

Anthony J. OncidiProskauer Rose LLP

aoncidi@proskauer.com

David B. WeisenfeldXpertHR Legal Editor

david.weisenfeld@xperthr.com

From #MeToo to Arbitration and Much More

California’s Employment Law Landscape 2

Governor of California

Not every human

problem deserves a law.”

Gov. Jerry Brown

1975-83 and 2011-19

Gov. Brown, you’re already

missed!Gov. Gavin Newsom

2019 -

California’s Employment Law Landscape 3

LEGISLATION & REGULATIONS

California’s Employment Law Landscape 4

Statewide Hair Discrimination Law – Senate Bill 188

• Defines “Race,” for FEHA purposes,

to include traits historically associated

with race, including hair texture and

protective hairstyles

• Defines “Protective hairstyles” to

include braids, locks, and twists

California’s Employment Law Landscape 5

A House of Cards?

California’s Employment Law Landscape 6

#MeToo Movement Sparks Sexual Harassment Laws

What saved Harvey Weinstein and others for so long is gone

• Nondisclosure agreements to shield alleged

harassers under increasing scrutiny, CA led

the way

• STAND Act voids confidentiality/nondisclosure

provisions in settlement agreements for

sexual assault, sexual harassment, sex

discrimination, or retaliation for reporting harassment/discrim.

• Lone exception is if harmed party requests privacy

California’s Employment Law Landscape 7

STAND Act

• Took effect January 1, 2019 (Stand Together Against Nondisclosure

Agreements)

• Tony, what’s been the impact

so far?

• Settlement terms still confidential?

California’s Employment Law Landscape 8

Tougher Training Requirements

• Must provide training if 5 or more employees (reduced from 50

or more)

• Not just for supervisors

• Two hours of training to all

supervisory employees and

at least one hour of |training

to all nonsupervisory employees

by January 1, 2021

• Original compliance date just moved back from 1/1/2020—Why?

California’s Employment Law Landscape 9

Sexual Harassment Training Compliance

• Tony’s warning:

• Don’t just require employees to click “comply” by clicking through

online training.

• How real is that risk?

• Do we need to overhaul current training protocols?

• Training must be “interactive”

California’s Employment Law Landscape 10

ARBITRATION

California’s Employment Law Landscape 11

Santa Ana Winds Blowing Against Arbitration in CA

• US Supreme Ct. has upheld mandatory

arbitration clauses as a condition of

employment

• Often overruling 9th Circuit and Cal.

Supreme Ct.

• Bill percolating in CA takes aim at mandatory arbitration—AB 51

• A handful of other states have limited mandatory arb. with sexual

harassment cases (MD, NY (struck down), VT, WA, IL upcoming)

• Tony, would California’s go even further?

California’s Employment Law Landscape 12

AB 51 – Potential Implications

• Assembly Bill 51 would make it a criminal misdemeanor to require

applicant or employee to “waive any right, forum or procedure” for a

violation of the CA Fair Employment and Housing Act or Labor Code

• This includes the right to file and pursue a civil lawsuit in court under

those statutes

• Will Gov. Newsom sign and will it withstand legal challenge?

• What’s number one complaint you hear about arbitration?

-The “confidentiality conundrum”

California’s Employment Law Landscape 13

US Supreme Court

California’s Employment Law Landscape 14

Schein, Inc. v. Archer and White Sales, Inc.,

139 S. Ct. 524 (2019)

• When a contract delegates the

question of the arbitrability to an

arbitrator, the court must order

the matter to arbitration even if

the court thinks the argument

that the arbitration agreement

applies is wholly groundless

California’s Employment Law Landscape 15

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019)

• Supreme Court reaffirms that class

arbitration may not be ordered unless

the arbitration agreement clearly

allows for it

• Silence or ambiguity is not a basis for

ordering class arbitration

California’s Employment Law Landscape 16

OTO, LLC v. Kho, 2019 WL 4065524 (Cal. S. Ct. 2019)

• Court finds an “extraordinarily high”

degree of procedural unconscionability

and “significant oppression”

• Court finds the arbitration agreement at

issue to be “unfair” because it requires a

“formal and highly structured arbitration

process that closely resembled civil litigation”

• Earlier cases from the same court mandated such processes because

they were “carefully crafted to ensure fairness to both sides”

California’s Employment Law Landscape 17

Diaz v. Sohnen Enterprises,

34 Cal. App. 5th 126 (2019)

• Holding that employee who

continued employment after

employer implemented

arbitration agreement

impliedly consented to

arbitration

California’s Employment Law Landscape 18

Gig Economy, What Gig Economy?

• Uber, Lyft, etc. not facing favorable climate in CA

• In early 2019, Uber settled CA lawsuit for $20 million that claimed the

ride-sharing company had misclassified

its drivers as independent contractors

rather than employees

• There are a growing number of cases

along these lines

• California courts taking broad view of employees

California’s Employment Law Landscape 19

Dynamex Ruling and AB 5

• In Dynamex, California Supreme Court made it more difficult to

classify workers as independent contractors

• Under its “ABC test,” a worker is considered an employee unless the

hiring entity can show that the worker:

• A. Is free from control and direction of their work, both under contract

and in fact;

• B. Performs work that is outside the usual course of its business; and

• C. Is customarily engaged in an independently established trade,

occupation

California’s Employment Law Landscape 20

Dynamex and AB 5

• California's legislature has sent AB 5 to the governor, which would

codify the Dynamex ruling as part of the state code.

• Would extend its application to include state labor and unemployment

insurance laws, effective 1/1/2020

• Gov. Newsom indicated support

• Uber, Lyft, DoorDash have pledged $90 million toward a ballot

initiative to overturn/modify AB 5 and Dynamex

• Tony, what would this mean as a practical matter?

California’s Employment Law Landscape 21

Discrimination

California’s Employment Law Landscape 22

Wilson v. CNN, 7 Cal. 5th 871 (2019)

• Television producer sued CNN for discrimination, wrongful termination

and related claims

• CNN filed an Anti-SLAPP Motion in an effort to get an early dismissal

of Wilson’s lawsuit – based upon CNN’s exercise of its right of free

speech in making staffing decisions

• Cal. Supreme Ct. split the baby – some but not all of CNN’s staffing

decisions may be shielded by free speech right

• CNN has burden of showing CNN was exercising its editorial control

in making these employment decisions

California’s Employment Law Landscape 23

BREACH OF CONTRACT

California’s Employment Law Landscape 24

Voris v. Lampert, 2019 WL 3820000 (Cal. S. Ct. 2019)

• Voris successfully sued Lampert for unpaid wages for both breach of

contract and statutory wage/hour violations

• In this case, Voris recast his allegations into claims that his unpaid

wages had been “converted” by the companies and that they were

liable to him for tort damages (including punitive damages)

• Cal. S. Court declines to supplement existing law with an additional

tort remedy for employees in this situation

California’s Employment Law Landscape 25

Lacagnina v. Comprehend Sys., Inc.,

25 Cal. App. 5th 955 (2018)

• Employee may recover for breach of contract, but not for what it

referred to as a “novel” theft of labor by false pretenses in

violation of Cal. Penal

Code §§ 484 and 496

California’s Employment Law Landscape 26

PROCEDURAL ISSUES

California’s Employment Law Landscape 27

Ryze Claim Sols. LLC v. Super. Ct. of Contra Costa Cnty,

33 Cal. App. 5th 1066 (2019)

• California employee is compelled to litigate

his employment claims in Indiana.

California’s Employment Law Landscape 28

EEOC v. Global Horizons, Inc.,

915 F.3d 631 (9th Cir. 2019)

• Fruit growers may have been joint employers

of Thai workers for purposes

of Title VII

California’s Employment Law Landscape 29

Golden v. California Emergency Physicians Med. Grp.,

896 F.3d 1018 (9th Cir. 2018)

• No-rehire clause in settlement

agreement is an unlawful

restraint of trade

California’s Employment Law Landscape 30

AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc.,

28 Cal. App. 5th 923 (2018)

• Employee non-solicitation provision

was an unenforceable restraint

California’s Employment Law Landscape 31

MISCELLANEOUS

California’s Employment Law Landscape 32

Connor v. First Student, Inc.,

5 Cal. 5th 1026 (2018)

• Employer must obtain written authorization to conduct background

check

• Any overlap between California Investigative

Consumer Reporting Agencies Act (“ICRAA”)

and California Consumer Credit Reporting

Agencies Act does not render one

superfluous or unconstitutionally vague

California’s Employment Law Landscape 33

Gilberg v. California Check Cashing Stores, LLC,

913 F.3d 1169 (9th Cir. 2019)

• Employer’s disclosure form violated

FCRA’s “standalone document

requirement” because it contained

“surplus language” involving

applicants’ rights under various

states’ laws

• The language in the disclosure form

was not “clear,” though it was “conspicuous” enough to pass muster

under the statute

California’s Employment Law Landscape 34

Moreno v. Visser Ranch, Inc.,

30 Cal. App. 5th 568 (2018)

• Employer may be

liable for accident

caused by on-call

employee.

California’s Employment Law Landscape 35

What California’s Employment Law Landscape

Means for EmployersSeptember 18, 2019

Anthony J. OncidiProskauer Rose LLP

aoncidi@proskauer.com

David B. WeisenfeldXpertHR Legal Editor

david.weisenfeld@xperthr.com

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