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What California’s Employment Law Landscape
Means for EmployersSeptember 18, 2019
Anthony J. OncidiProskauer Rose LLP
David B. WeisenfeldXpertHR Legal Editor
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
David B. WeisenfeldXpertHR Legal Editor
The information provided in this slide presentation is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide
legal services, nor does it necessarily reflect the opinions of the speakers or their employers. No client-lawyer relationship between you and the speakers is or may
be created by your access to or use of this presentation or any information contained on them. Rather, the content is intended as a general overview of the subject
matter covered. Those viewing this presentation are encouraged to seek direct counsel on legal questions.