California Employment Law Update

Category Archives: California Labor & Employment Law

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It May Be Time To Update Those Arbitration Agreements Again!

By Tony Oncidi, Mark Theodore, Jonathan Slowik and Ariel Brotman on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code, PAGA, Wage and Hour
Back in the “good old days,” arbitration agreements barred just about any type of civil litigation that was filed in court. Then, as we reported in 2014, the California Supreme Court determined that Private Attorneys General Act (“PAGA”) claims are immune from arbitration in Iskanian v. CLS Transp. Los Angeles, LLC – which, unsurprisingly, led … Continue Reading

“Runaway Juries” And The Lure Of Arbitrating Employment Disputes Highlighted In Latest Podcasts

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, Jury verdicts
Labor & Employment Co-Chair Tony Oncidi was recently interviewed for the Lexis Practical Guidance podcast (links below): In “Runaway Juries in Employment Litigation Podcast,” Tony discusses some astoundingly large jury verdicts (greater than $100 million!) in recent single-plaintiff California employment trials and provides cogent insights about how to avoid same. As one solution to runaway … Continue Reading

California Supreme Court Expands Employee Whistleblower Protections

By Tony Oncidi, Wesley C. Shelton and David Gobel on Posted in California Labor & Employment Law, California Labor Code, Whistleblowers
  The California Supreme Court has held that an employee who makes a whistleblower complaint to his or her employer may bring a retaliation claim under the whistleblower statute (California Labor Code § 1102.5(b)) even if the subject of the complaint was already known.  Previous case law held that an employee whistleblower complaint regarding an … Continue Reading

May 2023 California Employment Law Notes

By Tony Oncidi on Posted in Age discrimination, California Labor & Employment Law, Computer and Internet Use, Day Laborers, Discrimination, Employee Benefits, Employment Contracts, Employment Law Notes, Employment Policies, Independent Contractors, Privacy, Religion
We invite you to review our newly-posted May 2023 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include: Art Teacher’s Age Discrimination Case May Not Be Barred By “Ministerial Exception” Users May Have Privacy Interest In Emails Sent Over Company Network Absent Express … Continue Reading

Unions, Legislature Dealt Yet Another Blow in AB 5 Appeal

By Tony Oncidi on Posted in California Labor & Employment Law, Day Laborers, Employee Benefits, Employment Contracts, Employment Policies, Independent Contractors
Olson v. State of Cal., 62 F.4th 1206 (9th Cir. 2023) In the latest in a string of defeats for the State of California, a Ninth Circuit panel unanimously held that AB 5 (the anti-independent contractor law) may violate the equal protection rights of independent contractor drivers and the gig companies that retain them.  The … Continue Reading

Art Teacher’s Age Discrimination Case May Not Be Barred By “Ministerial Exception”

By Tony Oncidi on Posted in Age discrimination, California Labor & Employment Law, Discrimination, Employment Law Notes, Religion, Uncategorized
Atkins v. St. Cecilia Catholic Sch., 2023 WL 3142316 (Cal. Ct. App. 2023) Frances Atkins was a long-term employee of St. Cecilia Catholic School, and in her final year with the school, she worked part-time as an art teacher and office administrator.  Following the termination of her employment, Atkins sued the school for age discrimination in … Continue Reading

Gig Workers: 2, California: 0 in Ongoing Fight for Independent Contractor Status

By Tony Oncidi and David Gobel on Posted in ABC Test, Articles, California Labor & Employment Law, Employment Law Notes, Employment Policies, Independent Contractors
The long-running feud between California and the “gig economy” shows no sign of ending soon. On April 28, 2023, the State of California submitted a petition to the Ninth Circuit in Olson v. California, No. 21-55757 (9th Cir.), seeking review or a rehearing before a new panel of judges, after a Ninth Circuit panel in … Continue Reading

What Appellate Courts Are Missing About PAGA Standing After Viking River Cruises

By Jonathan Slowik on Posted in Arbitration Agreements, California Labor & Employment Law, California Supreme Court, PAGA
The California Supreme Court has scheduled oral argument for May 9, 2023 in Adolph v. Uber Technologies, Inc., a closely watched case that concerns whether a Private Attorneys General Act (PAGA) plaintiff loses standing to pursue a representative claim when their individual PAGA claim is compelled to arbitration.  This question was left open by the blockbuster … Continue Reading

California Pay Data Reporting Deadline: May 10, 2023

By Kate Gold and Michelle Lappen on Posted in California Labor & Employment Law, Pay equity
As we previously reported (here), California requires private employers of 100 or more employees (with at least one employee in California) to report pay and demographic data to the California Civil Rights Department (“CRD”) (formerly the Department of Fair Employment and Housing).  Senate Bill 1162 (previously covered here) enhanced California’s reporting requirements by: Changing the … Continue Reading

AI is Here and So Are the New AI Rules for Employers

By Tony Oncidi and Sehreen Ladak on Posted in Age discrimination, Biden Administration Coverage, California Labor & Employment Law, Computer and Internet Use, Discrimination, Employment Applications, Employment Policies, FEHA, Gender discrimination, Hiring, New and Proposed Laws and Legislation, Pay equity, Reasonable Accommodation, Reporting Requirements, Retaliation
California is considering a new law (Assembly Bill 331), also known as the Automated Decision Systems Accountability Act.  Modeled after the Biden Administration’s Blueprint for an AI Bill of Rights (whitehouse.gov), AB 331 would control the use of machine-based systems in making “consequential” employment decisions such as compensation, promotions, hiring, termination, and automated task allocations. … Continue Reading

Bloomberg Law Podcast: Jury Slashes $137 Million Verdict in Tesla Racial Harassment Case

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, Harassment, Jury verdicts
Labor Co-Chair Tony Oncidi joins Bloomberg Law podcast host June Grasso to discuss the roller coaster verdicts in a Tesla racial harassment case. We covered the original $137 million verdict here, and again here, which was recently reduced by a San Francisco jury to $3.175 million. We invite you to listen to Tony’s interview with Bloomberg Law here … Continue Reading

California Concludes It’s Been Too Hard On Employers, Offers Apology (Nah, Just Kidding!)—A New Raft Of “Job-Killer” Bills Is Heading This Way!

By Tony Oncidi, Ariel Brotman and Morgan Peterson on Posted in California Labor & Employment Law, California Labor Code, New and Proposed Laws and Legislation
Spring in California can only mean one thing, and no, it’s not Coachella, Dodgers games or even the return of the swallows to San Juan Capistrano—it’s the annual release of the California Chamber of Commerce’s list of “Job Killer Bills.” Once again, this list proves that former California Governor Jerry Brown had it right when … Continue Reading

$137 Million Racial Harassment Verdict Against Tesla Slashed by New Jury!

By Tony Oncidi and Morgan Peterson on Posted in Arbitration Agreements, California Labor & Employment Law, Harassment, Jury verdicts
An astronomical $137 million jury verdict against Tesla has again been reduced, for a second (and potentially final) time. Last Monday, following a five-day trial on damages, a federal court jury awarded Owen Diaz, a former Tesla elevator operator, $175,000 in emotional distress damages and $3 million in punitive damages, totaling nearly $3.2 million—almost $134 … Continue Reading

No Sexual Harassment Claim Between Friends

By Philippe A. Lebel and Ryan McGill on Posted in California Labor & Employment Law, Harassment, Sexual Harassment
Under California’s Fair Employment and Housing Act (“FEHA”), employers generally are strictly liable for a supervisor’s harassment, even where the employer is unaware of the supervisor’s alleged bad actions.  While this left many employers without much recourse in the event supervisors misbehaved, a recently published Court of Appeal decision offers some hope.  In Atalla v. … Continue Reading

Good News for Employers: Good Faith Belief of Compliance Precludes Both Final Wage and Wage Statement Penalties

By Kate Gold and Sehreen Ladak on Posted in California Labor & Employment Law, California Labor Code, California Labor Code Section 203, Class Actions, Labor Code § 226, Meal Periods and Rest Breaks, Wage and Hour, Wage Statements
Last summer, we reported here the California Supreme Court ruling that premium payments owed under Labor Code section 226.7 for meal and rest break violations constitute “wages.” The Naranjo et al. v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 102 (2022) decision had significant ramifications because it triggered related obligations for employers to report … Continue Reading

California’s War On The Fast-Food Industry Continues

By Tony Oncidi and Ariel Brotman on Posted in California Labor & Employment Law, California Labor Code, Joint Employer, New and Proposed Laws and Legislation
In the California Legislature’s latest attack on the fast-food industry, Assemblymember Chris Holden (D-Pasadena) introduced the Fast Food Franchisor Responsibility Act (“AB 1228”). AB 1228 was introduced shortly after a Sacramento County Superior Court judge issued a preliminary injunction to stop the controversial Fast Food Accountability and Standards Recovery Act or “FAST Recovery Act” (AB … Continue Reading

Court Obliterates California’s Anti-Arbitration Law

By Philippe A. Lebel and Morgan Peterson on Posted in Arbitration Agreements, California Labor & Employment Law, FAA, New and Proposed Laws and Legislation
Yesterday, a three-judge Ninth Circuit panel revisited its own 2021 order and finally struck down California’s anti-mandatory employment arbitration law, Assembly Bill 51 (“AB 51”).  In an opinion drafted by the former dissenting judge, Judge Sandra Ikuta, the new majority declared AB 51 was preempted by the Federal Arbitration Act (“FAA”). The statute in question, … Continue Reading

Los Angeles Court Orders Employer To Pay Whistleblower $2.3 Million In Attorney’s Fees On Top Of $24 Million Judgment

By Tony Oncidi and David Gobel on Posted in Attorney's Fees, California Labor & Employment Law, Gender discrimination, Verdict
A California judge has ordered Farmers Insurance to pay almost $2.3 million in attorney’s fees to the lawyers of a successful whistleblower/former in-house attorney who claimed his role as a potential witness in a sex bias class action got him fired. The underlying judgment in favor of the whistleblower was $24.36 million – after the … Continue Reading

Court Puts New Controversial Fast-Food Worker Law on Hold

By Philippe A. Lebel and Michelle Lappen on Posted in California Labor & Employment Law, California Labor Code, Collective Bargaining, Minimum Wage, New and Proposed Laws and Legislation, Wage and Hour
On January 13, 2023, a Sacramento County Superior Court judge issued a preliminary injunction to stop the controversial Fast Food Accountability and Standards Recovery Act or “FAST Recovery Act” (AB 257) from taking effect, pending a vote by California voters.  Previously, on December 30, 2022, the court had issued a temporary restraining order against the … Continue Reading

IRS Increases Mileage Rate for 2023

By Kate Gold and Ariel Brotman on Posted in California Labor & Employment Law, California Labor Code, Expense Reimbursement, Wage and Hour
On January 1, 2023, the IRS mileage rate increased to 65.5 cents per mile for driving done for business purposes.  This is a three (3) cent increase from the rate set for the second half of 2022.  According to the IRS, this rate applies “to electric and hybrid-electric automobiles, as well as gasoline and diesel-powered … Continue Reading

Layoffs Accelerate As Employers Struggle with Record Inflation

By Tony Oncidi and Ryan McGill on Posted in ADA, ADEA, California Labor & Employment Law, News, WARN Act
As the economy continues to struggle amidst the ravages of 40-year-high inflation, employers are finding it increasingly difficult to maintain their current staffing levels. While the tech industry has been the epicenter for layoffs thus far, a growing number of industries are being affected as well, including banking, financial, and legal services, and media outlets. … Continue Reading

California Labor Commissioner Releases Pay Transparency FAQs

By Tony Oncidi and Ryan McGill on Posted in California Labor & Employment Law, Equal Pay Act, Hiring, New and Proposed Laws and Legislation
As we previously reported here, California employers with 15 or more employees are required to post salary ranges on job postings as of January 1, 2023 (i.e. next week!). The Labor Commissioner has provided additional guidance as to how these requirements will be interpreted. The law requires employers to post pay scales on all job … Continue Reading

California’s Civil Rights Department Adds More Detail to Regulations Regarding Consideration of Applicants’ Criminal History

By Philippe A. Lebel and Michelle Lappen on Posted in Background Investigations, California Labor & Employment Law, FEHA, Hiring
In the weeks and months since it changed its name from the Department of Fair Employment and Housing to the California Civil Rights Department (“CRD”), the agency has been busy.  Most recently, the CRD released proposed modifications to the regulations under the Fair Employment and Housing Act (“FEHA”) related to the use and consideration of … Continue Reading
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