The California Court of Appeal in Meda v. AutoZone, Inc. recently reversed a trial court’s finding that an employer demonstrated it “provided” seats to its employees as a matter of law under California’s suitable seating requirement. This rule stems from subdivision 14(A) of the Wage Orders,[1] which provides that California employers must provide suitable seats to employees “when the nature of the work reasonably permits the use of seats.” In Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016), the California Supreme Court set forth the fact-intensive framework and multiple factors in analyzing whether the “nature of the…
Continue Reading Are You Sitting Down for This? California Court of Appeal Provides Further Guidance on Suitable Seating Claims

Following a nationwide trend, New Jersey recently joined a growing list of states seeking to limit the use of non-compete and non-solicitation agreements by employers.
Continue Reading What Employers Need to Know About Newly Proposed Non-Compete Legislation in New Jersey

On July 13, 2022 the National Labor Relations Board (“NLRB” or the “Board”) announced that by May 25th, 2022 the number of union representation petitions filed with the Board surpassed the total number of petitions filed in all of Fiscal Year 2021. Representation petitions are requests to have the NLRB conduct an election to determine if employees wish to be represented by a union. During the first nine months of Fiscal Year 2022 (October 1-June 30), 1,935 representation petitions were filed with the Board. This represents a 56% increase from the 1,240 filed in the first three quarters of FY2021. The Board…
Continue Reading Union Election Petitions on the Rise, Total Number of FY21 Petitions Eclipses in First Three Quarters of FY22

San Francisco employers will soon be required to comply with an additional Ordinance providing San Francisco-based employees with paid leave during future public health emergencies. In the June 7, 2022 election, San Francisco voters passed Proposition G. It requires employers with 100 or more employees worldwide to provide up to 80 hours of paid public health emergency leave to San Francisco-based employees. The Ordinance will become operative on October 1, 2022. …
Continue Reading San Francisco Ordinance Requires Employers to Provide Paid Public Health Emergency Leave

On June 13, 2022, the Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods Holdings, Inc, et al. that class members who were not yet employed by WinCo were not entitled to compensation for the time required to take a pre-employment drug test, nor was WinCo required to cover the travel expenses associated with undergoing the test.
Continue Reading Time Is Not Always Money: Ninth Circuit Holds That Pre-Employment Drug Testing Is Not Compensable Under California Law

Since President Biden’s July 2021 direction to the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” the FTC has ratcheted up its scrutiny of and investigations into non-compete agreements and other restrictive covenants. Now, the FTC has expanded beyond post-employment restrictive covenants to tackle “sale of business” non-competes. Most recently, the FTC voted in favor of a deal-changing proposed order against ARKO Corp. related to its 2021 acquisition of sixty fuel outlets from Corrigan Oil Company.
Continue Reading Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes

On June 6, 2022, a unanimous United States Supreme Court issued another key decision interpreting the Federal Arbitration Act (“FAA”) that will have a significant impact on certain employers going forward. In Southwest Airlines Co. v Saxon, the Court held that the airline’s cargo ramp supervisors were exempt from the FAA as they were a “class of workers engaged in foreign or interstate commerce.”

Background

The FAA exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from coverage. 9 U.S.C. § 1. The Supreme Court previously held that the…
Continue Reading United States Supreme Court Rules Certain Airline Employees Exempt From Federal Arbitration Act

On June 15, 2022, the United States Supreme Court issued its much anticipated decision in Viking River Cruises, Inc. v. Moriana. The Supreme Court held that California’s rule invalidating pre-dispute agreements waiving the right to bring “representative” claims under the Private Attorneys General Act of 2004 (PAGA) is partially preempted by the Federal Arbitration Act (FAA). The decision raises some difficult questions that will need to be resolved in future litigation, but it should provide employers with a powerful tool to limit PAGA claims.

PAGA and the Concepcion and Iskanian Decisions

To understand the Court’s holding in Viking River…
Continue Reading Supreme Court Holds That PAGA Representative Waivers Are Enforceable In Certain Significant Respects

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions.  Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws.  Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination,…
Continue Reading EEOC Issues Guidance Regarding How Employer Software and Artificial Intelligence May Discriminate Against Individuals With Disabilities

For those larger Illinois employers who have not yet reported payroll and diversity data to the Illinois Department of Labor (the “IDOL”), now may be the time.  The IDOL recently issued guidance to help employers navigate their reporting requirements (the “Guidance”).
Continue Reading Now is the Time for Employers to Report Pay Equity Data to the Illinois Labor Department

On July 13, 2022, San Francisco’s amended Family Friendly Workplace Ordinance (FFWO) goes into effect.  All employers who conduct business and have employees working in the City and County of San Francisco or employees who telework, will need to comply with the FFWO.  It gives employees the right to request “flexible or predictable work arrangements” to assist with caregiving responsibilities.  The amendment creates significant changes to the existing FFWO – it enlarges the scope of an employer’s obligation under the ordinance, while also making it easier for employees to obtain modified schedule arrangements so they can effectively work and perform…
Continue Reading Reminder: San Francisco’s Family Friendly Workplace Amended Ordinance Takes Effect July 2022

On May 23, 2022, in Naranjo v. Spectrum Security Services, Inc., P.3d (2022), the California Supreme Court issued an important wage-and-hour decision.  In Naranjo, the Court held that meal break premiums that an employer pays to an employee for missed, late, or short meal breaks constitute wages.  Consequently, an employer must report those premium payments on an employee’s wage statement pursuant to Labor Code section 226 and must promptly pay any owed premiums when an employee terminates employment or face waiting time penalties under Labor Code section 203.  Naranjo also concluded that the California Constitution’s default prejudgment interest rate…
Continue Reading California Supreme Court Holds Meal Period Premiums Are “Wages” and May Trigger Wage Statement and Waiting Time Penalties

On May 13, 2022, a law requiring publicly held corporations headquartered in California to have women on the board of directors was enjoined from being enforced and declared unconstitutional after a bench trial in Los Angeles Superior Court.  In Crest v. Padilla, a judge ruled that the law violated the Equal Protection Clause of the California Constitution because it created a suspect gender classification without a compelling state interest, and the law was not necessary or narrowly tailored to achieve the State’s goals of remedying gender discrimination or benefiting the economy. …
Continue Reading Court Enjoins Law Requiring California Businesses Have Women on Their Board of Directors