On November 15, 2021, the West Hollywood city council enacted an ordinance that establishes a local minimum wage, and requires employers to provide paid and unpaid leave benefits. On May 16, 2022, the city council approved amendments to the ordinance and published Administrative Regulations (637879708613130000 (weho.org)) regarding the law, discussed below.

The ordinance’s minimum wage and leave benefits are restricted to only hourly, non-exempt, employees. There are also exceptions available for unionized employees subject to a collective bargaining agreement. 

Supreme Court Lowers the Bar for Plaintiffs to Establish Waiver of Right to Arbitrate Due to Employer’s Delayed Motion to Compel Arbitration 

On May 23, 2022, the U.S. Supreme Court issued a unanimous decision in the case of Morgan v. Sundance, Inc., which held a party’s waiver of the right to arbitrate a dispute by virtue of a delay in seeking enforcement of the arbitration agreement, no longer requires a showing of prejudice to the party opposing enforcement of the arbitration agreement. Prior to this, the circuit courts followed the rule of determining whether prejudice existed prior to finding waiver. After the Morgan decisionthe analysis reverts to the standard contract waiver analysis “focus[ing] on the actions of the person who held the right; ... [rather than] the effects of those actions on the opposing party.” This new rule applies whenever a party seeks to stay litigation and enforce an arbitration agreement under the Federal Arbitration Act (“FAA”).

The federal Fair Credit Reporting Act (“FCRA”) permits background checks for employment purposes, so long as employers obtain authorization from and provide the appropriate “stand-alone” disclosure to the applicant or employee regarding the background check, among other requirements. Willful violations of the FCRA’s stand-alone disclosure requirement can lead to recovery of statutory damages ranging from $100 to $1,000 per violation. Thus, a central issue in FCRA cases is whether the employer’s violation is “willful,” which requires a showing that the defendant’s conduct was “intentional” or “reckless.” 

Categories: Litigation
Tax Implications - Employee Use of Employer-Provided Vehicles for Personal Commuting

It is not uncommon for employees who use employer-provided vehicles during their workday, to also use the employer-provided vehicles for commuting to and from their work location, and/or to continue using the employer-provided vehicle for personal use during non-work hours.  In general, employee use of employer-provided vehicles after working hours may subject employees to taxable wages in the form of additional compensation, or “fringe” income; notwithstanding situations where the employee is generally on-call, and/or is expected to respond to emergency situations from their home or other non-work locations.

In response to the COVID-19 pandemic, California passed the “Right to Recall” law, which requires employers in the building services and hospitality industries to offer laid-off employees an opportunity to be rehired before hiring a new employee to fill the position.  Now that most businesses and companies are ramping back up and returning to work, employers covered by the Right to Recall law must ensure compliance with California’s recall requirements or face steep penalties. 

California’s Department of Industrial Relations Issues the 2022 Supplemental Paid Sick Leave Model Notice and Frequently Asked Questions

California’s new statewide supplemental paid sick leave (SPSL) law, SB 114, went into effect on February 19, 2022. SB 114 required the State’s Labor Commissioner to issue a “model notice,” which employers must then post in the workplace or, if an employer’s employees do not frequent a workplace, the employer must distribute the notice electronically (such as by email). On February 16th, the Labor Commissioner issued the new model notice, which is available here.

U.S. Supreme Court Stays Federal OSHA’s Large Employer COVID-19 Vaccine and Testing Mandate; CMS Mandate Upheld

On January 13, 2022, the U.S. Supreme Court stayed the federal Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), which required large employers (with 100 or more employees) to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing. The Supreme Court’s ruling stayed the vaccine and testing mandate on the basis that OSHA had exceeded its authority in enacting the emergency rule (and that those challenging the mandate were likely to succeed). The Court described the federal ETS as “a significant encroachment into the lives—and health—of a vast number of employees.” Enforcement of the OSHA rule is currently on hold, pending further litigation on the merits.

With the start of the holiday season comes the inevitable question for employers: What are we going to do for the holiday party?  Perhaps the only positive note from the global pandemic of the past two years is the fact that HR departments were not faced with this question in 2020 due to stay-at-home orders and statewide COVID-19 surges.

Tags: Vaccines
California’s SB 331: New Restrictions on Employee Separation Agreements and Non-Disparagement and Confidentiality Provisions

On October 7, 2021, Governor Newsom signed SB 331 to place additional restrictions on employers offering severance agreements and settling employment claims alleging harassment, discrimination or retaliation based on purported violations of the Fair Employment and Housing Act (“FEHA”). The new law, which is effective January 1, 2022, expands California’s current legal restrictions under California Code of Civil Procedure Section 1001. Currently, CCP section 1001 prohibits various confidentiality and non-disparagement clauses in settlement agreements, specifically those that would prevent disclosure of factual information relating to claims of sexual assault, sexual harassment, workplace harassment or discrimination based on sex, or retaliation against a person for reporting such acts.

According to various reports, federal OSHA will release proposed regulations regarding the vaccine mandate for employers with 100 or more employees in the near future.  While such guidance has been eagerly anticipated in the employment community for weeks, California employers will have to wait for further guidance from Cal/OSHA, which has jurisdiction over most California workplaces.  Cal/OSHA recently revised its FAQs as follows: 

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