Posts from October 2011.

Today, the California Department of Fair Employment and Housing issued a press release announcing the California Fair Employment and Housing Commission ordered an airline to pay over $325,000 to and to reinstate a former employee employed as a customer service agent based on the Commission's findings that the airline failed to reasonably accommodate the former employee's disability.

As we previously reported here, failing to comply with the requirements of Labor Code section 226 regarding the information that must be contained on wage statements (aka check stubs) can create significant liability for California employers. In defending numerous wage and hour class action lawsuits, one thing is constant.  Such lawsuits nearly always include allegations that the employer failed to provide employees with wage statements that comply with Labor Code section 226, which specifies nine items of information that must be stated on each wage statement. Such allegations take one or both of the following forms: (1) allegations that the employer did not pay employees for all hours worked and, therefore, failed to comply with the requirement of Labor Code section 226(a)(2) that wage statements show all hours worked and/or (2) allegations that the employer's wage statements fail to comply with the requirements of Labor Code section 226(a) in some other respect, such as failing to include the full name and address of the legal entity that is the employer as required by Labor Code section 226(a)(8).  

The California Labor Code Private Attorneys General Act of 2004 ("PAGA") permits an "aggrieved" current or former employee to seek on behalf of all other "aggrieved" current and former employees very sizable penalties for violations of many provisions of the California Labor Code and for violations of Industrial Welfare Commission Wage Orders. PAGA provides for penalties of $100 per employee per pay period for each initial violation and of $200 per employee per pay period for each subsequent violation. A successful PAGA plaintiff is entitled also to an award of his or her attorney's fees and costs, which can also be sizeable. Plaintiffs bringing class action wage and hour lawsuits now routinely include allegations that their claims fall under PAGA.

Most employers in California are subject to the workplace seating requirements contained in the Industrial Welfare Commission Wage Orders, which regulate wages, hours, and working conditions in specified industries and as to specified occupations. Wage Orders 1-13 and 15 all contain the following seating requirements:

As we previously reported here, on July 12, 2011, the California Court of Appeal held in  Brown v. Ralph's Grocery Company that the decision of the trial court denying enforcement of a class action waiver contained in an arbitration agreement between Ralph's Grocery Company and its employees was not supported by substantial evidence but held, also, that a provision of that arbitration agreement barring employees from pursuing claims under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") is unenforceable because, according to that court, the recent decision of  Supreme Court of the United States in AT& T Mobility v. Concepcion, previously discussed here, does not apply to representative actions brought under PAGA.  Further, the Court of Appeal remanded the case back to the trial court for a determination of whether the arbitration agreement is enforceable except for the PAGA waiver or is unenforceable in its entirety because of the PAGA waiver.  

Many California employers conduct consumer credit checks as part of the applicant screening process.The federal Fair Credit Reporting Act and the California Consumer Reporting Agencies Act regulate that process by, among other things, requiring employers to notify job applicants in writing that the employer intends to conduct a consumer credit check, requiring employers to obtain from applicants ...

The 2011 California legislative season closed on October 9, 2011, with the Governor signing numerous bills affecting employers and employment law. Among the bills the Governor signed are bills greatly limiting the use of consumer credit reports by employers, expanding the definition of gender under state discrimination laws, prohibiting local governments from requiring use of E-Verify except were ...

On July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods. This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations. 

Yesterday, the Supreme Court of the United States summarily disposed of the petition for a writ of certiori filed by Chinese Daily News, Inc., challenging the decision of the Ninth Circuit Court of Appeals affirming a $7.7 Million class action wage and hour verdict against Chinese Daily News. In a summary disposition, the Supreme Court granted the petition for certiori, vacated the judgment, and remained the ...

As previously reported here, in late August, the National Labor Relations Board confirmed the approval of a final rule which requires all employers under NLRB jurisdiction to post a Notice which will inform employees of their rights. Today, the NLRB issued a press release announcing that the date employers will be required to post the notice will be postponed to January 31, 2012 from November 14, 2011. The postponement follows push back from businesses and trade organizations after the final rule was published. The NLRB states that more time is needed for enhanced education and outreach to employers, especially small and medium sized businesses. The full press release may be read here.

As previously reported here earlier this year, the National Labor Relations Board ("NLRB") issued a complaint against a Chicago car dealership alleging the dealership violated Section 7 of the National Labor Relations Act ("NLRA") when it terminated an employee for posting on his Facebook page photographs and comments criticizing the dealership for serving only hot dogs and water to customers at a dealership sales event promoting a new model, and for posting photos from an accident that occurred at an adjacent dealership. On Wednesday, September 28, 2011, an Administrative Law Judge ("ALJ") ruled that the dealership did not wrongfully terminate the employee for the Facebook postings.  However, the ALJ found that the employer had several overly broad handbook policies that unlawfully restricted employees' Section 7 rights. The ALJ ordered the employer to post a notice informing employees of their rights to engage in protected activity.  

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