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    Jonathan Judge advises employers in various labor and employment law matters, including drug testing, mass layoffs (WARN), disparate impact analysis, immigration compliance, trade secrets, privacy, technology in the ...

As the #MeToo Movement placed a glaring spotlight on sexual harassment in the workplace, outgoing California Governor Jerry Brown signed several bills aimed at curbing sexual harassment last year, including SB 1343.

With the passage of AB 2605 earlier this year, employees covered by specific Collective Bargaining Agreements (“CBAs”) who hold a “safety-sensitive” position at a petroleum facility are now exempt from certain California rest and recovery period requirements. This bill is a legislative response to the highly criticized Augustus v. ABM Security Services, Inc. 2 Cal.5th 257 (December 22, 2016) decision. In Augustus, ABM Security required its security guards to keep their radios on during their rest and recovery periods in case of an emergency. The plaintiffs argued that this “on-call policy” required them to not be relieved of all duty, and therefore unlawfully denied their right to a rest period. The California Supreme Court agreed, holding that being “on call” requires employees to remain “at the ready” and therefore unable to fully engage in personal activities.

On November 6, 2018, a majority of Californians voted “Yes” on Proposition 11, which will allow private sector emergency ambulance employees, specifically, emergency medical technicians (EMTs) and paramedics, to remain “on-call” during their meal periods and rest periods so they can respond in case of an emergency. 

Effective January 1, 2019, construction workers covered by certain collective bargaining agreements (“CBA”) will be exempt from the Private Attorneys General Act of 2004, commonly referred to as PAGA. 

On October 22, 2018, the California Court of Appeal followed the California Supreme Court’s guidance in Dynamex, and differentiated between a taxi driver’s Industrial Welfare Committee Wage Order claims, and non-Wage Order claims. (Garcia v. Border Transportation Group, LLC (D072521, Court of Appeal, 4th App. Dist. Div. 1).  In line with the Supreme Court’s decision, the Court of Appeal applied the ABC independent contractor test to Wage Order claims, while leaving other wage and hour claims for evaluation under the multi-factor Borello test.  The Wage Orders regulate basic working conditions for California employees, including minimum wage, meal breaks, and rest periods.

California’s Fourth Appellate District, Division One, recently upheld a trial court judgment in favor of Certified Tire and Service Centers (“Certified Tire”), finding the company’s compensation system for its tire technicians complied with California’s wage and hour laws.

This summer, Governor Jerry Brown signed Assembly Bill 2282, which resolves ambiguities created by prior pay equity legislation AB 1676 (2016) and AB 168 (2017).  As you may recall, AB 168 prohibits questions on applications and during interviews regarding salary history.  The law also requires employers to provide a pay scale upon demand by applicants.     

The DFEH recently released its Sample Equal Opportunity Policy. The Sample Policy is available in PDF and Word form on the DFEH’s employment resources page at https://www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/?target=employment.

On July 5, 2018, U.S. District Judge John Mendez of the Eastern District of California struck down two provisions of AB 450 (United States v. California (No. 218-cv-490-JAM-KJN)).  Judge Mendez held that the U.S. government is likely to succeed on the merits in challenging parts of AB 450 that barred employers from voluntarily consenting to federal enforcement agents’ access to nonpublic areas of business, and barred employers from voluntarily allowing immigration agents access to employee records.  Further, Judge Mendez struck down the provision prohibiting employers from re-verifying a worker’s employment status, but upheld one part of AB 450, requiring that employers post notice of any inspections of employment eligibility documents.

On June 25, 2018, a California court of appeal offered employers who use rounding systems to calculate employee payroll a reassuring ruling, approving a policy that rounded employee’s time to the nearest quarter hour. In AHMC Healthcare, Inc. v Superior Court (2018) No. B285655, the issue arose out of AHMC Healthcare’s use of a payroll system that automatically rounded employee hours up or down to the nearest quarter hour prior to calculating wages and issuing paychecks (instead of using the employee’s exact check-in and check-out times). Emilio Letona and Jacquelyn Abeyta, both employees of AHMC Healthcare, brought a class-action suit against AHMC Healthcare, Inc. for failure to pay wages and failure to furnish timely and accurate wage statements. The plaintiffs claimed this rounding system was in direct violation of the Labor Code, and presented evidence of time records from San Gabriel Valley Medical Center L.P. (where Letona was employed) and AHMC Anaheim Regional Medical Center L.P. (where Abeyta was employed).

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