Labor & Employment Law Blog

On April 7, 2021, the Department of Labor (DOL) published new model COBRA notice forms as a result of the recent COBRA subsidy program created by the American Rescue Plan Act (ARPA).

On January 15, 2021, in the case of Scalia v. Department of Transportation and Public Facilities, 985 F.3d 742 (2021), the Ninth Circuit Court of Appeal decided that for an employee, who works a rotational schedule of seven days on, followed by seven days off, both his “on” and “off” weeks shall be used to calculate the length of “12 workweeks of leave” under the Family and Medical Leave Act of 1993 (FMLA).  As such, when a rotational employee takes continuous leave, both his on and off weeks count toward his “workweeks of leave” under Section 2612(a)(1) of the FMLA.

Beginning July 1, 2020, California’s family temporary disability insurance program, also known as the paid family leave program (“PFL”), will provide partial wage replacement benefits for up to eight weeks in any 12-month period, which is an increase from the maximum of six weeks presently available.  The benefits are available for employee who take time off to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption.  For purposes of new child bonding, California touts the expanded leave benefit as providing each family with a total of four months of PFL – two months per parent.

In December 2018, California announced the start of its CalSavers retirement savings program.  The program is available to California employees whose employers do not offer a workplace retirement plan, to self-employed individuals, and to others who want to increase their retirement savings.  Through this program, employees working for a participating employer may automatically contribute a portion of their pay to a Roth (post tax) Individual Retirement Account.  Individuals who do not work for a participating employer but want to save under CalSavers can set up recurring contributions. 

Natural disasters are something that many don’t think about until it’s too late, particularly in the context of their business obligations, but as extreme winds, wildfires, and power outages continue to pick up in California, employers should consider what obligations exist as to their employees and employment law.

In Melendez v. San Francisco Baseball Associates LLC (2019) S245607, the California Supreme Court recently held that a security guard’s state law claim for unpaid wages and “waiting time” penalties could proceed over his employer’s objections that they had to be resolved under his union’s agreement.  Because the employee’s claim was founded on a right existing in state law, and not the agreement, he was permitted to proceed with his claim in court even though the agreement was relevant to the claim and would have to be “consulted” and determining it.

George Melendez worked as a security guard at AT&T Park in San Francisco, and filed a lawsuit when he was not paid his final wages immediately after the end of each San Francisco Giant’s home stand, concert, or other event at the stadium that he worked at.  He primarily claimed that the Giants’ failure to pay him wages due at the time of termination entitled him to “waiting time” penalties of up to 30 days’ additional pay after the completion of each assignment.  He principally relied on a 2006 Supreme Court Case, Smith v. Superior Court (2006) 39 Cal.4th 77, which held that a hair dresser who was hired to work for only a single day was required to be paid at the end of that job. 

The Giants argued that there were numerous provisions in its collective bargaining agreement with the Service Employees International Union, Melendez’s collective bargaining representative, which showed that security guards were employed on a continuous year-round basis and were not terminated after single job assignments. These included provisions that classified employees based on the number of hours worked per year, provided for probationary period of 500 hours of work, and required drug screening for new hires. Because of these provisions, the Giants argued that Melendez’s claim was preempted by Section 301 of the Labor Management Relations Act,  because it required “interpretation and application” of the union agreement.

Relying on past cases, including the Ninth Circuit Court of Appeal’s 2000 decision in Balcorta v. Twentieth Century-Fox Film Corp. (9th Cir. 2000) 208 F.3d 1102, the Supreme Court rejected the Giants’ federal preemption defense.  The Court stated that not every claim that requires resort to the language in a labor-management agreement is necessarily preempted, and that this is particularly the case when the meaning of the contract is not in dispute.  The case at hand did not involve a dispute over the terms of the agreement that required a court to interpret them, and preemption could not be found based only on the fact that interpretation of the contract terms was required to determine the validity of the employer’s defense. Instead, because the legal character of the claim relied on a state law right that was not substantially dependent on the contract’s terms, the employee was permitted to proceed in court with his unpaid wages and waiting time penalty claim.

The Melendez case confirms the important principle that unless a claim under a statutory law is expressly made the subject of an agreement to arbitrate under a union agreement, or is clearly and unmistakably provided for in the arbitration clause of the agreement, such a claim may proceed even though the employer’s factual and legal defenses to the claim are based on the provisions of the agreement.

Clients with questions regarding this case or arbitration and grievance procedures in collective bargaining agreements may contact the author or their usual labor law counsel at Atkinson, Andelson, Loya, Ruud & Romo.

On January 1, 2018, the California Legislature enacted the New Parent Leave Act (“NPLA”). The NPLA expanded baby-bonding benefits to employees of smaller employers (20-49 employees), a benefit that had been previously available only to employees of larger employers (50 or more employees) under the California Family Rights Act (“CFRA”).

New Posting Requirement

Along with this expansion comes a new poster that discusses the NPLA, CFRA, and Pregnancy Disability Leave:

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/CFRA_PregnancyLeave_English.pdf 

All employers with 20 or more employees must display the poster.  The Department of Fair Employment and Housing (“DFEH”) requires that the posters be placed where they can be easily seen by employees and applicants for employment.

In addition, if 10% or more of the employer’s workforce at any given location speaks a language other than English, the employer is required to post the notice in such other languages.  The DFEH published several translated versions of the poster at its website:

www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/?target=posters

An employer must also incorporate a description of the NPLA in the next version of its employee handbook.

As an alternative to displaying multiple government-issued posters, some employers prefer to purchase and display an “all-in-one” poster from various sources.  Employers should review the posters to ensure they are up to date.

Medical Certification Form

The DFEH also recently updated the form that addresses the certification of a health care provider for leaves under the CFRA and the Family and Medical Leave Act (“FMLA”):

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/12/CFRA-Certification-Health-Care-Provider_ENG.pdf

Please contact the authors or your usual employment law counsel at AALRR if you have any questions regarding the DFEH, NPLA, CFRA, or other posting requirements.

California announced the debut of its CalSavers program this month, designed to help employees save for retirement when their employers are not able to offer participation in another retirement program.

Effective January 1, 2018, benefits under Paid Family Leave (“PFL”) and State Disability Insurance (“SDI”) increased for all income levels and the seven-day waiting period for PFL was eliminated.