The last two months have been busy for the question of who decides the scope of a class claim in arbitration when the arbitration does not specifically allow or prohibit such a proceeding. On October 9th the California Court of Appeal for the Fourth Appellate District in Network Capital Funding Corporation v. Papke, disagreed with another panel of justices in the Second Appellate District in Sandquist v. Lebo creating a split. The justices in Sanquist held that the arbitrator should decide the question of what type of proceeding should be allowed class or individual because it was in essence a procedural process in the dispute. The justices in Papke disagreed instead looking at it in terms of contract interpretation. What did the parties agree to is a threshold question for the court to decide. They had both the 3rd and 6th Circuit Court of Appeals to back them up on their interpretation.
On November 12 the California Supreme court took up
On November 6, I was proud to introduce the Governor of the Great State of California to the delegates who were present at the Anti-Defamation League’s (ADL) National Meeting in Los Angeles. Having recently risen to the post of Board Chair of the Los Angeles Region, I was given this honor.
The Governor spoke for about 20 minutes, he was witty and engaging and demonstrated why he has been such a mainstay in California Politics for four decades. Among many topics he discussed he addressed the ADL on issues which center around stopping extremism and hate crimes. In our law enforcement outreach programs the ADL interacted closely with the Governor when he was Attorney General five years ago. Governor Brown participated and worked with the ADL in bringing white supremacists and others to justice. I was proud to be a part of this event and the ADL whose 101 year mission has been and continues to be, “to stop the defamation of the Jewish people and to secure justice and fair treatment to all.”
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Senate Bill 1314 Amends California’s Unemployment Insurance Code
Governor Jerry Brown signed SB 1314 on September 17, 2014, enacting legislation that extends the time period to appeal an award or denial of unemployment benefits by the Employment Development Department (EDD). Human Resources managers and employees alike look to take advantage of the additional time to evaluate claims and the related benefits of pursuing an appeal through EDD.
California’s Unemployment Insurance System
The Employment Development Department (EDD) administers California’s unemployment insurance system. California employers fund the unemployment insurance system using a predetermined percentage of their payroll tax payments. Employer payments are held by the EDD in a special reserve fund, which is used to pay unemployment benefits to employees who have become unemployed through no fault of their own. As benefits are debited from an employer’s reserve fund, the employer may begin to pay higher tax rates to replenish their fund.
Our previous post (New California Employment Laws for 2015 – part 1) covered three new employment laws passed during California’s 2014-2015 legislative session and subsequently signed by Governor Brown. Three more new laws are briefly described below, each with an effective date of January 1, 2015.
Penalties for Minimum Wage Violations to Include Waiting Time Penalties
Labor Code section 1197.1 lists various statutory penalties against employers who fail to timely pay wages of a resigned or discharged employee. Specifically, it authorizes employees to recover a civil penalty (as specified), restitution of wages, and liquidated damages. There are three ways to pursue such violations (e.g., through a “Berman Hearing” before the Labor Commissioner, through a civil action, or through a Labor Commissioner citation), but waiting time penalties under section 203 were available only under the first two methods (i.e., not for Labor Commissioner Citations). AB 1723 amends the law to authorize waiting time penalties for Labor Commissioner Citations as well.
Time Off for Emergency Rescue Personnel
Labor Code section 230.3 prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel. AB 2536 expands the existing definition of “emergency rescue personnel” to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. An employee who is a health care provider (as defined) must notify their employer at the time they become designated as an emergency rescue personnel, and when the employee is notified they will be deployed because of that designation.
California’s 2014-2015 legislative session ended August 31st, and a significant number of bills impacting employers were passed by the legislature. Governor Brown signed numerous bills sent to his desk covering various areas of employment law including discrimination, arbitration, and health and insurance benefits. A short summary of three of these new laws are highlighted below. The effective date for each of these laws is January 1, 2015, unless otherwise noted.
Unpaid Interns and Volunteers Now Protected from Discrimination and Harassment
AB 1443 amends the Fair Employment and Housing Act (FEHA) to extend harassment and discrimination protections to interns and volunteers. It amends Government Code section 12940(c) – which currently prohibits discrimination in apprentice training programs – to also preclude discriminating against interns and volunteers on the basis of any legally protected classification (e.g., race, religion, disability, etc.) and to prohibit sexual harassment of them, and to extend the existing religious belief accommodation requirements to them.
Retaliation Claim Dismissed When Employer Proves It Was Not Aware Of Whistleblowing Activity
A California federal district court recently held that absent evidence that an employer knew of the alleged protected activity, an employee cannot assert a claim under California’s whistleblower statute. In United States of America ex rel. Darryn Kelly v. Serco, Inc., the district court ruled in favor of Serco under both the False Claims Act and California’s retaliatory discharge provision codified at California Labor Code section 1102.5. The court not only rejected the relator’s claims, but it also resolved all issues in the employer’s favor on summary judgment.
Plaintiff Darryn Kelly was employed as an analyst by Serco, a federal contractor engaged to upgrade wireless communications systems along the U.S./Mexico border. Mr. Kelly complained to the Department of Homeland Security (DHS) that Serco had been engaging in what he believed to be fraudulent time tracking measures. Kelly claimed employees kept track of their time manually rather than through the required automated system, which resulted in inaccurate and fraudulent reports to the government. Kelly believed these practices violated ANSI 748, which is a set of guidelines that applies to certain government contractors.
Effective January 1, 2015, AB 2743 Establishes New Wage Payment Penalties for California Entertainment Industry
Assembly Bill No. 2743 expands the availability of wage payment penalties or “waiting time penalties” for employers and employees that are part of a collective bargaining agreement in the entertainment industry. Per Labor Code section 203, employers face a penalty of up to 30 days’ pay when they do not pay employees correctly and timely at termination of employment. Section 201.9 of the Labor Code allowed employers in the “live theatrical or concert” industry to pay final wages in accordance with a collective bargaining agreement. AB 2743 expands the availability of waiting time penalties to situations when the employer does not pay on time under that collective bargaining agreement.
AB 2074 – Recovery of Wages: Liquidated Damages
California Governor Jerry Brown signed a bill several weeks ago that revises the state labor law and provides additional protections to workers by allowing them more time to seek liquidated damages when pursuing claims against an employer for failure to pay minimum wage.
Also called “Recovery of Wages: Liquidated Damages”, AB 2074 was carried by Assemblyman Roger Hernandez of West Covina, and brings parity between the statute of limitations for minimum wage claims and the statute of limitations for liquidated damages on those claims. AB 2074 amends Section 1194.2 of the Labor Code relating to employment and in any action under Section 98, 1193.6, 1194 or 1197.1 seeking wage recovery for minimum wage violations, an employee may recover liquidated damages in an amount equal to the wages unlawfully unpaid, according to the bill.
“AB 2074 holds companies accountable for wage theft and simplifies the process for recovering illegally held wages,” Hernandez commented about his bill. “AB 2074 only targets businesses who fail to follow the law. It is crucial that we protect the rights of our lowest paid workers, prevent abuse and curb labor law violations in California.”
The measure gained support from several labor groups, including the California Labor Federation, Unite Here, and the California Federation of Teachers. No opposition was officially filed.