SDEA’s 45th Annual Employment Law Update Recap

To give you a little taste of what you missed, please read the recap below:

Chris Olmsted, Shareholder at Ogletree Deakins, started off the morning with a California Legislative Update.  The acronym of 2025 is PAGA, Private Attorney General Act.  PAGA allows plaintiffs to seek millions in civil penalties for violations of the Labor Code and Wage Orders.  Chris shared that California legislature introduced PAGA Reform via two bills, AB 2288 and SB 92, that were signed into law effective July 1, 2024.  Changes to the original PAGA, which are good news for employers, include capped penalties, reduced penalties for technical wage statements, reduced penalties for isolated errors and the prevention of stacking of penalties.  Chris encouraged regular audits for all employers to include meal and rest periods, overtime, recording keeping, pay stubs, and regular rate of pay calculations.  Other legislation that Chris covered included SB 399 – Captive Audience Meetings that limits an employer’s ability to communicate with employees regarding political or religious maters during mandatory meetings; SB 2200 – Driver’s Licenses that makes it an unlawful employment practice to include a statement that an applicant must have a driver’s license, with exceptions, one being that driving is a requirement of the job.  The several other bills that Chris shared included AB 2499 – Victims of Crime Leave that expands the list of crimes employees can take time off for and the fact that employees can use paid sick leave for such absences.

Attendees then heard from Evan Pena, partner at Quarles Brady, who shared Key 2024 Cases Every Employer Should Know About.  Evan covered several important topics for the attendees.  He started with harassment, discrimination and retaliation.  One case Evan discussed showed that a single incident of harassment can amount to severe or pervasive harassment.  Importance here is to take every complaint seriously.  Employers may think, “it’s only a one-off instance” but Bailey v. San Francisco Dist. Attorney’s Office showed us otherwise by entering into a settlement due to a one-off racial slur.  While California must provide leaves in certain circumstances when it comes to pregnancy, loss of pregnancy, reproductive issues, etc., in a case Evan shared, Paleny v. Fireplace Productions U.S., Inc., resulted in a verdict and clarification for employers, that fertilization procedures and egg retrievals are not protected under the FEHA (YET, as emphasized by Evan).  Reasonable Accommodations are always an area of concern and confusion for employers.  Evan discussed the importance of getting the employee’s treating physician involved when engaging in the interactive process to determine a reasonable accommodation for medical reasons, but that the doctor does not determine the accommodation; their job is to document the restrictions and how they affect the employee’s ability to perform the essential functions of the job.  Serving as a good reminder for all, another case Evan shared, Okonowsky v. Garland, where an employer was sued for their employee’s off-duty conduct.  In this case a male corrections Lieutenant with whom Okonowsky worked, posted harassing content on his personal Instagram account, including sexually harassing and violent posts that referred specifically to Okonowsky.  Employer was found liable for not investigating the complaint, stating that the conduct was not during work hours or on working premises.