7.24.24
By Jennifer Jacobus, PHRca, SDEA CEO
Missed our mid-year Employment Law Update? No worries, we have you covered! Here is a re-cap of some of the information that Chris Olmsted, Shareholder with Ogletree Deakins, shared with the group.
The first thing Chris talked about was pending changes to PAGA (Private Attorney General Act). Good news (finally) for employers! Two bills were introduced in California, AB 2288 and SB 92. These bills only allow the plaintiff to sue for violations “personally suffered” and provide a one-year statute of limitations. Another benefit for employers is that they adjust penalties based on whether violations were isolated or recurring, knowing/willful, corrected/cured before or after notice, and/or caused or could cause actual harm. The bills also provide for early resolution/settlement.
This helps employers because it reduces the scope in which employers can be sued and allows attorneys to file claims only on behalf of those who have actually been harmed by their employers – an area where the courts have been a bit lenient in the past.
Background Checks specific to criminal history continue to be a point of legislation with pending SB 1345. This bill would further prohibit a hiring employer from considering applicant criminal histories. There would be narrow exceptions for “business necessity” which would be difficult to meet.
It wouldn’t be a “law update” without discussing what’s new with arbitration agreements. Two “trends” Chris is seeing in court are:
Trend #1: Arbitration agreements do not stop PAGA claims. PAGA cases still get to go to court.
Trend #2: When arbitration claims do come forward, the arbitrator’s fees, deposits, etc., must be paid ASAP. If fees and costs are not paid within 30 days after the due date, the business waives its right to go to arbitration and a judge and jury will determine the outcome.
Wage and hour cases are always an area of concern for employers. Chris shared two cases; Corral v. Staples the Office Superstore LLC, and Rivera v. Ryder Integrated Logistics, Inc., in which recent court decisions demonstrate that employee attestations regarding time entries and meal/rest breaks can help limit, or defeat, class action and PAGA claims. (Are we seeing a theme here?)
Indoor Heat Regulations are new for employers that have staff working indoors. Employers are required to, in part, reduce temperature below 82 degrees when employees need to wear clothing that restricts heat removal and reduce temperature and heat index to below 87 degrees when employees are present.
While non-competes have been unenforceable in California for some time, Chris shared that new case law shows that California will not enforce non-competes entered into in other states. Additionally, by February 14, 2024, employers must notify current and former employees that a previous, unenforceable, noncompete clause or agreement is void. Some FAQs that Chris covered on this topic included: 1) Can non-compete agreements include non-solicitation of customers? No, BUT employers can prohibit use of trade secrets – and customer lists can sometimes be trade secrets; 2) Can non-compete agreements include non-solicitation of employees clause? Unclear but risky to continue including them; and 3) Uh oh. I didn’t send the required notice in February. Should I do so now anyway? YES
While we’ve all gotten a lot of information on the new mandatory Workplace Violence Prevention Program (WVPP) that applies to virtually all California employers, Chris did remind everyone of the July 1, 2024 deadline.
Employers must implement written WVPP and employee involvement in developing and implementing the plan is crucial. Each employee must understand the plan, procedures, and their roles; training materials, content and vocabulary must be provided at the educational level, literacy, and language of employees; and an opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan should be part of the training.
Chris concluded with some reminders:
Make sure you are paying your exempt employees a salary that is at least 2x the CA minimum wage
- CA law requires that exempt employees be paid 2x CA minimum wage
- January 1, 2024, CA hourly minimum wage increased to $16.00
- $1,280 per week, or $66,560 annually
Deadline for CA Pay Data reporting was May 8, 2024
NEW Wage Theft Prevention Act Notice Labor Code 2810.5 for non-exempt employees
- New form 2024: https://www.dir.ca.gov/dlse/lc_2810.5_notice.pdf
- Includes new sick pay info and also “emergency of disaster disclosure.”
We hope you are able to join us at our next update. The information provided by our experts is invaluable. In the meantime, if you have questions on this or anything else, call us at 858-505-0024. We are not just here for you, we are HeRe with you.