In 2020, the National Labor Relations Board (“Board”) (controlled by President Trump appointees) issued two opinions (Baylor University Medical Center (369 NLRB No. 43) (“Baylor”) and IGT d/b/a International Game Technology (370 NLRB No. 50(“IGT”)) which made it easier for employers to present employees with or enforce severance packages and other agreements containing confidentiality and non-disparagement provisions.

On February 15, 2023, the Ninth Circuit Court of Appeals issued its opinion holding that AB 51 is preempted by the Federal Arbitration Act (“FAA”) and, therefore, unenforceable. The opinion is the most recent legal step in a fairly complicated history of the federal court’s rulings on AB 51.

In Helix Energy Solutions Group, Inc. v. Hewitt, Case No. 21-984, the United States Supreme Court held that an offshore oil rig supervisor who was paid nearly $1,000 for each day he worked was not exempt from the Fair Labor Standards Act (“FLSA”) because he was not paid a predetermined amount per week and, thus, was not compensated on a “salary basis” in accordance with applicable regulations. As a result, his employer was held liable for plaintiff’s overtime pay.

California employers are prohibited from passing on their business expenses to their employees: if an employee uses their personal cell phone to clock in and out, receive or make work-related calls, receive, view or send work-related text messages, the California Labor Code obligates their employer to reimburse those employees a “reasonable” percentage of their employee’s cell phone bill for the employee’s work-related use. Plaintiff’s attorneys argue that it is not enough to simply prohibit employees from using their cell phone for work. Rather, the obligation arises when the employee is required or expected to use their cell phone for work purposes.

In practicing law, staying Ahead of the Curve is critical. That's what we do. Scali Rasmussen, PC, has collated all of the new case law for last year, categorized by area of practice. If you want to stay ahead too, take a look.

We previously reported on the regulations issued for California employers regarding criminal history inquiries. The regulations took effect July 1, 2017. That prior article outlined existing regulations. These regulations have now been updated. Specifically, in December of 2022, the California Civil Rights Department (“CRD”), formerly known as The Department of Fair Employment and Housing (“DFEH”), released its proposed modifications to the 2017 regulations in the Fair Employment and Housing Act (“FEHA”) regarding the legal use of a job applicant’s criminal history.

Up until a few years ago, only employers with 50 or more employees were required to provide sexual harassment training. Starting January 1, 2021, a new law required all employers with only 5 or more employees to provide such training. We previously detailed the requirements of this training, which requires one hour of training for non-supervisory employees and two hours for managerial/supervisory employees, but one important reminder is that the training must be renewed every two years.

In 2021, we reported that the California Supreme Court held that employers must pay meal and rest break premiums (for missed or noncompliant breaks) at the regular rate. This is simple to calculate for an employee earning a standard hourly rate for every hour worked. However, the appropriate calculation is more complex for employees who earn commissions, piece rate (flag or flat rate pay), or other nondiscretionary compensation.

When an employee requests significant time off for health reasons, most employers are aware of their obligations to consider family and medical leave requirements. However, short term leave requests paid out via accrued vacation or sick leave can fly under the radar. Employers are cautioned to remember that even short-term requests for 1-2 weeks off for health reasons qualify for potential FMLA or CFRA leave. If an employee brings such a request, even if it is otherwise paid for by accrued paid time off, employers are obligated to provide a Notice of Eligibility and Rights and Responsibilities within 5 business days of the request – even if the employee does not qualify for FMLA/CFRA leave.

On Friday, January 27, 2023, California Attorney General Rob Bonta announced an investigative sweep, sending letters to businesses with mobile apps that fail to comply with the California Consumer Privacy Act (CCPA).