Individual Liability for California Wage-and-Hour Violations: Developments on California Authority in 2017

Can employees sue individuals for wage-and-hour violations? That is the question numerous trial courts have been asked since the enactment of California Labor Code section 558.1 (“Section 558.1”) in 2016. Unfortunately, no binding authority on the question exists yet, but several trial courts have concluded that employees can.

Under Section 558.1(a), “[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated,” several labor code provisions, “may be held liable as the employer for such violation.” The term “other person acting on behalf of an employer” means any person who is an owner, director, officer, or managing agent of the employer. Lab. Code § 558.1(b). Generally speaking, managing agents are corporate employees who exercise substantial independent authority and judgment so that their decisions ultimately determine corporate policy; in other words, “managing agents” aren’t necessarily just company executives.

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DOL Announces Minimum Wage Increase for Federal Contractors

On September 15, 2017, the U.S. Department of Labor (“DOL”) announced the 2018 minimum wage rate for covered federal contractors and subcontractors, as required by Executive Order 13658.

Beginning January 1, 2018, the minimum wage for covered contractors will increase from $10.20 per hour to $10.35 per hour. The minimum cash wage for tipped employees performing work on or in connection with a covered federal contract will also increase from $6.80 per hour to $7.25 per hour, effective January 1, 2018. If the worker’s tips combined with the required cash wage of at least $7.25 per hour do not equal the minimum rate, then the contractor must increase the cash wage paid to a tipped employee to bring him or her up to $10.35 per hour.

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Beware: NYC Ban on Asking for Salary History Effective on Halloween: Employers Receive Guidance on Implementation

By Lynne Anne Anderson and Vik Jaitly

As we wrote about in April, starting on October 31, 2017, a NYC law will make it unlawful for employers of any size to inquire about a job applicant’s salary history during the hiring process by either: (1) asking about compensation history on a job application or during the interview process; or (2) conducting internet or other searches, contacting prior employers or running background checks in an effort to determine the applicant’s compensation history. Employers can only use an applicant’s compensation history to build a job offer if the applicant “unprompted” and “willingly” discloses that information.

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California’s Ban on Salary History Inquiries Takes Effect January 1, 2018

By Lynne Anne Anderson, Kate S. Gold and Irene M. Rizzi

California joins Delaware, Massachusetts, Oregon and several municipalities, including New York City and San Francisco, by banning inquiries into salary history. Aimed at combating wage disparity based on gender, the new law (AB 168), to be codified at Labor Code section 432.3, prohibits employers from seeking or relying upon salary history information.

Ban on Seeking Salary History Information

AB 168, which goes into effect on January 1, 2018, prohibits employers from seeking salary history information about applicants for employment. Specifically, employers may not, orally or in writing, seek salary history information, which includes compensation and benefits. The new law also prohibits employers from seeking such information through agents such as headhunters or recruiters.

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Confidentiality and Nondisclosure Agreements (CA)

Mark Terman and Sujata Wiese authored a practice note for Practical Law titled “Confidentiality and Nondisclosure Agreements (CA).” In their note, Mark and Sujata discuss how companies can protect their information, including the use of confidentiality agreements, under California law.

Mark and Sujata address considerations involved in safeguarding a company’s confidential information, and substantive provisions and issues common to many commercial confidentiality agreements. They state that “having effective confidentiality agreements in place with other parties is necessary but not sufficient to protect an organization’s confidential information and data. Comprehensive protection requires the participation and coordination of management and staff at all levels across all functions, from finance and administration to marketing and sales. It often falls to the legal department, working closely with the information technology (IT) function and with the support of senior executives, to lead the company-wide information management and protection program.”

Topics addressed in the note include: company-wide information and data security policies; compliance with contractual obligations governing others’ confidential information; trade secrets; privacy and data security laws and regulations; and form, structure and key provisions of confidentiality agreements.

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Part VIII of “The Restricting Covenant” Series: (Non) Solicitation, Social Media Networking, and Sales Representatives

By Lawrence J. Del Rossi

This eighth article in “The Restricting Covenant” Series discusses some recent trends in the evolving area of restrictive covenant law, non-solicitation agreements, and Internet social media networking, including sales representatives’ use of LinkedIn to contact and communicate with customers and other business relationships.

Rolodex Redux

A decade or so ago, social media networking platforms on the Internet were new to me. I had just heard of this thing called “LinkedIn” as a new way to connect with my former classmates and other acquaintances. It was touted as an easy, cost-free way to communicate with them about my professional accomplishments and career developments. In many ways, your LinkedIn profile is your virtual resume to the world. Therefore, like millions of others, I created a LinkedIn profile, sent and received connection requests, and made posts.

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