2016 Presidential Election Aftermath: What Can be Expected in the Labor & Employment Law Space

By Gerald T. Hathaway

We continue to analyze and assess what the 2016 election results mean in the Labor & Employment Law space, and what we can expect from a GOP White House, House and Senate.  The last two times that this GOP alignment was present were 1929 and 2007 (let’s hope that the financial events that followed those two occasions – the Great Depression and the Great Recession – do not repeat themselves this time around).

It is difficult to predict what President Donald J. Trump’s actual agenda will be, because his campaign was long on broad concepts and very short on serious, detailed policy presentation. While Candidate Trump said many things, including contradictory things, about many topics, some themes can be discerned from pre-election and post-election comments.  Also, some issues have been on the GOP wish list for some time, but until they could have the alignment of White House and Congress that will be in place in January, those wish list items, as a practical matter, were just wishes.  Here are our impressions about what changes will occur.

NEAR TERM

  • Affordable Care Act (Obamacare)

There will be a change, but it is not clear as to what the extent of the change will be, nor is the timing. Candidate Trump promised repealing and replacing the entire law.  But President Elect Trump has indicated that he wants to maintain coverage for dependents up to age 26, and to continue the mandate that previously existing conditions be covered.  If the statements of President Elect Trump are the desired results, the altering of the ACA then becomes quite complicated, because fundamental rules of underwriting will have to be respected (because the mandate for coverage was put into place to offset the costs of insuring pre-existing conditions, by having many healthy people in the pool of the insured).  This may be the subject of negotiation, but it will be within the GOP, to the exclusion of the Democratic Party (who may want nothing to do with any amendment, anyway).

There likely will be a push to allow insurance companies regulated in one state to offer insurance to residents of a different state, without being subject to regulation by the other state whose residents are being insured. Under that scheme, states desiring tax revenues from hosting insurance companies will lower their regulatory schemes, and the least regulated companies will be offering the insurance. (The Democratic Party may try and filibuster this particular issue).

  • Public Works: Possible Repeal or Major Modification of the Davis-Bacon Act

In his victory speech, President-Elect Trump made the following statement, which is similar to statements he made during the campaign:

We are going to fix our inner cities and rebuild our highways, bridges, tunnels, airports, schools, hospitals. We’re going to rebuild our infrastructure, which will become, by the way, second to none. And we will put millions of our people to work as we rebuild it.

We think that this initiative would invigorate the U.S. economy, particularly if there is a mandate for the use of materials made in the USA.  This initiative, however, may be opposed by the party he joined to run his Presidential campaign. We think that if they conclude that they must go along with this initiative, the GOP will realize that they may be in a place to do what was not so long ago unthinkable, and that is the repeal of the Davis-Bacon Act (or a substantial modification of it).  The Davis-Bacon Act requires “prevailing wages” to be paid for federal construction projects – which as a practical matter means union wages, which almost always results in the public projects being built by union contractors.  Prevailing wages are typically in the range of $50-$60 per hour, for wages and benefits.  If that requirement is removed, and non-union market wages are paid, the cost of constructing the new projects would be drastically reduced.  We think it likely that the GOP will make that trade, and the obvious benefit of spending so much money on local economies may well deter a Senate filibuster.  Given the drastic drop in union membership over the last few decades, it seems unlikely that the AFL-CIO has the muscle anymore to stop this.

  • New EEO-1 Form

Every year, the EEOC requires employers having 100 or more employees (50 if a government contractor) to file an EEO-1 form, which is a numerical census of the work force broken down by types of jobs, and the sex and race characteristics of those who hold them. Over the last year or so, the EEOC has been preparing a much more detailed form, which would require employers not only to give information about types of jobs, but salary bands of workers, broken down by sex and race.  Management interests have widely criticized the new form, both because of the magnitude of the task of collecting the data, and the low value of the data collected.  If the White House exercises its influence over the EEOC, which we expect it will, President-Elect Trump will likely direct that this new form be killed.

  • Increase in Race, Sex and Religious Discrimination Cases

Many were surprised by the rhetoric of the campaign, which included incendiary racial commentary that would be actionable if the commentary were tethered to workplace speech. Indeed the Trump campaign was openly supported by the KKK and other racial hate groups.  Since the election results were announced, both the FBI and the Southern Poverty Law Center have announced that hate crimes are being committed at new levels of frequency, and there is fairly widespread open and notorious anti-racial speech.  In this environment, one can expect open racial, sexual and religious hostility to reveal itself in the workplace, which will result in an increase of claims in response to that hostility, which may well include pattern and practice claims, and the return of race class actions.  Harassment training is the best answer for this problem, but the trainers had better be prepared for open push-back against notions of diversity.

  • Arbitration of Employment Claims and Class Action Waivers

There has been over the last three decades much back and forth as to what kind of employment claims can be forced into private arbitration, and whether there can be waivers of class action claims. The Congress can address this without fear of veto, and as a consequence there may be a legislative initiative to strengthen the Federal Arbitration Act with respect to employment and wage & hour claims, as well as some legislation permitting class action waivers.

  • Federal Regulations Review

Congress has had the power for twenty years to engage in filibuster-proof review of recently implemented federal regulations. Under the technical provisions of the Congressional Review Act (“CRA”) (enacted as part of Newt Gindrich’s “Contract with America” that followed the mid-term elections that occurred during President Bill Clinton’s first term), any regulation published as “final” after May 30, 2016 can be subject to review.  This date is estimated to be the cut-off date based on Congressional schedules currently in effect, and the actual cut-off date is subject to change.  An explanation of that the complicated process for determining the cut-off date for CRA review is here.

Rarely used in the past, because the President would likely veto any attempt to set aside a regulation put into effect by that President’s administration, the CRA likely will be used to set aside the August “blacklisting” rule applicable to government contractors, which requires federal contractors and bidders to disclose their labor violations to the government, as well as the sick-leave mandates applicable to federal contractors.

On the other hand, and apart from action on the part of federal courts, the new DOL Regulations elevating the salary levels for exempt, white-collar employees will remain in effect.  Since they were published as final on May 23, 2016, it currently appears that they will not be subject to the Congressional Review Act when the next Session of Congress takes place.  There is some wide-spread litigation seeking to block those regulations, and an update on that litigation is here.  As of November 23, 2016, a federal court injunction is in place blocking the implementation of the rule.

  • No Anti-Bullying Legislation

Despite the incoming First Lady’s recently announced campaign against cyber bullying, we are of the view that contemplated federal anti-bullying legislation will not happen.  This website likely will disappear: https://www.stopbullying.gov/laws/.  Many states will fill in the gap, likely led by California.

  • E-Verify

Employers must obtain I-9 forms from new employees to ensure that they are eligible to work in the United States. A streamlined way to verify the information given on an I-9 is E-Verify, the use of which is required for certain federal contractors.  It may well be that the requirements to use E-Verify will be expanded to include almost all employers.

MEDIUM TERM

In 2018, 33 senators will be up for re-election, but only eight of them are Republicans, and seven of those eight are in states that have long histories of voting the Republican slate. The other 25 senators are Democrats, or caucus with Democrats.  Many of those are from states that have been traditionally “blue,” but went “red” in 2016, among them:

Florida
Indiana
Missouri
Montana
North Dakota
Ohio
Pennsylvania
West Virginia
Wisconsin

So it is possible that in 2019, the Republican President will have a filibuster-proof Senate. If that happens, deregulation and repeal of a lot of labor & employment legislation will occur.  It is too early to tell which laws will be targeted.

In the meantime, states that have been deeply and historically blue will be passing laws to give protections that the federal government rolls back. While federal laws are generally pre-emptive, in the labor & employment space most laws are exempt from pre-emption, allowing states to provide greater benefits than the protections that are available under federal law.  The laws that are pre-empted relate to unionization and union affairs, and to ERISA pension & welfare benefits.

LONG TERM

If there is indeed a filibuster-proof GOP Senate, and there is a roll-back of labor & employment laws, we can expect employees to return to unionization, seeking protections from unions in the absence of protective federal laws.

We will update this list as our review of issues continues.

The EEOC’s 2017-2021 Strategic Enforcement Plan – Targeting the “Gig Economy” and Independent Contractor Misclassification

By Gregory W. Homer and Dennis M. Mulgrew

The EEOC has issued its new Strategic Enforcement Plan for the fiscal years 2017 to 2021, which outlines the areas in which the EEOC will focus its litigation and investigation resources in the next four years.  The Plan is notable for its emphasis on the “gig” workforce – that is, the short-term, temporary, or freelance workers (often working for companies like Uber, Lyft, AirBnb, or Taskrabbit) who are typically classified as independent contractors rather than employees.

In the Plan, the EEOC identified the rise of the “gig” economy as an “emerging and developing issue” warranting increased focus, particularly with regard to “clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy . . .”

Essentially, the Plan evidences the EEOC’s intent to crack down on companies seeking to avoid liability under the employment laws by misclassifying workers as independent contractors rather than employees.  The EEOC’s designation of misclassification as an enforcement priority is not entirely surprising, as it is in line with other recent statutory and regulatory developments in this area.  For example, as we noted here, last month California enacted AB 1897, which provides that employers using labor contractors, such as staffing agencies, will now “share with the labor contractor all civil legal responsibility and civil liability for all workers” supplied to company.  Similarly, both the DOL and the NLRB have issued guidance expanding the definition of a “joint employer,” making it more likely companies using contract labor will be considered an “employer” for the purposes of the employment laws, regardless of whether they label the work relationships as ones with “independent contractors.”

In light of these developments, companies may wish to evaluate their use of individual independent contractor relationships, to determine the extent to which an individual may properly be considered an employee rather than a contractor per the guidance above, and the attendant risk.  Similarly, companies indirectly using independent contractors, such as through staffing or “temp” agencies, would be well-served by evaluating their agreements with these agencies to ensure that they contain appropriate safeguards (including guarantees of wage and hour compliance, and perhaps indemnification agreements) to protect against the potential risk of a finding of “joint employer” status.

Careful, Your Website is Showing! Retailers Should Start Preparing for Website Accessibility Class Actions

By Kate S. Gold, Michael P. Daly, Bradley J. Andreozzi and Alexis Burgess

Retailers have been the predominant targets of a recent wave of demand letters claiming that their websites and mobile applications unlawfully discriminate against disabled customers. These demands come on the heels of the Department of Justice’s (DOJ) confirmation that, in 2018, it will propose accessibility standards for private businesses, based on the accessibility standards it has already proposed for public entities. Even with two months left in the year, 2016 has already seen more single-plaintiff and class action lawsuits actually filed against retailers on this issue than ever before. In the face of an increasingly active plaintiffs’ bar, any retailer with a commercial website or mobile application—especially those operating in California, New York, or Pennsylvania, where the majority of these suits have been filed—should take notice and prepare accordingly.

Title III of the Americans With Disabilities Act (ADA)

Title III of the ADA prohibits discrimination against persons with disabilities in “places of public accommodation”—a term originally construed to mean brick and mortar establishments like stores, restaurants, movie theaters, hospitals, and schools open to the general public. As the Internet has grown increasingly important to everyday life and commerce, however, plaintiffs have insisted that websites count among covered “places of public accommodation” as well.

Courts have varied in their approach to handling this influx of litigation. In the Ninth Circuit (which includes California), websites are not considered places of public accommodation unless there is a sufficient nexus between the online goods and services and a qualifying brick and mortar location. For example, the Northern District of California has held that Target’s website is a place of public accommodation because the same goods are sold online and in its physical stores, Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 954 (N.D.Cal.2006), while Facebook, which does not provide any of its services out of a physical location open to the public, is not. Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1114–16 (N.D.Cal.2011). The Third, Sixth, and Eleventh Circuits (which include states such as Pennsylvania, New Jersey, Michigan, and Florida) have similarly required at least a nexus to a physical location open to the public to qualify an enterprise as a place of public accommodation. Meanwhile, the First, Second, and Seventh Circuits (which include states like New York and Illinois, among others) have concluded that non-physical enterprises, including websites, may be places of public accommodation without this limitation.

The Department of Justice’s Anticipated 2018 Regulations

The DOJ has taken the position—which courts may consider but are not yet required to adopt—that commercial websites are generally subject to Title III, regardless of a nexus to a physical place of public accommodation. Consistent with this position, the DOJ issued an Advanced Notice of Proposed Rulemaking in 2010 announcing plans to issue proposed regulations to Title III setting standards of accessibility for public accommodations’ websites. Those proposed regulations are widely expected to be consistent with the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG 2.0 AA), which advocacy organizations have described as the minimum standards for how a website or mobile application should be coded and arranged to ensure it is accessible to the disabled, including primarily the visually and hearing impaired. Indeed, subject to potential exceptions for smaller entities or particular types of content, the DOJ indicated this summer that it plans to adopt the WCAG 2.0 AA standards wholescale in the Title II regulations that will soon govern public entities, and which the DOJ has confirmed will form the framework of its proposed regulations for Title III. The WGAG 2.0 AA standards are too numerous and complex to exhaust here, but include, for example:

  • Alternative text for images compatible with screen-reading software
  • The ability to navigate the website using a keyboard instead of only a mouse
  • Logical and consistent use of headings for ease of navigation
  • Closed captioning and sign language interpretation for audio features
  • Alternative audio description for video features
  • Not using color as the only visual means of conveying information, indicating an action, or prompting a response
  • Text that generally has a contrast ratio of at least 4.5:1
  • Limitations on flashing content which may cause seizures

Although the DOJ’s proposed Title III regulations have been delayed until 2018, this has not prevented plaintiffs from pursuing litigation in the meantime. To the contrary, plaintiffs’ attorneys appear to be leveraging the current uncertainty of this landscape to seek expedited settlements, including not only injunctive relief but also damages and attorneys’ fees.

What is the Potential Exposure for Non-Compliance?

Businesses sued for website inaccessibility face significant exposure. Plaintiffs who prevail in a Title III suit are entitled to injunctive relief and attorneys’ fees. ADA suits are often also accompanied by claims under applicable state law counterparts, such as California’s Unruh Act and Disabled Persons Act that impose significant statutory damages for every violation ($4,000 per violation or actual damages in California).

Because approximately half of the lawsuits being filed on this issue are class actions, these numbers—to say nothing of defense costs—can add up quickly. The seminal 2006 case of National Federation of the Blind v. Target Corp., for example, was the first to certify a class action to enforce Title III and related state laws against an online merchant. In 2008, the court approved a class settlement for $6 million and awarded over $3.7 million in attorneys’ fees.

Recommended Action Steps

It may be tempting to wait for the DOJ’s regulations before working to perfect website compliance. Getting a website up to speed can be time-consuming, however, and may require working with an attorney and a web-design consultant. Online retailers and service providers should get a head start now.

While expensive, many businesses may find that improving their website’s accessibility early will not only mitigate exposure, but will make good business sense, as well. Indeed, experts estimate that nearly 220 million Americans will regularly shop and do other business online in the coming year. Statistically, around 20 million of those shoppers will have at least some visual or hearing impairment. With coding that makes their online storefronts more accessible, retailers may ensure that their goods and services offered online are not out of these customers’ reach.

Under New OSHA Rules, Employers May Not Conduct Post-Accident Drug Tests Simply as a Matter of Course

By Laurie A. Holmes and Matthew A. Fontana

A mandatory drug and alcohol test after a workplace injury seems like a no brainer, right? Most companies believe so, which is why mandatory drug and alcohol testing after workplace injuries has become a common policy.  However, new Occupational Health and Safety Administration (“OSHA”) regulations on electronic reporting of workplace injuries cast doubt on the continued legality of such policies.  Specifically, OSHA’s new position is that mandatory post-injury testing deters the reporting of workplace safety incidents by employees and therefore employers who continue to operate under such policies will face penalties and enforcement scrutiny. In light of OSHA’s enforcement position, it is time for your company to review and revise its mandatory post-accident drug and alcohol testing policy.

Effective August 10, 2016,[1] OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries, and that procedure cannot deter or discourage employees from reporting a workplace injury. The final rule, which amends OSHA’s regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904), requires employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. Even though the content of these submissions depends on the size and industry of the employer, all employers are now required to: 1) inform employees of their right to report work-related injuries and illnesses free from retaliation; 2) clarify that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and 3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

While the text of the new regulation does not mention post-injury drug and alcohol testing, the comments to the final rule expressly address that subject and explain that “blanket post-injury drug testing policies deter proper reporting.”[2]  According to OSHA, substantial data supports their position that many workers have been deterred from reporting injuries to their employer because of their employer’s post-injury drug and alcohol testing policy.[3]  The comments further explain that an appropriate post-injury drug and alcohol testing policy must be limited to situations where “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”[4]  OSHA emphasized that the intent of the final rule is not to ban all post-injury drug and alcohol testing, but to require employers to “strike the appropriate balance” by “limit[ing] post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”[5]

In light of OSHA’s new position on mandatory post-injury drug and alcohol testing policies, employers should review their policies to determine if they are compliant. If your company’s policy requires mandatory drug and alcohol testing after the report of a workplace injury, the policy should be revised to limit its application to situations where there is a “reasonable possibility” that drug or alcohol use contributed to the injury. You do not need to specifically suspect drug or alcohol use before testing, but there should be a reasonable possibility, based on clearly articulable facts, that drug or alcohol use by the reporting employee contributed to the reported injury or illness. Failure to comply with OSHA’s new rules could result in serious penalties including $12,000 fines per violation and up to $120,000 fines for willful or repeat offenders.

In short, the new OSHA rule provides yet another example of how in the world of employment law, even the most seemingly uncontroversial policies can become potential pitfalls for the unwary employer.


1. While the effective date of the new rule is August 10, 2016, OSHA has indicated that it will not enforce the new rule until November 1, 2016 to provide employers with time to review and revise their policies to conform to the new rule.

2.  Occupational Health and Safety Administration, Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (codified 24 C.F.R. 1904).

3.  Id.

4.  Id.

5.  Id.

Summary of Key New California Laws for 2017: What Employers Should Know

By Pascal Benyamini

Governor Brown has this year signed several new laws impacting California employers, some of which have already gone into effect and others that will be effective or operative in 2017 or later. A summary of key new laws follows. The effective date of the particular new law is indicated in the heading of the Assembly Bill (AB) and/or Senate Bill (SB).[1] The list below is in numerical order by the AB or SB.

ABX2-7 – Smoking in the Workplace (Effective June 9, 2016)

By way of background, California law already prohibited smoking of tobacco products inside an enclosed at a place of employment for certain employers. This Bill amends Labor Code Section 6404.5 and expands the prohibition on smoking of tobacco products in all enclosed places of employment to all employers of any size, including a place of employment where the owner-operator is the only employee (i.e., owner-operated business). “‘Enclosed space’ includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building.” There are, however, certain exemptions. “Place of employment” does not include: (1) 20% of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment; (2) Retail or wholesale tobacco shops and private smokers’ lounges; (3) cabs of motortrucks; (4) theatrical production sites, if smoking is an integral part of the story in the theatrical production; (5) medical research or treatment sites, if smoking is integral to the research and treatment being conducted; (6) private residences, except for licensed family day care homes; (7) patient smoking areas in long-term health care facilities.

A violation this law is punishable by a fine not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for a third and for each subsequent violation within one year.

AB 908 – Paid Family Leave (Operative January 1, 2018)

Paid Family Leave (PFL) provides short-term benefits to eligible employees who lose wages when they need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner, or to bond with a new child entering the family by birth, adoption, or foster care placement.

This Bill revises the formula for determining benefits available to those eligible employees “for periods of disability commencing after January 1, 2018, but before January 1, 2022.” This Bill provides “a weekly benefit amount minimum of $50 and increases the wage replacement rate to specified percentages, but not to exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations pursuant to existing law.” Further, this Bill removes the existing seven-day waiting period for paid family leave benefits.[2]

AB 1066 – Wages, Hours and Working Conditions for Agricultural Workers (Effective January 1, 2017)

Currently, agricultural workers who work more than 10 hours per day are to receive overtime pay at one-and-half times the regular rate of pay. This Bill, known as the Phase-In Overtime for Agricultural Workers Act of 2016, amends Labor Code Section 554[3] and provides that a gradual phase-in of overtime to agricultural workers. For employers with 26 or more employees,[4] beginning on January 1, 2019, and continuing until January 1, 2022, the phase-in provides for a reduction of half-hour per day per year until reaching 8 hours (or 40 hours per week). As such, beginning on January 1, 2019, agricultural workers working more than 9 ½ hours per day or in excess of 55 hours in any one workweek are to receive overtime pay at one-and-half times their regular rate of pay. And so on until January 1, 2022, agricultural workers working more than 8 hours per day or in excess of 40 hours in any one workweek are to receive overtime pay at one-and-half times their regular rate of pay. Further, beginning on January 1, 2022, agricultural workers working more than 12 hours per day are to receive overtime pay at twice their regular rate of pay. Finally, this Bill authorizes California to delay the implementation of the foregoing phase-in schedule if the governor also suspends the implementation of the scheduled increase in the California minimum wage.

AB 1676 & SB 1063 – Wage Discrimination and Application to Race and Ethnicity (Effective January 1, 2017)

Under the Fair Pay Act, which went into effect on January 1, 2016, existing law generally prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. The Fair Pay Act provides for exceptions such as, the wage differential is based upon one or more of the following factors: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; (d) a bona fide factor other than sex, such as education, training, or experience.

AB 1676 amends the Fair Pay Act (Labor Code Section 1197.5) to provide that an employee’s prior salary cannot, by itself, justify any disparity in compensation under the bona fide factors above.

SB 1063 amends Labor Code Sections 1197.5 and 1199.5 and expands the requirements of the Fair Pay Act to include employees’ race or ethnicity, and not just gender.

AB 1732 – Single-User Restrooms (Effective March 1, 2017)

Commencing on March 1, 2017, this Bill requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender toilet facilities. This Bill would authorize inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with these provisions during any inspection.[5]

AB 1843 – Criminal History in Applications for Employment (Effective January 1, 2017)

In addition to existing laws that proscribe what an employer can or cannot ask applicants about their criminal history,[6] this Bill amends Labor Code Section 432.7 and prohibits employers from asking applicants to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

For purposes of this Bill, “conviction” does not include “any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.” Further, this Bill contains additional restrictions and rights for employers of health care facilities.

AB  2068 – Talent Services  (Effective January 1, 2017)

This Bill amend Labor Code Sections 1703 and 1703.4 and provides additional protections to artists for their information or photographs to any form of communication such as “an online service, online application, or mobile application of the talent service or one that the talent service has the authority to design or alter.” Further, this Bill requires, among other things: (1) the talent service to act, within days 10 days, on requests of the artist made by any form of electronic communication, including text messages, to remove information or photographs from the talent service’s website, online service, online application, or mobile application (collectively electronic medium”) or an electronic medium that the talent service has the authority to design or alter; and (2) that the artist may cancel the contract within 10 business days from the above date of the contract or the date on which the artist commences utilizing the services under the contract, whichever is longer.

AB  2337 – Employment Protections for Victims of Domestic Violence, Sexual Assault, or Stalking (Effective July 1, 2017)

This Bill requires that by July 1, 2017, employers with 25 or more employees provide specific information in writing to new employees upon hire and to other employees upon request of their rights to take leave under Labor Code Section 230.1 (relating to victims of domestic violence, sexual assault, or stalking). This Bill also requires that, on or before July 1, 2017, the Labor Commissioner develops a form that employers may elect to use to comply with these provisions and to post it on the Labor Commissioner’s website. Employers are not required to comply with the notice of rights requirement until the Labor Commissioner posts such form.

AB 2535 – Itemized Wage Statements (Effective January 1, 2017)

Existing law requires that employers provide their employees an accurate itemized statement in writing containing specified information as listed in Labor Code Section 226. This Bill clarifies that Section 226 does not require employers to include in itemized wage statements the total number of work hours by an exempt employee. An exempt employee is an employee who is exempt from the payment of minimum wage and overtime under the California Labor Code or other applicable Wage Orders promulgated by the Industrial Welfare Commission (a commission within the within the California Department of Industrial Relations). Employers must continue to include the total hours worked by non-exempt employees in the itemized wage statements for each pay period.

AB 2899 – Minimum Wage Violations (Effective January 1, 2017)

This Bill amend Labor Code Section 1197.1 and requires that, prior to an employer appealing a citation by the Labor Commissioner against the employer for violation of wage and hour laws, the employer post a bond with the Labor Commissioner in an amount equal to the unpaid wages assessed under the Labor Commissioner’s citation, excluding penalties. The bond must be in favor of the employee and will be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings.

SB 1001 – Immigration Related Unfair Practices (Effective January 1, 2017)

Employers who are in the process of verifying that workers have the necessary documentation to work in the United States are prohibited from requesting of such workers more documents or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to reinvestigate or re-verify an incumbent employee’s authorization to work. Under this Bill, which adds Labor Code Section 1019.1, applicants and employees may file a complaint with the Division of Labor Standards Enforcement. Any person who is deemed in violation of this new law is subject to a penalty imposed by the Labor Commissioner of up to $10,000, among other relief available.

SB 1167 – Heat Regulations for Indoor Workers (Effective January 1, 2019)

By way of background, the Division of Occupational Safety and Health (“Division”) investigates complaints that a workplace is not safe and may issue orders necessary to ensure employee safety. Under existing law, certain violations of that act or a standard, order, or special order authorized by the act are a crime. Under existing law, the Division has adopted regulations establishing a heat illness prevention standard for outdoor workers.

This Bill, which adds Labor Code Section 6720, requires that, by January 1, 2019, the Division is propose to the Occupational Safety and Health Standards Board (“Board”) for the Board’s review and adoption, a heat illness and injury prevention standard applicable to workers working in indoor places of employment. “The standard shall be based on environmental temperatures, work activity levels, and other factors.” Further, under this Bill, the Division is not precluded from proposing, or the Board from adopting, a standard that limits the application of high heat provisions to certain industry sectors.

SB 1241 – Choice of Law and Forum in Employment Contracts (Effective January 1, 2017)

This Bill adds Labor Code Section 925 and prohibits employers from requiring California-based employees to enter into agreements (including arbitration agreements) requiring them to: (1) adjudicate claims arising in California in a non-California forum; or (2) litigate their claims under the law of another jurisdiction, unless the employee was represented by counsel. Any provision of a contract that violates this new law is voidable by the employee, any dispute arising thereunder shall be adjudicated in California under California law and the employee is entitled to recover reasonable attorneys’ fees. Click here for a more detailed discussion of this Bill.

As a result of the foregoing new laws, employers should consult with legal counsel to ensure their policies are compliant and their employee handbooks are up to date.


[1] As a reminder, the minimum wage in California is increasing to $10.50 per hour on January 1, 2017 for employers with 26 or more employees based on previous legislation signed by Governor Brown in 2015. The minimum wage for employers with 25 or fewer employees will remain at $10.00 per hour for 2017. Also, please note that various cities and local governments in California have enacted minimum wage ordinances that exceed the state minimum wage.

[2] This Bill impacts Sections 2655, 3303 and 2655.1 of the Unemployment Insurance Code.

[3] This Bill also adds Chapter 6 (commencing with Section 857) to Part 2 of Division 2 of the Labor Code, relating to employment.

[4] For employers with 25 or fewer employees, the phase-in schedule begins on January 1, 2022, through January 1, 2025.

[5] This Bill adds Article 5 (commencing with Section 118600) to Chapter 2 of Part 15 of Division 104 of the Health and Safety Code, relating to restrooms.

[6] Under existing laws, an employer cannot ask an applicant about an “arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.”

Illinois Employers Must Provide Qualifying Employees Two Weeks of Unpaid Child Bereavement Leave

By Stephanie Dodge Gournis and Shavaun Adams Taylor

Illinois is now the second state to require that employers provide unpaid bereavement leave to eligible employees under its Child Bereavement Leave Act. This Act provides that employers with at least 50 employees must provide two weeks (10 working days) of unpaid leave due to the loss of a child. In the event of death of more than one child in a 12-month period, an employee is eligible for up to six weeks of bereavement leave.

Coverage

The Act defines “employers” and “employees” in the same manner as they are defined under the Family Medical Leave Act (FMLA). Thus, an employee will be eligible for child bereavement leave under Illinois law if the employee has been employed by the employer for at least 12 months and has worked at least 1250 hours during the previous 12-month period. However, an employee who has exhausted his or her FMLA leave is not eligible for child bereavement leave under this Act.

While an employee’s eligibility for child bereavement leave is tied to the employee’s FMLA entitlement, the employee’s bereavement leave cannot be deducted from the employee’s available FMLA leave. In other words, an employee can take two weeks of bereavement leave and still be eligible for 12 weeks of FMLA leave for another qualifying event.

The Act defines “child” as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Bereavement Leave

An employee may use bereavement leave to:

  • Attend the funeral or alternative to a funeral of a child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Employees must take such leave within 60 days after the date on which they receive notice of the death of the child. Employees who wish to take bereavement leave must provide 48 hours’ advance to their employer, unless providing such notice is not reasonable and practicable.

Employers may require that an employee provide reasonable documentation, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Substitution of Paid Leave

Under the Act, employees may elect to substitute paid leave, including family, medical, sick, annual, or personal leave, that is available pursuant to federal, state, or local law, a collective bargaining agreement, or employment policy. Unlike FMLA provisions, the right to substitute paid leave rests with the employee and the Act does not provide any right to the employer to require an employee to use available paid leave.

Retaliation and Enforcement

An employer may not retaliate or take any other adverse action against any employee who:

  • Exercises rights or attempts to exercise rights under this Act;
  • Opposes practices which such employee believes to be in violation of the Act; or
  • Supports the exercise of rights of another under this Act.

If an employee feels that his or her rights have been violated under this Act, he or she may file a complaint with the Illinois Department of Labor or file a civil action in court within 60 days after the date of the violation.

An employer who violates this Act is subject to a civil penalty not to exceed $500 for the first offense and not to exceed $1,000 for the second offense.