Weintraub Tobin’s 2020 Labor and Employment Seminar and Training schedule is now available.  Click here for a copy of the schedule.
If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact: 
Ramona Carrillo 
(916) 558-6046.

On September 12, 2019, the California Supreme Court issued it decision in ZB, N.A., and Zions Bancorporation v. Superior Court [Lawson, real party in interest] (“Lawson”).  In analyzing whether the Plaintiff’s lawsuit could be compelled to binding arbitration under the arbitration agreement she entered into with her employer, the Supreme Court clarified that under Labor Code section 558, employees are not entitled to recover underpaid wages in a Private Attorneys General Act (“PAGA”) claim.

Before the enactment of the PAGA, section 558 gave the Labor Commissioner authority to issue overtime violation citations for a civil penalty as follows:

(1)        For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(2)        For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(Labor Code §558, italics added.)

The Lawson case concerned a PAGA action seeking civil penalties under Labor Code section 558.  Lawson brought the representative action against her employer, ZB, N.A. — with whom she agreed to arbitrate all employment claims and forego class arbitration — and its parent company, Zions Bancorporation (collectively, “ZB”).  ZB filed a motion compelling that Lawson  individually arbitrate her “unpaid wages” claim under section 558 because it was not a PAGA civil penalty claim.

The trial court generally agreed, bifurcating Lawson’s action and granting ZB’s motion to compel arbitration of the “unpaid wages” issue.  However, it ordered the issue to arbitration “as a representative action” for the unpaid wages of all aggrieved ZB employees.  ZB responded by filing both an appeal and petition for writ of mandate with the Court of Appeal.  After consolidating the two, the appellate court dismissed the appeal, holding that Code of Civil Procedure section 1294 only gave it appellate jurisdiction over an order dismissing, not granting, a motion to compel arbitration.  However, ZB persuaded the Court of Appeal to issue the writ of mandate, but the court did so on a different ground from the one ZB asserted.  The appellate court concluded that Lawson’s request for “unpaid wages” under section 558 in fact could not be arbitrated at all.  Relying on Thurman v. Bayshore Transit Management (Thurman), the Court of Appeal interpreted section 558 to expressly include “underpaid wages” within the scope of its “civil penalty” provision.  In the appellate court’s view, an employee could pursue the entire, indivisible civil penalty through the PAGA action, and that pursuant to Iskanian v. CLS Transportation Los Angeles, LLC, her employer could not compel the PAGA claim to arbitration. Continue Reading The California Supreme Court Clarifies Wages are NOT Part of the “Civil Penalty” under Labor Code Section 558 in a PAGA Action

Last year, new California legislation effective January 1, 2019 expanded the mandatory sexual harassment prevention training requirements for California employees.  That law required that, by January 1, 2020, employers with 5 or more employees must provide their supervisory employees with two hours of classroom or other effective interactive training and education AND must provide their non-supervisory employees with one hour of classroom or other effective interactive training and education.  This training must be provided within 6 months of hire, within 6 months of assumption of a supervisory role, and every two years going forward.  In addition, even if these employees had already been trained in 2018, the Department of Fair Housing and Employment (DFEH) announced that the new law requires these employees to be retrained during calendar year 2019.

California employers raised concerns about these requirements – and the legislature responded. On August 30, 2019, Governor Gavin Newsom signed emergency legislation (SB 778) which is effective immediately.  SB 778 extends the training deadline for training supervisory and nonsupervisory employees from January 1, 2020, to January 1, 2021.

The bill also specifies that an employee who has received this training and education in 2019 is not required to be retrained again until two years from the date of their last training.

This means that employers who trained their regular* employees in 2018 do not need to provide refresher training again until 2020.  Employers who retrained or trained their regular employees in 2019 do not need to provide refresher training until 2021.

*Note: the emergency legislation does not change the law regarding seasonal and temporary workers. Beginning January 1, 2020, seasonal and temporary employees who are hired to work for less than six months, must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.

The Training Division of the Labor & Employment Department offers the training and education required by this law.  Please feel free to contact any member of our Labor and Employment team, or our department assistant, Ramona Carrillo (rcarrillo@weintraub.com) to discuss and schedule a training program that meets the specific needs of your workplace.

 

By:  Nicholas E. Ma

The United States Court of Appeals for the Ninth Circuit recently confirmed in Tauscher v. Phoenix Board of Realtors, Inc. that while employers must engage in an “interactive process” with disabled employees to explore possible accommodations, there is no interactive process requirement for public accommodations and services.  By the same token, businesses and entities providing public accommodations cannot discharge the duties they owe to disabled patrons because of a failure to engage in the interactive process.

Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.  (42 U.S.C. § 12182(a).)  A public accommodation must furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  (28 C.F.R. § 36.303(c)(1).)  While “[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the regulations make clear that “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.”  (Id. § 36.303(c)(1)(ii).) Continue Reading Ninth Circuit Clarifies the Interactive Process Does Not Apply to Public Accommodations under Title III

If you’re like me – and thousands of other attorneys, business owners, and individuals in California – you’ve probably been following the progress of Assembly Bill (“AB”) 5 and holding your breath and wondering with anticipation if Governor Newsom will sign the Bill if it makes it to his desk.  As a reminder, AB 5 is the proposed Bill to codify the decision in Dynamex v. Superior Court so that the very strict “ABC Test” would apply in order to determine the status of a worker as an employee or independent contractor for all provisions of the Labor Code and the Unemployment Insurance Code, except in certain industries and professions. Continue Reading Will Assembly Bill 5 – and the Answer to the Question of … What Test Applies When Classifying Independent Contractors … Make it to the Governor’s Desk this Year?