Cal/OSHA Revises COVID-19 Regulations Again

Cal/OSHA Revises COVID-19 Regulations Again

The California Department of Public Health (“CDPH”) and California Division of Occupational Safety and Health (“Cal OSHA”) made some important revisions to California’s definition of  “close contact” and to the expected 2-year extension of California’s COVID-19 regulations. The new Cal/OSHA regulations revise COVID-19 Regulations impacting Close Contact, Square Footage, and the 6 Foot/15 Minute Rule.

Close Contact Defined

The CDPH changed the definition of “close contact” via an immediately effective order, which will change enforcement for both large and small workplaces in California.

The CDPH website states:

“Close Contact” means the following:

  1. In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace  for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
  2. In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

Infectious Period is defined as:

    1. For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
  1. For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after a positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.”

We are not talking about “sharing the same indoor airspace” as an infected person for 15 minutes anymore. This “indoor airspace” definition led to litigation, confusion and complete disagreement as how to regulate employees. Many employers where completely confused due to how it deviated from the prior “6-foot/15 minutes” rule. “Indoor airspace” was undefined and in this author’s opinion  likely unconstitutional and a violation of the Administrative Procedures Act. What does that mean? More workers compensation liability for insurance carriers and employers and, of course, ore lawsuits against the employer, claiming employees were forced to work in close contact and in an unsafe environment.

California workplaces will be separated by their cubic footage, regardless of walls, windows or sealed doors that close with airtight HEPA filers.  Workplaces larger than 400,000 cubic feet (Costco, Target, Wal-Mart) will utilize the original definition of a close contact (6 feet/15 minutes) where airspaces smaller than 400,000 cubic feet (Everyone else) will keep the more recent definition of anyone sharing the same “indoor airspace.” Notably, CDPH’s order expressly notes that where “floor-to-ceiling walls” separate portions of a workplace, those areas must be counted separately for the purposes of determining whether the workplace is 400,000 cubic feet.

Larger California Employers Win Smaller Ones Get Screwed

Large workplaces appreciate the state getting out of their business. With the biggest lobbyist, and law firms, who is surprised? In contrast with rest of us who are left litigating over this mess, the unknown “indoor airspace” standard, California’s largest warehouses, airplane hangars, or manufacturing spaces can now return to the much more practical standard of 6 feet/15 minutes to identify close contacts.  This change will potentially reduce costs, the scope of obligations toward testing and masking after exposures in the workplace.

For the rest of us, my law firm office in Lake Forest included, the employer must look at whether each area inside that workplace meets the requirement, or if it is a separate airspace due to walls or similar barriers. For that reason, employers who are close to the 400,000 cubic feet limit will need to do some careful measuring — and work with contractors and lawyers – that’s right hire more lawyers! (Love it!) and see if the workspaces qualify under California’s draconian requirements, including whether it is actually separate spaces and therefore must continue under the present “indoor airspace” definition.  Get out the checkbook Ms. Bookkeeper, we got some spending to do.

The Definition of the Same Indoor Airspace is Vague and Ambiguous

California employers have been objecting to the “same indoor airspace” standard earlier this year and the massive expansion of who qualifies as a “close contact” was introduced just after COVID was over. Further the standard was so difficult to understand as compared to the prior 6-foot/15-minute rule.  The ridiculousness of the standard in large workplaces where an employee might never be within 30 feet of a coworker, maybe because they have an enormous 30 x 30-foot office – would apparently now be a “close contact” triggering (1) testing, (2) quarantining (aka stay at home and not work) and (3) litigation – WCAB claims or otherwise. Thank God they backed off the big employers, hopefully, the smaller ones will get reasonable regulation soon, but that appears unlikely.

Cal/OSHA Responds to Employers’ Objections to the 2-Year Order

What do agencies do to make themselves stay around longer and feel important about themselves? You guessed it – make more rules and regulations!  Though the “close contacts” change is the only thing going into effect immediately, the other changes Cal OSHA changes included another 2 year extension of the COVID regulations (Horary 2 more years of new mask fashions! I was changing up and going with real mink this winter – maybe white rhino skin?  Just Kidding.  These will be voted on in December 2022.

On October 14, 2022 Cal/OSHA issued a 15-day change notice and made considerable changes to the draft regulation’s text thinking no one notice no doubt. Though the full import of these changes is still being reviewed, the most important are:

  1. New “close contact” definition based on the size of the workplace into the draft regs.
  2. Reducing the definition to end an “outbreak”— now one case in a two-week period does not extend the outbreak. Instead, two cases will be the threshold to continue outbreak precautions. Luckily no outbreaks for any of my friends yet.
  3. Changes to COVID at Work Notice requirements— with the new laws passed, including AB 2963 (Reyes; D-San Bernardino) changing notice requirements in the workplace, requiring COVID Notice until January 2024 [if an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer is required to take specified actions within one business day of the notice of potential exposure, including providing written notice to all employees on the premises at the same worksite that they may have been exposed to COVID-19 has been extended to January 1, 2024], the regulation is being adjusted to match.

California Regulations Mean Changes for Employers of All Sizes

Employers of all sizes need to pay attention to this upcoming Cal OSHA meeting.  Do you remember California exclusion pay?  That was Cal/OSHA’s Emergency Temporary Standards (“ETS”) on COVID-19 Prevention that required employers to exclude employees from the workplace under certain circumstances, such as when someone showed up with COVID and coughed their disgusting germs all over the office. While the employee is excluded, their employer must maintain their pay and benefits. For more information on the ETS and whether it applies to your workplace, refer to Cal/OSHA’s Frequently Asked Questions.

Remember, The ETS applies to all employers, employees, and places of employment with the following exceptions:

  1. Work locations where there is only one employee who does not have contact with other people.
  2. Employees who are working from home.
  3. Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
  4. Employees working from a location chosen by the employee that is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

Exclusion pay is not included in the new proposal and will expire this December 2022 as expected.  The real question is why the F*** is California looking at extending our COVID-19 regulations for 2 more years when no other states have such a regulation, and infection rates are declining in OrangeSan Diego and Los Angeles Counties?  When will this nightmare end? Even Governor Gavin Newsome Ordered the COVID state of emergency to end February 28, 2023, maybe we could do some coordination efforts? We suggest you ask your state representatives.

Quintilone & Associates Can Help

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.

Quintilone & Associates 22974 El Toro Road, Suite 100 Lake Forest CA 92630

Phone 49.458.9675 Fax 949.458.9679 Email req@quintlaw.comkjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

What California Employers Need To Do With The New California Privacy Rights Act

What California Employers Need to Do with the new California Privacy Rights Act

The California Privacy Rights Act (“CPRA”) will be enforced starting on January 1, 2023, and will expand privacy rights under the California Consumer Privacy Act (“CCPA”). The California Consumer Privacy Act [Prop 24 passed with California voters in November 2020] provides California employers some exemptions with respect to employment-related personal information, when that personal information is collected and only used in connection with the person’s role as an employee, applicant, dependent or spouse of an employee, beneficiary, independent contractor or owner.  The CPRA expands upon and amends the CCPA, which has led to it being known as CCPA 2.0. However, it was on the ballot officially as Prop 24.

It appears the CCPA does not extend certain consumer rights like the CPRA, including the right to access or delete personal information, to employees.  As reported in Law360.com, businesses subject to the CPRA will have to comply with obligations related to the processing of employee data.

What Kind of Data Breach Can I sue a Business for – OK Get Sued for under the CCPA?

You can only sue businesses under the CCPA if certain conditions are met. The type of personal information that must have been stolen is your first name (or first initial) and last name in combination with any of the following:

  1. Your social security number
  2. Your driver’s license number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to identify a person’s identity
  3. Your financial account number, credit card number, or debit card number if combined with any required security code, access code, or password that would allow someone access to your account
  4. Your medical or health insurance information
  5. Your fingerprint, retina or iris image, or other unique biometric data used to identify a person’s identity (but not including photographs unless used or stored for facial recognition purposes)

This personal information must have been stolen in nonencrypted and nonredacted form.

CCPA Applies to Employers in California

 The CCPA does not provide a blanket exemption for employment-related data. Employers are still required to adequately safeguard the personal information they collect and provide a notice of processing at or prior to the point of collecting the personal information to the individual employee.  A practical example will be a Notice to Employees that we collect and maintain your pay and time data, health information, sick time and vacation data, as well as CaliforniaChoice and Cal-COBRA information, Banking information (for direct deposits) and retirement information for 401K plans, etc.

Employee data under the CPRA

Employers must prepare and provide a privacy notice to an employee and/or job applicant at or before the time personal information is collected.

This notice must include:

(1) the categories of sensitive personal information,

(2) whether that sensitive personal information is sold or shared, and

(3) the length of time the employer intends to retain each category of sensitive personal information.

If an employer allows a third party (such as Human Resources management software, PeopleSoft, Kronos, QuickbBooks, Microsoft [Think of Outlook collecting name, address, personal cell phone, and emails] or Clio) to collect personal information on its behalf, the CPRA requires that the third-party collector provides notice at collection.  Along with providing notice that includes the consumer’s rights, who is collecting the data, and how and for what purpose such data is being collected, sold, used, or shared, an employer must also include the categories of all third parties that the employer discloses consumer personal information to, or that the employer allows the collecting consumer personal information.

Unless they can rely on an exemption, employers must honor consumer requests, such as the right to delete, know of, correct, access or opt out of both the sale and sharing of personal information, and limit the use and disclosure of sensitive personal information. In addition, employers must ensure they meet the requirements for data portability and non-discrimination with regard to consumer requests.

Businesses are now being required to enter into a data processing agreement with their vendors, all of them including to agency [overload it seems] require service providers, contractors, or other third parties that may have access to its personal information. This requirement applies regardless of the types of personal information processed, employment-related or otherwise. The data processing agreement must also include the following provisions:

  1. Identify the limited and specific business purposes and services for which the vendor will process personal information as set forth within the contract.
  2. Prohibit retaining, using or disclosing the personal information for any purpose other than those specified in the contract.
  3. Prohibit retaining, using or disclosing the personal information received for any commercial purpose other than the business purposes specified in the contract.
  4. Prohibit retaining, using or disclosing the personal information outside of its direct relationship between the vendor and the business and prohibit retaining, using or disclosing the personal information for any purposes other than the business purposes specified in the contact.
  5. Require that the vendors will comply with the applicable obligations under the CPRA and provide the same level of privacy protection as required.
  6. Require that the vendor notify the business if the vendor can no longer comply with the obligations under the CPRA.
  7. Grant the business the right to take reasonable and appropriate steps to ensure that the vendor uses the personal information in a manner consistent with the business’s obligations under the CPRA.
  8. Grant the business the right to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.
  9. Require the business to inform the service provider or contractor of any consumer request made pursuant to the CCPA that they must comply with, and provide the information necessary for the service provider or contractor to comply with the request.

In addition to the requirements listed above, a business must include the following provisions:

  1. prohibit the sale and sharing of personal information; and
  2. require notification of any contractors engaged, and mandate that the contractors be contractually bound to the same processing obligations.

Businesses must safeguard the personal information against unauthorized disclosures and provide employees with the right to limit the use and disclosure of sensitive information.

Businesses are also required to conduct due diligence assessments, such as audits, on their vendors to ensure that they can process personal information in compliance with the CPRA.

What should employers do to get ready for the CPRA

Businesses should begin to implement the below recommended actions ASAP. Right now, the California Office of the Attorney General will be up in your grill with violations, and next, God Forbid, a new agency is being created. Imagine your client, or worse, your office, being the poster child for a new agency looking to draw blood on some hapless company that forgot to notify QuickBooks (Intuit), Microsoft or the local Schools First Federal Credit Union of its new requirements! Ouch!

This new law creates a new dedicated privacy agency, the California Privacy Protection Agency, to handle enforcement. It will be governed by a five-member board appointed by the Governor (appointing the Chair and one other member), the Attorney General, the Senate Rules Committee and the Speaker of the Assembly. These appointees must have expertise in the areas of privacy, technology and consumer rights (with some restrictions to help ensure that they remain free from external influence).  How we measure “experience” and ensure they are “free from external influence” is still up for debate.

Board members cannot serve for more than eight (8) consecutive years and may be removed during that time by their appointing authority. For two (2) years after they leave the agency, they are also unable to work for any person or organization that currently has an issue before it or was subject to an enforcement action during the five-year period preceding the board member’s appointment.  That does not restrict them from doing consulting work or working directly for a company that has not yet been audited but maybe “on the radar” which to us, leaves room for abuse.

Headed by a board-appointed executive director, this agency will be partially funded by enforcement actions with any administrative fines assessed or settlement proceeds going directly into the Consumer Privacy Fund. It will also receive an annual $10,000,000 (adjusted annually) from the General Fund.  Your tax dollars at work.

Employers Must Learn and Manage their Data

Rather than yell at Junior sitting on the couch until 4 AM playing Call of Duty and Madden NFL 2023 4 AM you need to hire him as your new data consultant. If the terms Data wrangling (has nothing to do with cattle wrestling), Identity transform (has nothing to do with sex changes) and reusable transformation library, are all foreign to you, whip out your American Express Card as you and other businesses are going to have to pay to get complaint quickly. We never thought matching attributes (@*) and nodes would make its way into employment law.

To stay compliant with the CPRA, a business should know and understand what type of employment-related personal information it collects and processes. This can be accomplished by completing a data mapping exercise.  This is not like Geocaching or even mapping a trial hike in Big Bear, this is some advanced stuff!  See this Data Mapping explanation and a chart as an example, courtesy of Wikipedia..

In addition to data mapping [some vendors include – MantaTerraTrue and Clarip No I have not been paid] , companies should review and update existing privacy impact and cybersecurity assessment programs. This step alone will provide useful insight on the type of data a business collects and processes, which could help remediate any privacy and security compliance gaps.

Hire Lawyers and Consultants and Understand the CCPA and CPRA

 What was that last word of advice? Yes, hire lawyers and experts and vendors!  Oh my! Businesses must gain a clear understanding of the CPRA consumer rights and their interaction with the CCPA. As the CPRA consumer rights are broader than the CCPA, it should be easier for larger companies to comply. Some examples of the CPRA’s requirements which allow consumers to request that a business (including a law firm):

  1. Correct personal information that is inaccurate;
  2. Limit its use of their sensitive personal information;
  3. Allow access to information about automated decision-making; and
  4. Provide an option to opt-out of such automated decision-making technology.

The rest of the consumer rights are similar to those found under the CCPA but are expanded or modified.  California companies should also understand its obligations to respond and fulfill any consumer requests, whether or not they seem ridiculous.

The CPRA provides a business with exemptions that, if applicable, could exempt a business from having to fulfill a consumer request. Unlike the CCPA, which allows for its exemptions to be used only for certain consumer rights, the CPRA allows the use of the exemptions toward any of the consumer rights.

Along with understanding consumer rights, a business should also understand the new rights of its employees with respect to their personal information. So by creating or updating your business plan companies can manage the new employee rights and consumer requests obligations. A business should also incorporate and/or update its retention schedule for employment-related personal information – most are currently 7 years – and employee privacy notices to include CPRA notice requirements.

Review Vendors Agreements and Policies

California companies need to know what information vendors are collecting and processing. Each vendor agreement should include the appropriate data processing and information security terms and obligations.  However, the law remains unclear on what smaller companies and firms, like us, can do if the necessary vendor fails to comply with its requirements. It appears we may all be entering the employee leasing business model where “everyone gets sued.”  Microsoft has a data breach, so Company A (vendor) and Company B (service provider), and Company C (actual company with employees) all get sued.

 

We would also suggest to our California companies consider only doing business with US companies since defendants like Shopify (we are Canadian yeah? You bet ‘cha – United States District Court Judge Edward Chen stated that the US-based court does not have jurisdiction over the two entities since they are headquartered in Canada and France) they seem to avoid liability and a potential source of indemnification for your business under these scenarios.  Comment dire –  que c’est nul!

Review existing policies.

Finally, we suggest all companies review your employee handbooks, operation manuals, information technology policies and procedures, in particular those relating to the use of personal devices for work purposes, lest they be in the cross-hairs of California.

In today’s modern world, employees may conduct certain business functions on their personal devices, via certain applications like Slack, Outlook, Teams, Zoom, and even QuickBooks (Bill! Bill! Bill!). This can be considered “collecting and processing personal information” and needs to be addressed now or at the latest in 2023 when this legislation takes effect.

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.

Quintilone & Associates 22974 El Toro Road, Suite 100 Lake Forest CA 92630

Phone 49.458.9675 Fax 949.458.9679 Email req@quintlaw.comkjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

California Supreme Court to Address Split on Alleged Paga manageability

On June 22, 2022, the California Supreme Court granted review in Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, to resolve a split of authority in separate Court of Appeal regarding whether trial courts can strike allegedly unmanageable Private Attorneys General Act (“PAGA”) claims. The Court will hopefully hear arguments in 2023, but with new COVID, Monkeypox or other pandemic concerns – may not. As a quick note, all claims and cases are hard to try. PAGA claims involved workers, pay, and working conditions, nothing fancy other than the software used to track time and other means of proving off-the-clock work and Labor Code violations. It can and will be tried. Just imagine if the medical malpractice or construction defect industry threw up its hands and said “Judge it is just too  hard to manage this CD case [some have over 10 experts per side], so 200 homeowners can go pound sand!”  Yeah right. Nice try defense bar.

In Wesson v. Staples the Office Superstore LLC (2021) 68 Cal.App.5th 746, the 2nd District held that “courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable.” Id. at 756. Drawing on principles from class actions and other representative actions, the court explained that “[i]n general . . . a need for individualized proof pertaining to a very large number of employees will raise manageability concerns.” Id. at 771. (Click here to learn about the Wesson decision.)

We believe Wesson is limited to its own unusual set of facts. In Wesson the trial court felt sorry for the poor defendant (Staples) and claimed [1] the case could not be fairly [Fair to who?] and efficiently tried and the Court had the authority to strike an unmanageable claim, because at the time case law provided for courts to consider the manageability of representative claims in other contexts and PAGA claims involved “comparable or greater” manageability concerns [read between the lines “I do not want to try this case”]; [2]-The employer was entitled to a fair opportunity to litigate available affirmative defenses [we have heard this before – which means they want to put every single class member, claimant or aggrieved employee on the stand for hours] which a manageability assessment had to take into account, because “due process” required a fair opportunity to present a defense; and [3]-[probably the most important] the employee’s lack of cooperation with the trial court’s manageability inquiry stymied efforts to proceed, striking the PAGA claim, which alleged misclassification, as unmanageable was not error.  Misclassification cases are their own “breed” and trying them is inherently difficult. Read the opinion, the plaintiffs did no favors for themselves or the employees to advance the case, and appealed a bad set of facts, which we have been taught over and over again, “Bad facts make bad law.”

Conversely, in Estrada, the 4th District [far more superior Court in intelligence, wit, and good-looking justices] held that “a court cannot strike a PAGA claim based on manageability.” Estrada, 76 Cal. App. 5th at 697. While Estrada also expressed concern about unmanageable claims, it explained that where claims involve “hundreds or thousands of alleged aggrieved employees, each with unique factual circumstances,” the court may render a trial manageable by limiting the presentation of evidence and witnesses, but not by striking or limiting the claims. Id. at 713. Richard Quintilone II Esq. already posted about Estrada here. We have had only one less experienced lawyer argue Wesson defeats manageability [and our case is not hard to manage] and no other quality defense firm has advanced such a motion on facts that diverge from misclassification.

The California Supreme Court is supposed to resolve this split, but the order granting review gives little indication of which way the Court may rule other than pro-employee since it has done so consistently in the past 3 years. While inexperienced defense-only firms and lawyers wax poetic about that the Court denied review of Wesson in December 2021, get real, the justices were simply busy with the holidays. The Court denied a request to depublish Estrada, so as the fans of Game of Thrones know it- Winter is coming.

Again, the Supreme Court will have to take up the split and until then Trial courts are free to rely upon EstradaCalifornia Rules of Court Rule 8.1115. Citation of opinions (2022)  Wesson is clearly a poorly reasoned decision and limited to its misclassification facts. Click our prior Quintilone & Associates Post to read our analysis of Estrada.

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.comkjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

California Governor signs Pay Transparency for Pay Equity Act

Following up with a Law.360 report, Governor Gavin Newsome signed a new California law requiring employers to disclose salary ranges on job listings and could encourage many employers to voluntarily opt for transparency, attorneys say. The law seems to be aimed at employee leasing companies that provide thousands of employees in the state with employment. California employers with 15 or more employees must include in all their job ads a range of what they reasonably expect to pay for the role.

California Gov. Gavin Newsom approved and signed into law the Pay Transparency for Pay Equity Act [Senate Bill 1162], into law on Tuesday. It makes California the biggest and most populous player in a growing list of states and municipalities — including Colorado, Washington and New York City — that are implementing pay transparency laws in an effort to close gender and race pay gaps.

In addition to the salary range requirement, the new law says employers must share salary ranges with their current employees upon request, and it builds on existing pay data reporting requirements as of January 1, 2023 and the reporting deadline for the salary range data collection is expected in May 2023, pending any challenges to the law.

Job Listings Now Needs to Include Pay Ranges

As stated above, California employers with 15 or more employees must include in all their job listings a range of what they reasonably expect to pay for the role. It appears to some experts that the new law builds upon previous California pay equity legislation, such as a ban on asking applicants for their salary history. Most employers, like most law firms, list the pay range based on experience. Employers are supposed to list their reasonable estimates for the ranges in good faith, it might not always work out that way, she said. Our best estimate of employer compliance would include the company providing overly broad pay scale ranges to avoid being non-compliant and without room to negotiate pay as well as avoid litigation or costly fines.

Employees Can Access Pay Info Upon Request to the EMployer

The new law also requires all California employers to disclose the salary range for a current employee’s position if that employee requests it. All employers must comply with this section, not just those with a certain number of employees. This will undoubtedly help employees with raises, which is a good thing for good employees.

Employers Will Have to Turn Over More Wage Data to the State

Cuasing new administrative burdens, employers with 100 or more contract workers — not independent contractors, but contracted employees such as those hired through staffing agencies (some of who we have represented briefly in the past) — must provide wage data on those workers to the California Civil Rights Department. It is unclear yet as to how and when litigation to enforce compliance will occur. The reports need to be broken down by (1) sex [male and female], (2) race and ethnicity according to the law. California employers with 100 or more employees already report this information for direct hires. This follows the data collection requirements of the Equal Employment Opportunity Commission [“EEOC”]. The EEOC regularly files actions against employers for pay discrimination.

According to experts reviewing the legislation, the California Civil Rights Department has “made it clear” that the reporting requirement applies broadly to employers around the country as long as they have at least 1 employee physically working here in California.

Conclusion

This is more work for employers in California but it will assist with the policy goals of equal pay for all workers and should result is some Claiofnria employees getting a raise – a good thing!

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.com; kjg@quintlaw.com or jtg@quintlaw.com web www.quintlaw.com

California Governor Bestows Labor Day Gift To Fast Food Workers

Happy belated Labor Day, we were all off of work on September 5, 2022Governor Newsom signed California Assembly Bill 257, the Fast Food Accountability and Standards Recovery Act [or “FAST Recovery Act”, on Monday, September 5, 2022.  The new law establishes yet another committee, the Fast Food Sector Council [I hate most fast food but I’d love a seat at the burger table] to regulate California’s fast food restaurants.  The council will be composed of 10 members who are not elected but are appointed by the Governor [think politics as usual], Speaker of the Assembly, and the State Rules Committee.  The council has the power to set standards for minimum wages, working hours, “and other working conditions related to the health, safety, and welfare of” fast food establishments, basically everything they do.  The law requires the council to meet at least once every 6 months.

California employers in the fast food industry must review the new legislation closely to see if their establishments are covered by the FAST Act.  Here are some key components of the new law:

AB 257 regulates “fast food chains”

The new law defines “fast food chain” as “a set of restaurants consisting of 100 or more establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services.” If you only have 2 restaurants you are safe for now Bru Market and Grill!

AB 257 applies to “fast food restaurants”

The law also only applies to fast food restaurants, which are defined as: “Fast food restaurant” means any establishment in the state that is part of a fast food chain and that, in its regular business operations, primarily provides food or beverages in the following manner:

(1) For immediate consumption either on or off the premises.

(2) To customers who order or select items and pay before eating.

(3) With items prepared in advance, including items that may be prepared in bulk and kept hot, or with items prepared or heated quickly.

(4) With limited or no table service. Table service does not include orders placed by a customer on an electronic device.

Permits the council to increase the minimum wage for fast food workers to $22 per hour by January 1, 2023

The law permits the council to set standards for minimum wages, maximum hours of work, and other working conditions for fast food restaurant employees.

The law permits the council’s ability to increase the minimum wage for restaurant workers and requires that any minimum wage set by the council can be as high as $22 per hour between January 1, 2023 to December 31, 2023.  That’s more than most of my law clerks. Look out Chik-Fil-A here comes a deluge of law students seeking better wages! How can I compete against those chicken sandwiches? Thereafter, the minimum wage can increase at the lesser of 3.5% or the rate of change set by the U.S. Bureau of Labor Statistics.

If on January 1, 2029, the council is no longer operative, the minimum wage set for fast food restaurant employees in effect on December 31 shall be increased by the lesser of 3.5% or the rate of change set by the U.S. Bureau of Labor Statistics.

The law permits “Local Fast Food Councils”

A county, or a city with a population of greater than 200,000, may establish a Local Fast Food Council.  These local councils have the ability to provide recommendations to the council.

Protects employees who disclose information to “watchdog or community-based organizations”

The new law also prevents a fast food restaurant operator from discharging or retaliating against any employee if the employee made a complaint or disclosed information to the media, or to a “watchdog or community-based organization” regarding employee or public health or safety.

Also, employers may not take adverse actions against employees if “[t]he employee refused to perform work in a fast food restaurant because the employee had reasonable cause to believe that the practices or premises of that fast food restaurant would violate worker or public health and safety laws.”

The law deleted the aspect of the law that made franchisors jointly liable for franchisees’ violations

The final version of the law deleted language from the bill that would hold franchisors jointly liable for franchisees’ violations.

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.comkjg@quintlaw.com or  jtg@quintlaw.com web www.quintlaw.com

 

California Supreme Court Adopts Contributing Factor Standard For Whistleblower Claims

California Supreme Court Adopts “Contributing Factor” Standard for Whistleblower Claims

The California Supreme Court held in Lawson v. PPG Architectural Finishes, Inc., (2022) 12 Cal.5th 703, the Court eliminated the McDonnell Douglas burden-shifting test. This test was previously applied to whistleblower and retaliation claims under California Labor Code section 1102.5.

California Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. California Labor Code section 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe … discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (Labor Code section 1102.5, subd. (b).) “This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77, 78 Cal.Rptr.2d 16, 960 P.2d 1046.) An employee injured by prohibited retaliation may file a private suit for damages. (Labor Code section 1105; see Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241, 101 Cal.Rptr.2d 893.)

On January 27, 2022, the California Supreme Court released a new decision regarding employees who assert for claims for retaliation under Labor Code section 1102.5 can succeed in proving liability and damages by showing by a preponderance of the evidence (50.5%) a retaliatory motive was merely a “contributing factor” behind an adverse employment action, like a demotion, termination, unwanted transfer or other actions. Many employers see this as easier to achieve than the burden-shifting McDonnell Douglas test, which required “substantial evidence” of retaliation. Put another way, the Court held that under the Labor Code’s whistleblower provision, a plaintiff does not need to show that the employer’s nonretaliatory reason for taking adverse action was pretextual; even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries burden assigned by statute if it is shown that employer also had at least one retaliatory reason that was contributing factor in action. See Labor Code sections 1102.5, 1102.6. Lawson v. PPG Architectural Finishes, Inc., (2022) 12 Cal. 5th 703, 715-716. Looking at the legislative intent the Court held that placing this unnecessary burden on plaintiffs would be inconsistent with the Legislature’s evident purpose in enacting [California Labor Code] section 1102.6: namely, “encourag[ing] earlier and more frequent reporting of wrongdoing by employees and corporate managers when they have knowledge of specified illegal acts” by “expanding employee protection against retaliation.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 777, supra, as amended May 29, 2003, p. 1, italics omitted.)

The underlying Lawson v. PPG case involved a former territory manager who filed a lawsuit in federal court, alleging a Labor Code section 1102.5 whistleblower retaliation claim against his employer. The employer’s motion for summary judgment was granted and the federal trial court applied the three-part McDonnell Douglas test to evaluate the 1102.5 claim. This application holds the “aggrieved” employee must first establish an adverse employment action that was somehow causally linked to some protected activity in which the employee engaged. The employer then has the burden of putting forth a legitimate, non-retaliatory business reason for pursuing the adverse employment action against the employee. If they provide a legitimate reason for said action, the burden shifts back to the employee to demonstrate by “substantial proof” and “sufficient evidence” (whatever the trial court decides that is) the employer’s articulated “legitimate” reason is a mere pretext for the alleged retaliation.

In granting summary judgment and ending the case, the trial court determined the employee met his initial burden. However, the employer had similarly sustained its burden of articulating a legitimate, non-retaliatory reason for firing him. The employee did not put forth this elusive and amorphous “sufficient evidence” showing the employer’s stated reason for firing him was a mere pretext (also known as a false reason).

Plaintiff appealed the decision to the Ninth Circuit Court of Appeals for the Federal Court system Lawson’s argument was that the trial court erred in applying the McDonnell Douglas test, and instead, should have applied the easier California Labor Code section 1102.6, which: (1) only requires a plaintiff to show that retaliatory motives “contributed to the adverse action”; (2) does not require a plaintiff to show that the employer’s legitimate reasons were pretextual or false; and (3) requires the employer to prove through “clear and convincing evidence” (if this were a chart I would say 75% sure) that its legitimate business reasons would have led to the same adverse action, here the termination of poor Mr. Lawson. The Ninth Circuit certified the question (basically asked the California Supreme Court to rule on an important issue of state law – This is like a “What would Jesus Do?” as the California Supreme Court is the ultimate authority on state law – but it sounds a little like passing the “buck” – typically I “certify the question” of how much information should go into answering discovery to my associate lawyers before making the call – but I digress…) The Ninth Circuit wanted to know the California Supreme Court’s decision regarding the applicability of the McDonnell Douglas test stacked up against the more lenient standard of proof in the Labor Code section 1102.6.

Fortunately for employees, and not good for employers, the California Supreme Court held that whistleblower retaliation claims under section 1102.5 are now subject to the framework laid out in Labor Code section 1102.6 as the legislature intended and rejected the use of the McDonnell Douglas test for claims brought under Labor Code section 1102.5. These claims can be safety complaints, wage complaints, complaints of fraud or other types of complaints as outlined above. The California Supreme Court reasoned section 1102.6 expressly provides the standards and burdens of proof for both parties in a section 1102.5 retaliation case. The Court also rejected the plaintiff’s argument about how to section 1102.6 was not intended to displace the McDonnell Douglas test but rather was intended to codify a specific type of affirmative defense available to employers.

This application of Labor Code section 1102.6 makes it easier for employees alleging retaliation to avoid summary judgment.

If you have any questions about this article, whistleblower claims, or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.com; or Email jtg@quintlaw.com web www.quintlaw.com

.

The United States Supreme Court Ruling in Viking River Cruises, Inc. v. Moriana impacts California PAGA litigation

The United States Supreme Court Ruling In Viking River Cruises Inc v Moriana Impacts California Paga Litigation

The United States Supreme Court Ruling in Viking River Cruises, Inc. v. Moriana impacts California PAGA litigation

Introduction to PAGA

The Labor Code Private Attorneys General Act (“PAGA”) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations.  PAGA afforded employees in California the right to file lawsuits against employers who violated the California Labor Code. PAGA authorized wronged employees to file lawsuits to recover civil penalties on behalf of either themselves, other employees, or the state of California. In effect, PAGA granted employees the right to sue as a representative of the California Labor and Workforce Development Agency (“LWDA”).

Today, many employers require their employees to sign arbitration agreements that prevent them from initiating class or representative lawsuits. However, under the now previous California law, arbitration agreements cannot waive an employee’s rights to bring legal action under a PAGA claim. To learn more, “check out our article on PAGA”

How the Supreme Court’s Decision on Viking River Cruises, Inc. v. Moriana will affect PAGA, the quick read

On June 15, 2022, The U.S. Supreme Court ruled on Viking River Cruises, Inc. v. Moriana 8-1 in favor of Viking River Cruises (“Viking”), overturning the decisions of the lower courts of California. The United States Supreme Court held that the Federal Arbitration Act (“FAA”) preempts PAGA in part. That partial victory, in this setting, was a major win for California employers because, as a practical matter, it makes the waiver of representative PAGA claims – not individual PAGA claims – in employment arbitration clauses enforceable in California—at least for now.

The Supreme Court first rejected Viking River’s argument that the FAA categorically preempts all PAGA claims. Only “the changes brought about by the shift from bilateral arbitration to class-action arbitration are too fundamental to be imposed on parties without their consent.” Basically, individual PAGA claims can still exist.

The Supreme Court then ruled that PAGA does conflict with the FAA to the extent it permits the joinder of claims of other aggrieved employees unrelated to the PAGA plaintiff’s own claim and precludes individual arbitration of a plaintiff’s claims. Many PAGA claims are expanded to include all aggrieved employees within the statute of limitations creating exponential exposure to the defendant employer, as one PAGA representative suddenly represents thousands of aggrieved employees. The Supreme Court held this joinder of other employees’ claims forced parties to arbitrate claims they did not jointly agree to arbitrate.

What has happened in Viking River Cruises, Inc. v. Moriana? The long read

From 2016 to 2017, Angie Moriana worked for Viking as a sales representative. Viking is a company that sells cruise ship trips on ocean and river cruise lines. At the start of her employment, Moriana was required to sign an arbitration agreement, which waived her right to assert a class, collective (under the Fair Labors Standards Act [“FLSA”]) or representative (PAGA) actions.

During Moriana’s employment, she and other sales representatives were subjected to numerous violations of California’s Labor Code. At the end of her employment, Moriana brought suit against Viking in California state court under PAGA.

The trial court denied Viking’s motion to compel for arbitration and subsequently ruled in favor of Moriana, citing Iskanian v. CLS Transportation Los Angeles, LLC  which held that arbitration agreements waive the right to bring PAGA representative actions in any forum are unenforceable. On appeal, the court of appeal affirmed the trial court’s decision, denying Viking’s motion to compel.

On March 30, 2022 the U.S. Supreme Court heard oral arguments and began deliberation, ultimately deciding in favor of Viking River on June 22, 2022.

What Viking Argued

Viking asserted that the enforcement of arbitration agreements falls under the Federal Arbitration Act which gave employers the power to have employees agree to arbitration and waive their right to bring a class action against his or her employer. In part, Viking contended that the FAA governed the resolution of private affairs while PAGA actions governed disputes between an employer and the state.  Viking reasoned that PAGA claims actually generated private, individual claims and should fall under the FAA’s umbrella.

Further, Viking argued that PAGA claims operated in a similar fashion to other collective actions, allowing a plaintiff to pursue claims in the interest of other people, as such the PAGA actions should not be treated differently from other collective actions. Thus, Viking contended that PAGA claims should adhere to federal procedural rules and allow for arbitration agreements.

The United States Supreme Court’s Holding

In what was expected to be a very close 5-4 decision, the Court ruled 8-1 in favor of Viking River. In its ruling, the Court issued two, almost contradictory, holdings:

  1. The prohibition of wholesale waivers of PAGA claims, as held in Iskanian, is not preempted by the FAA.
  2. The FAA preempts the previous ruling in Iskanian that PAGA cannot be divided into individual and non-individual claims.

What the Viking River Cruises, Inc. v. Moriana decision means for PAGA claimants for now and retroactively

The main issue of this case was whether the FAA will preempt PAGA and require state courts to enforce arbitration agreements specifying that employees cannot initiate representative claims.

In the Court’s decision, PAGA claims are seen as a procedural mechanism, rather than substantive, and fall under the FAA’s umbrella, acting similarly to a class action claim.

Under the Court’s decision, employers can now build into and enforce arbitration agreements that prevent employees from filing PAGA claims that can be brought collectively. As such, employers have been given the ability to limit the legal remedies of an employee and limit the cost and time it would take to litigate in court. In essence, this decision put a stranglehold on employee representative suits.

In the immediate future, this can be seen as a win for employers. Companies, such as Uber and Postmates, who have already come out in support of Viking, will now have the precedent to limit their own exposure in class action suits.

However, the Supreme Court’s decision is far from the last word we will hear about PAGA claims in California. In Justice Sotomayor’s concurring opinion, she comments that “California courts…will have the last word” indicating that the state will have final say on the future of PAGA claims.

In the coming weeks, it is expected that the state will propose new legislation to enforce PAGA claims against arbitration clauses on conferring standing on the PAGA representative that will essentially gut the decision. Legislation is being proposed that may be signed as soon as October 2022. The war is far from over, but for now, employers can relish in their victory of the first battle, but know “winter is coming,” and this is not the last battle.

If you have any questions about this article, PAGA Amendments, or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.com; or
Email jtg@quintlaw.com
 web www.quintlaw.com

This post was drafted with the assistance of Law Clerk Zachary Zolowicz zrz@quintlaw.com

United States Supreme Court Rejects Prejudice Requirement For Employees Asserting That Their Employer Has Waived Its Arbitration Right When It Litigates Before Moving to Compel Arbitration

United States Supreme Court Rejects Prejudice Requirement for Employees Asserting that their Employer has Waived its Arbitration Right When it Litigates before Moving to Compel Arbitration

In a unanimous decision issued on May 23, 2022, the Supreme Court in Morgan v. Sundance (596 US _ (2022)) held that courts may not make up new procedural rules based on the Federal Arbitration Act’s (FAA) policy of favoring arbitration. Specifically, the Supreme Court’s decision overturned the 8th Circuit precedent that imposed a requirement to show “prejudice” when asserting that a party has waived its right to arbitration after the employer has litigated a case seeking dismissal or asserting discovery, then later moving to compel arbitration.

The 8th Circuit’s test (similar to the (the 9th Circuit test) to determine whether a party has waived its right to arbitration included the following elements: (1) whether the party knew of the right; (2) whether the party “acted inconsistently with that right”; and (3) whether the other party was prejudiced by inconsistent actions taken by the alleged waiving party.

California state Courts require a different test. Code of Civil Procedure section 1281.2 allows the trial court to deny a petition to compel arbitration where “[t]he right to compel arbitration has been waived by the petitioner.” The term “waiver” as used in the statute is “ ‘a shorthand statement for the conclusion that a contractual right to arbitration has been lost.’ ” St. Agnes Medical Center v. PacifiCare of California et al. (2003) 31 Cal.4th 1187, 1195, fn. 4, 8 Cal.Rptr.3d 517, 82 P.3d 727 (St. Agnes).) Both federal and state law favor arbitration as a “ ‘speedy and relatively inexpensive means of dispute resolution.’ ” Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, 10 Cal.Rptr.2d 183, 832 P.2d 899.) Because the law favors arbitration, waiver will not be lightly inferred and the party asserting waiver “bears a heavy burden of proof,” with any doubts to be resolved in favor of arbitration. St. Agnes, supra, 31 Cal.4th at p. 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727.)

“The relevant factors establishing waiver include whether the party’s actions are inconsistent with the right to arbitrate; whether the litigation machinery has been substantially invoked and the parties were well into the preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; whether a party delayed for a long period before seeking a stay; whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and whether the delay affected, misled, or prejudiced the opposing party.” Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1204, 142 Cal.Rptr.3d 312; accord, St. Agnes, supra, 31 Cal.4th at p. 1196, 8 Cal.Rptr.3d 517, 82 P.3d 727.) “ ‘California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration [citations] to instances in which the petitioning party has unreasonably delayed in undertaking the procedure. [Citations.] The decisions likewise hold that the “bad faith” or “willful misconduct” of a party may constitute a waiver and thus justify a refusal to compel arbitration. [Citation.]’ ” (Iskanian v. CLS Transportation Los Angeles, LLC. (2014) 59 Cal.4th 348, 374-375, 173 Cal.Rptr.3d 289, 327 P.3d 129 (Iskanian).) Waiver is not a mechanical process and no one factor is predominant. (St. Agnes, supra, 31 Cal.4th at p. 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727.)

The 9th Circuit requires

In its decision, written by Justice Kagan, the Supreme Court rejected the prejudice prong of this three-part test on grounds that it isn’t a feature of general federal waiver law and held that the 8th Circuit erred when it invoked the federal pro-arbitration policy to create a new procedural requirement for waiving a party’s right to arbitration.

Citing Granite Rock Co. v. Teamsters, 561 U. S. 287, 302, the Morgan court held that the federal policy in favor of arbitration does not support the imposition of additional procedural requirements but should be viewed merely as “an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.”

The Petitioner in Morgan worked as an hourly employee at a Taco Bell franchise owned by respondent Sundance. The Petitioner, Robyn Morgan, signed a contract that included an arbitration provision whereby Morgan agreed to submit any employment disputes to arbitration. In spite of this arbitration clause, Morgan subsequently lodged a nationwide collective lawsuit claiming that Sundance had violated the Fair Labor Standards Act by failing to pay her for overtime work. In response, Sundance filed an answer which did not assert its right to arbitrate; filed a motion to dismiss; and then went on to defend itself in the lawsuit after its motion to dismiss was rejected.

Subsequently, Sundance made a motion at the district court to stay the litigation and asserted its arbitration rights under the FAA nearly eight months after the lawsuit was filed. Morgan opposed the motion on grounds that Sundance had waived its right to arbitrate by engaging in litigation for such a long time. The district court agreed with Morgan and denied the motion, reasoning that Sundance had waived its right to arbitration by participating in the litigation. However, the 8th Circuit Court of Appeals reversed on grounds that the FAA policy of favoring arbitration gave rise to a requirement that the party asserting that an arbitration right has been waived must show prejudice. Yet there was a split of authority on this issue because other courts had rejected such prejudice requirement. The Supreme Court thus granted certiorari in order to resolve the split and held that the federal policy of favoring arbitration under the FAA did not provide support for the imposition of a requirement that a party seeking to avoid arbitration on grounds of waiver must show prejudice.

The Supreme Court noted that Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel arbitration—“shall be made and heard in the manner provided by law for the making and hearing of motions” unless the statute says otherwise. In its unanimous opinion, the Court said the phrase “in the manner provided by law” means that courts should simply apply ordinary federal procedural rules when ruling on arbitration applications and that ordinary federal waiver rules do not include a prejudice requirement. Accordingly, the Court found that the language of the FAA does not permit courts to create an arbitration-specific procedural rule such as the prejudice requirement imposed by the 8th Circuit Court of Appeals.

If you have any questions about your rights as an employee, please feel free to contact:

Richard E. Quintilone II, Esq.
Quintilone & Associates
22974 El Toro, Suite 100
Lake Forest, CA 92630
Tel.: 949.458.9675
Fax: 949.458.9679
Email: req@quintlaw.com
Web www.quintlaw.com

For the entire opinion, see the following website: https://www.supremecourt.gov/opinions/21pdf/21-328_m6ho.pdf

Estrada v Royalty Carpet Mills Creates Split of Authority in California Court of Appeal Over Paga Manageability Requirement

Motions to strike PAGA claims have been many defense law firms’ favorite “flavor of the year” lately. From holding up a settlement or causing delays in a PAGA trial or worse, forcing your expert witness to testify multiple times to run up costs to prove manageability, the allegation “Judge the PAGA trial is just not manageable” rings in my ears often like little Johnny whining “It is just too far to walk” because he is just too lazy to finish a hike up the parking lot to Disneyland.

On March 23, 2022, the California Court of Appeal decided Estrada v. Royalty Carpet Mills, Inc., Case No. G058397, that held “a court cannot strike a Private Attorneys General Act (PAGA) claim based on manageability.” Estrada, 2022 WL 855568, at *1. This decision creates a welcome split of authority with Wesson v. Staples The Office Superstore, LLC, 68 Cal. App. 5th 746 (2021), and raises the possibility that the California Supreme Court will need to decide the issue.  Hopefully, the Supreme Court will take up both cases and erase Wesson from the “histories” 300 – Leonidas Meets Xerxes Scene – 300 Movie Clip HD

Estrada holds that a trial court may still limit the evidence that may be admitted at trial in order to ensure a manageable trial, and that a PAGA plaintiff is seeking to try an unmanageable claim “risk[s] being awarded a paltry sum of penalties if any,” due to problems of proof. The Court also encouraged plaintiffs to work with trial courts to “define a workable group or groups of aggrieved employees,” including by “narrowing alleged violations to employees at a single location or department.” Estrada, 2022 WL 85568, at *12 & n.8.

Again, the Supreme Court will have to take up the split and until then Trial courts are free to rely upon Estrada. California Rules of Court Rule 8.1115. Citation of opinions (2022)

If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:

Richard E. Quintilone II, Esq.
Jeffrey T. Green, Esq. or
Kyle Gallego J.D.
Quintilone & Associates
22974 El Toro Road, Suite 100
Lake Forest CA 92630
Phone 949.458.9675
Fax 949.458.9679
Email req@quintlaw.comjtg@quintlaw.com or kjg@quintlaw.com web www.quintlaw.com

Ending forced arbitration of sexual assault and sexual harassment act of 2021 is expected to become law in 2022

On February 10, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and sent the Act to President Biden for signature. President Biden is expected to sign the bill this week, which will become law immediately upon signature by the President.

This Act makes pre-dispute arbitration agreements relating to sexual assault or sexual harassment void. Similarly, any class or collective action waiver in pre-dispute arbitration agreements involving sexual assault or sexual harassment are void. This means that employees who allege sexual harassment in the workplace will be able to pursue their claims in court (after filing with the appropriate administrative agency, if necessary under state or federal law), regardless of whether they previously signed an arbitration agreement.

Some initial California observations and unsolicted legal commentary:

  1. The initial reading of the law is that it is retroactive in the sense that if an employee has a claim in the future, a previously-signed arbitration agreement would not be enforceable as to sexual harassment or assault complaints or claims. It is yet to be tested on existing claims and of course anticipated litgiation challengign the law may take years.
  2. An employee may still agree to arbitrate a dispute at the time the dispute arises, which may be worth exploring in some situations, especailly when an employer is sentive to costs and fees as arbitration is prohibitvely expensive for the employer in California.
  3. The law does not have any impact on other discrimination claims or other employment disputes, so arbitration agreements may still be advisable for some companies who can afford to arbitrate and pay their legal bills on time.
  4. Employers should review and revise any arbitration provisions in their employment-related agreements (wage & hour, nondisclosure, nonsolicit, noncompetition, employment agreements and any other agreements utilized by the company). If the arbitration clause attempts to mandate arbitration for sexual harassment and/or assult claims, a court could invalidate the entire clause and allow the entire claim into Court. Our firm can help with the drafting of appropriate employee handbooks and limited arbitration clauses.
  5. Employees should generally refuse to sign arbitration agreements as a condition of employment despite this carve out in the law. If allowed, have legal counsel review the agreement.

What Should Employers and Employees Do?

California-based employers and out-of-state-employers with employees in California should immediately review their policies, procedures, and practices to ensure compliance with the new laws and this new statute.

If you are an hourly worker and have any questions about whether you have been paid properly or paid all minimum wages or asked to work off the clock or whether you should have received a complaint paystub, or you believe you may have a claim against your employer for any violation of the California Labor Code, please feel free to call us at 949.458.9675 or email Rich Quintilone II Esq. at req@quintlaw.com if you have any questions. www.quintlaw.com