Labor & Employment Law Blog

A recent NLRB decision in Lion Elastomers LLC, 372 NLRB 83 (May 1, 2023) restored prior Board law, which had used context-specific approaches to assess whether am employee’s outburst stripped him of protection under the National Labor Relations Act (the “Act”).  The decision by the current, three-member Democratic majority Board, makes it more difficult for employers to discipline or discharge employees who engage in profane, abusive or otherwise inappropriate conduct when done in connection with protected activity under the Act.  The restored law assesses employee conduct by applying highly amorphous setting-specific tests for the following various contexts: 

Tragically, California is reeling from the effects of two mass shootings in almost as many days, each one leaving in its wake shattered lives. These devastating events are on top of what is shaping up to be an especially violent year so far, with multiple mass shootings taking place less than one month into the year.

Given the current state of the economy, many employers are considering reductions in work hours and potential layoffs.  As businesses consider taking action to save money and prevent potential closure, they must do so carefully in order to manage and reduce risk of future litigation related to its actions.  This blog discusses the appropriate steps that a business must take when conducting a reduction in force (“RIF”).

Recent mass layoffs by tech companies, such as Twitter and Meta, have made headlines.  The massive layoff by Twitter on November 4, 2022 has already resulted in a lawsuit filed by former Twitter employees for violations of the federal Worker Adjustment and Retraining Notification (“WARN”) Act.  The WARN Act requires certain employers to provide 60-day advance notice in cases of qualified plant closings and mass layoffs, allowing employees and their families with transition time to seek alternate employment or skills training.

In a recent article, the National Labor Relations Board (“NLRB”) reported that during the first six months of 2022, union representation petitions filed at the NLRB increased 58%—up to 1,892 from 1,197 during the first half of 2021.  (https://www.nlrb.gov/news-outreach/news-story/correction-first-three-quarters-union-election-petitions-up-58-exceeding).  The NLRB also reported that in 2021, 52% of petitions filed resulted in a victory for the union as compared to only 46% in 2020.  (https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/representation-petitions-rc).

On December 28, 2018, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a regulation under the Motor Carrier Safety Act of 1984 (49 U.S.C. § 31101, et seq.) that preempted California’s meal and rest break rules.  In doing so, the FMCSA decided that California may no longer enforce its meal and rest break laws with respect to drivers of property-carrying commercial motor vehicles.

In response to the COVID-19 pandemic, California passed the “Right to Recall” law, which requires employers in the building services and hospitality industries to offer laid-off employees an opportunity to be rehired before hiring a new employee to fill the position.  Now that most businesses and companies are ramping back up and returning to work, employers covered by the Right to Recall law must ensure compliance with California’s recall requirements or face steep penalties. 

On January 13, 2022, the U.S. Supreme Court stayed the federal Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), which required large employers (with 100 or more employees) to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing. The Supreme Court’s ruling stayed the vaccine and testing mandate on the basis that OSHA had exceeded its authority in enacting the emergency rule (and that those challenging the mandate were likely to succeed). The Court described the federal ETS as “a significant encroachment into the lives—and health—of a vast number of employees.” Enforcement of the OSHA rule is currently on hold, pending further litigation on the merits.

On October 7, 2021, Governor Newsom signed SB 331 to place additional restrictions on employers offering severance agreements and settling employment claims alleging harassment, discrimination or retaliation based on purported violations of the Fair Employment and Housing Act (“FEHA”). The new law, which is effective January 1, 2022, expands California’s current legal restrictions under California Code of Civil Procedure Section 1001. Currently, CCP section 1001 prohibits various confidentiality and non-disparagement clauses in settlement agreements, specifically those that would prevent disclosure of factual information relating to claims of sexual assault, sexual harassment, workplace harassment or discrimination based on sex, or retaliation against a person for reporting such acts.

Seventeen years ago, in 2004, the California Legislature enacted the Labor Code Private Attorneys General Act of 2004 (“PAGA”).  Appropriately dubbed a “bounty hunter” law, PAGA authorizes any current or former “aggrieved” employee of a California employer to file suit to seek statutory penalties for essentially any violation of the California Labor Code together with attorney’s fees, hence the incentive for plaintiff attorneys to bring such cases.  Specifically, under PAGA a current or former employee who is “aggrieved” by a violation of the California Labor Code can seek in addition to damages and liquidated damages, civil penalties on the employee’s behalf and on behalf of all other similarly “aggrieved” (i.e., affected) current and former employees.  The recoverable civil penalties are up to $100 per employee per pay period for an initial violation and $200 per employee per pay period for each subsequent violation, plus attorney’s fees and litigation costs.  When such penalties are awarded, the plaintiff current or former employee along with all other similar “aggrieved” employee will receive 25% of the penalties together with their attorney’s fees as a “bounty,” with the balance of the penalties payable to a State agency known as the California Labor and Workforce Development Agency.  Click Here to read entire post.