Labor & Employment Law Blog

On September 2, 2022, the California Court of Appeal, Second District, delivered a rare victory for California construction employers in Jerome Oswald v. Murray Plumbing and Heating Corporation (2022) __ Cal.Rptr.3d __, Dkt. No. B312736.  At its core, this case shows how qualifying employers can—and should—take advantage of California’s construction industry exemption from the Private Attorneys General Act of 2004 (“PAGA”).

Often it is said that “the best result in mediation is the one that makes everyone equally unhappy.”  Even so, experience proves that the party who usually comes out best in mediation is the one who is most prepared.  This article provides some common sense, practical tips to help with that preparation.

Mediation has become an essential part of litigation because the risks of going to trial are so considerable.  A defendant that cannot resolve a case before trial runs the risk of a court or jury awarding substantial damages to the plaintiff.  If the plaintiff recovers anything at all, the defendant also may have to pay the plaintiff’s attorneys’ fees and costs.  Even when defendants win (and they do), the fees they pay to their own counsel to secure a defense win are substantial.  Plaintiffs also are at risk.  While many plaintiffs may have contingent fee arrangements with their own counsel, a losing plaintiff likely will be on the hook for significant hard costs incurred in litigation by their own counsel.  Even worse, they can be responsible for the defendant’s legal costs, and on rare occasions, attorneys’ fees.

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.

On November 15, 2021, the West Hollywood city council enacted an ordinance that establishes a local minimum wage, and requires employers to provide paid and unpaid leave benefits. On May 16, 2022, the city council approved amendments to the ordinance and published Administrative Regulations (637879708613130000 (weho.org)) regarding the law, discussed below.

The ordinance’s minimum wage and leave benefits are restricted to only hourly, non-exempt, employees. There are also exceptions available for unionized employees subject to a collective bargaining agreement. 

On May 23, 2022, the U.S. Supreme Court issued a unanimous decision in the case of Morgan v. Sundance, Inc., which held a party’s waiver of the right to arbitrate a dispute by virtue of a delay in seeking enforcement of the arbitration agreement, no longer requires a showing of prejudice to the party opposing enforcement of the arbitration agreement. Prior to this, the circuit courts followed the rule of determining whether prejudice existed prior to finding waiver. After the Morgan decision, the analysis reverts to the standard contract waiver analysis “focus[ing] on the actions of the person who held the right; ... [rather than] the effects of those actions on the opposing party.” This new rule applies whenever a party seeks to stay litigation and enforce an arbitration agreement under the Federal Arbitration Act (“FAA”).

The federal Fair Credit Reporting Act (“FCRA”) permits background checks for employment purposes, so long as employers obtain authorization from and provide the appropriate “stand-alone” disclosure to the applicant or employee regarding the background check, among other requirements. Willful violations of the FCRA’s stand-alone disclosure requirement can lead to recovery of statutory damages ranging from $100 to $1,000 per violation. Thus, a central issue in FCRA cases is whether the employer’s violation is “willful,” which requires a showing that the defendant’s conduct was “intentional” or “reckless.” 

It is not uncommon for employees who use employer-provided vehicles during their workday, to also use the employer-provided vehicles for commuting to and from their work location, and/or to continue using the employer-provided vehicle for personal use during non-work hours.  In general, employee use of employer-provided vehicles after working hours may subject employees to taxable wages in the form of additional compensation, or “fringe” income; notwithstanding situations where the employee is generally on-call, and/or is expected to respond to emergency situations from their home or other non-work locations.

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. 

California’s new statewide supplemental paid sick leave (SPSL) law, SB 114, went into effect on February 19, 2022. SB 114 required the State’s Labor Commissioner to issue a “model notice,” which employers must then post in the workplace or, if an employer’s employees do not frequent a workplace, the employer must distribute the notice electronically (such as by email). On February 16^th, the Labor Commissioner issued the new model notice, which is available here.