Labor & Employment Law Blog

In a welcome surprise to the trucking industry, the Ninth Circuit Court of Appeals on January 15, 2021, upheld the Federal Motor Carrier Safety Administration’s (“FMCSA”) December 2018 determination that California’s meal and rest break rules (“MRB rules”) are preempted by federal law and do not apply to commercial truck drivers engaged in interstate commerce.  California’s strict meal and rest break laws require more breaks, more often, and with less flexibility as to timing than the federal hours-of-service regulations do for commercial drivers.  The decision is a welcome reprieve for the trucking industry which has faced a fair share of wage and hour battles in California over the last decade.

Unfortunately, there can be no doubt that the political environment in the United States right now has everyone a little bit on edge, especially in the midst of an ongoing international health crisis.  Passions are running high, and tempers are flaring; however, California employers have particular cause to exercise caution and diligence when their employees voice and/or demonstrate their political beliefs.

On December 22, 2020, the United States Department of Labor (“DOL”) finalized a rule opening tip pools to employees who do not normally receive tips themselves. As the restaurant industry looks towards easing lockdown restrictions and a hopeful return to “business as usual” in 2021, California restaurants should be mindful of the impact of the DOL’s new regulations.

If this sounds like an oxymoron to you, join the crowd.  For years, California employers have relied on the principle that plaintiffs cannot prevail under Government Code section 12940(k) for “failure to prevent” discrimination (or harassment or retaliation) if the plaintiff does not prevail on the underlying claim.  The failure to prevent cause of action has been viewed as a derivative cause of action that stems exclusively from a finding that discrimination, harassment or retaliation actually occurred.  Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 925, fn. 4.  The Carter rule has been used as a successful tool for employers when filing motions for summary judgment and eliminates “failure to prevent” tag-a-long claims when the underlying law is not broken.

On January 4, 2021, a California appellate court held an employer waived its right to enforce an arbitration agreement against a truck driver who filed a wage and hour class action against it, by waiting almost twenty months after the case was filed to make an arbitration demand.  The court held that the delay was unjustified because the employer’s conduct in defending the case in court for that period of time was inconsistent with its right to arbitrate and because such delay prejudiced the employee’s ability to use the benefits and efficiencies of arbitration. Garcia v. Haralambos Beverage Co., No. B296923, 2021 WL 22015 (Cal. Ct. App. Jan. 4, 2021).

The U.S. Department of Labor (“DOL”) just announced a “final rule” setting forth the standard for worker classifications – employee versus independent contractor – under the Fair Labor Standards Act (“FLSA”).  The FLSA establishes federal minimum wage, overtime pay, recordkeeping, and youth employment standards for the public and private sectors.  All employers in the United States must abide by the FLSA; however, many states, including California, set forth more stringent requirements for worker classifications. 

Recently, a California Court of Appeal held that crew members on a ship that provided maintenance services to offshore oil platforms were governed by California’s wage payment laws.  The decision, in the case of Gulf Offshore Logistics v. Superior Court, held that the State’s laws applied to such employees because California served as the basis for their operations, even though they resided in other states and their employer was located in Louisiana.  Gulf Offshore Logistics, LLC v. Superior Court of Ventura Cty., WL 7137048 (Cal. Ct. App. Dec. 7, 2020).

On September 29, 2020, Governor Newsom signed Assembly Bill 1963 expanding the list of mandated reporters in California.  Existing law, the Child Abuse and Neglect Reporting Act, requires mandated reporters to report whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observe a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Failure by a mandated reporter to report an incident of known or reasonably suspected child abuse or neglect is a misdemeanor punishable by up to six months of confinement in a county jail, by a fine of $1000, or both. 

California Labor Code section 1102.5 is an expansive whistleblower statute frequently used by plaintiffs’ attorneys to sue for wrongful termination.  Section 1102.5’s many protections include prohibiting employers from adopting rules preventing employees from making complaints (sub (a)), prohibiting retaliation against an employee who has “reasonable cause to believe” that an activity may be illegal (sub (b)) and prohibiting retaliation against an employee who refuses to participate in an activity that is illegal (sub (c)).  Subsection (d) also protects employees from retaliation based on conduct at prior employment.

On August 18, 2020, the Sonoma County Board of Supervisors enacted an emergency ordinance to establish supplemental Paid Sick Leave (“PSL”) requirements for private employers with employees who work in its unincorporated areas. The Paid Sick Leave Ordinance (“PSLO”) became operative immediately upon enactment and will run concurrently with the federal Families First Coronavirus Response Act (“FFCRA”), expiring on December 31, 2020; however, the PSLO would be automatically extended by any extension of the provisions of the FFCRA.