California Developments

California: Making Arbitration Great Again

Julia Riechert and Jessica R. L. JamesPosted on August 23, 2016

California’s resistance to the longstanding federal policy favoring arbitration frequently results in public expressions of frustration by the justices of the U.S. Supreme Court. In over five years since the Supreme Court’s broad directives in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), recent California decisions, including our recent coverage of the California Supreme Court’s holding in Sandquist v. Lebo, Case No. S220812, 2016 WL 4045008 (Cal. July 28, 2016), suggest that the state’s stubbornness may be waning, at least for the time being. The following summarizes key decisions that diverge from California’s traditional resistance to arbitration and which every employer should have in their arsenal of tools.

California Supreme Court Holds “No Universal Rule” Exists When Deciding Who Should Determine Availability of Classwide Arbitration

Andrew LivingstonPosted on August 19, 2016

On July 28, 2016, the California Supreme Court added to the ever-changing body of case law regarding classwide arbitration when it held that “no universal rule” exists regarding who (the court or the arbitrator) should decide whether classwide arbitration is permissible under an arbitration agreement, and that this issue must be decided on a case-by-case basis.

California Legislators Aim to Make Prior Salaries a Thing of the Past

Stephanie LeePosted on June 30, 2016

A few months ago, the California State Assembly introduced AB 1676, a bill that not only would have prohibited employers from asking job applicants about their compensation history, but also would have required employers to provide pay scale information upon reasonable request. A nearly identical bill passed through the Assembly and Senate before it was vetoed by the Governor toward the end of last year. In his veto statement, the Governor expressed concern that such a measure “broadly prohibits employers from obtaining relevant information with little evidence that [it] would assure more equitable wages.”

As we previously reported, the Fair Pay Act (the “FPA,” Labor Code § 1197.5) requires “equal pay for substantially similar work” based on the employee’s skill, effort and responsibility, and similar working conditions. To the extent a disparity exists between employees of the opposite sex, it must be reasonably based on one or more the factors enumerated within the statute.

Perhaps hoping to avoid repeating history, proponents of AB 1676 have taken a new approach. In place of the provision prohibiting inquiries about prior salary history is new language that amends the FPA to state that “[p]rior salary shall not, by itself, justify any disparity in compensation.”

It’s Contagious: Paid Sick Leave and Minimum Wage Hikes Spread to Los Angeles and San Diego

Jessica R. L. James and Katie BriscoePosted on June 21, 2016

Paid sick leave is on the rise, as we reported here, here, here, and here. As we approach the one-year compliance anniversary for state-mandated paid sick leave, employers now face additional compliance wrinkles in the Los Angeles and San Diego markets. Earlier this month, both Los Angeles and San Diego passed paid sick leave and minimum wage ordinances that take effect (and require compliance) as soon July 2016.

Employers Left Hanging Again: Coates v. Farmers Reaches Settlement & Still No Answers on Interpreting California’s Fair Pay Act

Erin Connell and Allison Riechert GiesePosted on May 10, 2016

Plaintiff Lynne Coates filed a class action lawsuit against Farmers on April 29, 2015 alleging gender discrimination claims under Title VII and California’s Fair Employment and Housing Act, including violations of the federal and California equal pay acts and California’s Private Attorneys General Act. In this post on Orrick’s Equal Pay Pulse blog, Orrick attorneys Erin Connell, Allison Riechert Giese and Megan Lawson examine Coates v. Farmers and what it means for employers as well as future equal pay claims in California.

It’s All Relative: A California Court Says Employers Must Accommodate Employees “Associated” With a Person With a Disability

Michael Weil and Jessica R. L. JamesPosted on April 29, 2016

In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled. Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016). This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.

California Bill Seeks to Enable Independent Contractors in the “Gig Economy” to Organize, Bargain, and Strike

Julie Totten and Ian AdamsPosted on March 24, 2016

In what could prove a harbinger of worker classification developments to come, Assembly Member Lorena Gonzalez (D – San Diego) has proposed AB 1727, “The California 1099 Self-Organizing Act.” The bill, which is at the earliest stages of the legislative process, would provide an avenue for certain workers classified as independent contractors to engage in “group activities” including organizing, bargaining, and striking. At bottom, the legislation would give certain independent contractors the ability to collectively confront those with whom they contract.

Game-Changing Overtime Regulations Advance to OMB Ahead of Schedule, Final Rule Could Arrive as Early as April 2016

Gary Siniscalco and Stephanie LeePosted on March 24, 2016

The U.S. Department of Labor (DOL) sent its much anticipated final overtime regulations to the Office of Management and Budget (OMB) for review on March 14, 2016. Technically, this move came slightly ahead of schedule. OMB now has 90 days to review, which would put its “due date” in mid-June – ahead of the July regulatory agenda publication date we previously reported. However, as these overtime regulations are a top-line priority subject to intense political scrutiny, there is reason to believe OMB may not complete its review within the 90-day window.

It Isn’t An April Fool’s Joke – New Amendments to California’s Laws Against Discrimination Become Effective April 1

Jessica Perry and David B. SmithPosted on March 9, 2016

The adage that “there is no rest for the weary” is perhaps an all too familiar one for California employers. Although employers might have already spent the past few months implementing a host of new laws that took effect in early 2016, there has been less fanfare about the upcoming regulatory amendments under the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.) that go into effect April 1, 2016.

Latest California Equal Pay Legislation Targets Race and Ethnicity

James McQuade and Katie BriscoePosted on March 2, 2016

As California employers adjust to recent amendments to the state’s Equal Pay Act, additional changes are looming. As we reported here, last year, California adopted the Fair Pay Act, which provides new pay equity provisions related to employees of the opposite sex. Those amendments took effect on January 1, 2016. Now, California lawmakers are setting their sights on pay disparities based on race and ethnicity. On February 16, 2016, California Senator Isadore Hall III (D-South Bay) introduced Senate Bill 1063, known as the Wage Equality Act of 2016 (“SB 1063”), which seeks to expand pay equity requirements beyond sex to include race and ethnicity.

Employment Law and Litigation