The hot weather facing southern California has also brought a flurry of developments for California employers. The beginning of July 2018 has been busy, and there is a lot of new developments potentially impacting California employers. This Friday’s Five focuses on current topics facing California employers this past week:
1. California’s new data privacy law.
While not directly employment law related, it is important enough to mention. California enacted a sweeping new law to protect the data privacy of its citizens. The law requires companies to comply with new regulations regarding how they obtain and share personal information. Companies must comply with the new law by 2020, and there is a likelihood that the law will be modified prior to its implementation date. Fast Company has a good overview for some of the impacts of the new law. The entire bill can be read here.
Employers should continue to watch to see if this law is amended or if other similar laws are proposed that apply to employee information specifically. As written about previously, biometric data is only regulated by three states, Illinois, Texas, and Washington state, which have laws requiring a notice and voluntary consent before biometric information is collected by private companies. California’s new law will likely lead to many other states or the federal government to begin to regulate obligations companies have with respect to this information.
2. Parts of California’s new 2018 immigration laws put on hold by Federal District Court.
As previously written about on this blog, employers were put in a precocious position between the federal government’s position on immigration enforcement on one hand, and California’s position on immigration enforcement on the other hand. Any misstep by employers could expose them to penalties on either side of the equation. A Federal District Court recognized the difficult position facing employers under both laws, and put a temporary hold on California’s ability to enforce portions of new laws that private employers had to comply with as of January 1, 2018. The court explained:
This Motion presents unique and novel constitutional issues. The Court must answer the complicated question of where the United States’ enumerated power over immigration ends and California’s reserved police power begins. The Court must also resolve the issue of whether state sovereignty includes the power to forbid state agents and private citizens from voluntarily complying with a federal program.
The court enjoined California from enforcing Labor Code sections 7285.1 and 7285.2. Therefore, for now (but subject to change), California employers cannot be prosecuted for consenting to immigration enforcement agents’ access to nonpublic areas or employment records. The court also enjoined California from enforcing section 1019.2, which prohibited employers from re-verifying the employment eligibility of current employees. This ruling is very early in the case based on the United States’ motion for preliminary injunction against the State of California. The court will review the issues and made a final determination later in the case, so employers need to follow any developments.
3. Juarez v. Wash Depot Holding, Inc. – Holding that arbitration agreement is unenforceable.
This ruling (link to opinion here) is a good reminder to employers who implement arbitration agreements to have the agreements reviewed by counsel on a periodic basis and to ensure that any translations of the document are accurate. Plaintiffs challenged the enforceability of the arbitration agreement in this case because it prohibited the employee from bringing a claim under California’s Private Attorney General Act (PAGA). The English version of the arbitration agreement provided that the PAGA waiver was severable from the handbook if it was found to be invalid, but the Spanish version of the arbitration agreement provided that the PAGA waiver was not severable. Based on these facts, the court held that the arbitration agreement was unenforceable as written.
4. Twitter defeats class certification in gender bias case.
Plaintiff Tina Huang sought to certify a class action lawsuit against Twitter on behalf of 135 women who worked at the company. In applying the standards set by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011), the court held that the plaintiff failed “to demonstrate that Twitter’s managers employed a ‘common mode of exercising discretion’ or that Twitter had a ‘uniform employment practice’ that affected the way managers exercised discretion and resulted in disparate impact on women….” The Dukes case set forth that in a disparate impact case, an employer’s policy of allowing managers discretion over promotion decisions cannot satisfy the commonality requirement for class certification, unless there is a “common mode of exercising discretion” or a “uniform employment practice” that serves as the “glue” for all of the class members’ claims.
5. New national origin regulations and local minimum wage increases took effect on July 1, 2018.
New California regulations impact employment practices such as English-only policies, height and weight requirements, and documents applicants or employees may be required to provide for employment. More information can be found here.
Many local cities and counties increased their minimum wage effective July 1, 2018. More information can be found here.
Hope you are staying cool this weekend.