California employers have a lot to keep their eye on over the last few weeks. For this week’s Friday’s Five article, here is a list of five key issues California employers should know about and how these issues will likely impact their workplace:
1. New decision approves striking unmanageable PAGA claims.
In Wesson v. Staples The Office Superstore, LLC, the California Court of Appeals held that trial courts have inherent authority to ensure that Private Attorney General Act (PAGA) claims are manageable at trial, and may strike PAGA classes that are not manageable. Plaintiff’s lawsuit was on behalf of 346 Staples general managers, arguing that the GM’s were misclassified as exempt employees. Plaintiff contended that the trial court lacked authority to ensure PAGA claims are manageable arguing that there is no requirement of manageability in the PAGA statute. Defendant argued that plaintiff’s claims would require individualized assessments for each GM to determine if each individual GM was properly classified, and that this would lead to “an unmanageable mess” that “would waste the time and resources of the Court and the parties.”
The holding in Wesson provides defendants an additional defense against the tide of PAGA claims filed against California employers.
2. California COVID-19 supplemental paid sick leave set to expire September 30, 2021.
California’s supplemental paid sick leave that requires employers with more than 25 employees is set to expire on September 30, 2021. The law requires employers to provide up to 80 hours of paid leave for certain qualifying reasons. Absent emergency legislation or an executive order by Governor Newsom, this requirement will end on September 30.
Employers need to be aware of local city or county ordinances that still may be in place requiring paid sick leave for employees.
3. Vaccination mandates on the federal, state, and local levels.
On September 9, 2021, Biden announced a move to mandate private employers with more than 100 workers to require vaccinations or to test for COVID-19 on a weekly basis. More information about Biden’s vaccine mandate can be read in our prior post here. As of the date of this writing, OSHA has not published any guidelines or requirements for employers. This requirement is likely to be announced within the coming weeks. It has been reported that employers will have 50 to 90 days to comply with the requirements once they are announced.
California does not have a general state-wide mandate (but this could also change in the coming weeks – likely through additional rules made through Cal/OSHA’s ETS). California does have mandates for teachers and school staff, and for certain health care workers who must be vaccinated by September 30, 2021.
In addition, many local counties and cities have passed or are considering vaccination mandates, such as Los Angeles City and Palm Springs (which only applies to patrons). Los Angeles County will be issuing a new Health Officer Order requiring patrons and employees of indoor bars, wineries, breweries, nightclubs and lounges. The order will require customers and employees to have at least one dose by October 7, and the second dose by November 4.
4. New case upholding ban of mandatory arbitration agreements in California.
In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit upheld portions of California’s AB 51 that makes it an unlawful practice for employers to require applicants or employees to enter into arbitration agreements as a condition of employment. More information about the decision is in our prior post here. In short, employers with voluntary arbitration programs are unaffected, as AB 51 only regulates mandatory agreements. Also, existing mandatory arbitration agreements are not invalidated, but employers with mandatory arbitration programs should consult legal counsel for guidance on this new decision.
5. California Supreme Court reviewing extend of penalties available in meal and rest break cases.
In Naranjo v. Spectrum Security Services, the California Supreme Court is reviewing the extent of penalties that a plaintiff can recover for meal and rest break violations. At issue in the case is whether a violation of Labor Code section 226.7, which requires payment of premium wages for meal and rest break violations, also triggers penalties under Labor Code section 203 (waiting time penalties) and section 226 (wage statement violations). The case is fully briefed by the parties. The Court’s ruling will greatly impact the value of wage and hour cases being litigated in California. We will report on the decision once it is issued.