By Pooja Patel and Anthony Zaller
July was a busy month for California employment law issues. The issue that dominated the news in July was the California Supreme Court’s ruling in Adolph v. Uber Technologies, LLC holding that employers cannot implement arbitration agreements with employees that waive the employee’s ability to bring claims on behalf of other employees, effectively overruling the U.S. Supreme Court’s Viking decision issued last summer. While this was a significant development that California employers need to assess, there are a number of other new developments that occurred in July. Here is a roundup of the other key issues impacting employers:
1. New I-9 Form and changes to verification process – November 1, 2023 deadline to implement.
On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced that it will release a new I-9 form on August 1, 2023. Employers may use the current I-9 form through October 31, 2023. Beginning November 1, 2023, Employers will be required to use the new I-9 form. While the new form has not been published yet, it appears to streamline and simplify the process. The changes include a checkbox for employers to check if they examined the I-9 documentation remotely, instead of by physical examination.
The Department of Homeland Security (DHS) has also ended the temporary COVID-19 rule that allowed for flexibility for in-person examination of the I-9 documentation. Moving forward, only employers who participate in E-Verify may examine the 1-9 documents electronically:
Employers who do not participate in E-Verify:
By August 30, 2023, must physically examine the identity and employment authorization documentations for all individuals hired on or after March 20, 2020, whose documents were previously only examined by virtual or remote examination under the COVID-19 flexibilities. Additionally, beginning August 1, 2023, these employers must perform in-person examinations.
Employers who participate in E-Verify:
Effective August 1, 2023, employers who participate in E-Verify and are in good standing, may examine the I-9 documents electronically using a live video call. As a reminder, employers who participate in E-Verify must photocopy all U.S. passports, passport cards, Permanent Resident Cards (Form I-551), and Employment Authorization Documents (Form I-766) and retain them with the Form I-9.
It is recommended that California employers develop and update a new hire packet each year. Given this new I-9 requirement, it is a good time for employers to update their entire new hire packet (and review and update their arbitration agreements given the Uber ruling).
2. Employees boast about having “lazy girl jobs.”
Social media has created new and rapidly evolving trends in the modern workforce. Another recent trend, sparking intense debates across the internet, is the phenomenon known as the “Lazy Girl Job.” As reported by the Wall Street Journal, a “Lazy Girl Job” is characterized by remote work, a laid-back boss, fixed working hours until 5 p.m., and an annual salary ranging from $60,000 to $80,000. Is it merely a shift in priorities among the younger generation, seeking better work-life balance? Or does it place unreasonable expectations on employers, where employees anticipate high pay for lesser work?
The pandemic changed employees’ outlook on work. Just like the “quiet quieting” trend, the “lazy girl job” discussion is yet another aspect of employees reevaluating their goals in life. Employers need to recognize that not all employees are motivated by money and have the drive to become an executive who works 80 hours a week. It is important to recognize this and have jobs and positions that fit each employee’s goals.
3. California’s Industrial Welfare Commission receives funding to issue updated Wage Orders in 2024.
Governor Newsom signed AB 102 on July 10, 2023 and a part of that bill funds the Industrial Welfare Commission (IWC) to reconvene to issue wage orders regulating the “wages, hours, and working conditions” for various industries. Therefore, employers need to expect new regulations in nearly every industry (as the current wage orders cover most industries) by October of 2024. AB 102 specifies that the wage order “shall not include any standards that are less protective than existing state law.”
Of concern for employers is that the IWC is made up a panel of appointed individuals and have quasi-legislative power to adopt wide-ranging employment regulations across California, but the process of adopting new regulations is not as open to public review compared to the legislative process. Just as the legislature is attempting to delegate its authority to an appointed council in the FAST Act, AB 102 is a clear move in delegating authority to unelected governing bodies, such as the IWC. This permits the governing bodies to issue unpopular regulations without having the elected officials to account for the new regulations with the voters. This is a concern, and it I am expected that we will be discussing the new wages orders and regulations extensively next year.
4. Report finds that nearly half of employees spend half of their workday on social media.
A new report finds that 48% of employees spend up to four hours a day during work on social media for personal use. As reported by SHRM, a Monster Worldwide survey found that employees are spending nearly half of their working time on social media. The next question usually posed by employer is how they stop this from occurring. But should employers embrace employee’s use of social media on the job? I’m of the opinion that social media has become a critical part of our lives – it is how we stay informed on current events, stay on top of what competitors are doing, and stay in touch with colleagues. Regardless, if social media did not exist, employers who were not engaging their employees or had unengaged employees still faced this problem, but the employees would have done something else with their time at work, such as read a book or day dream. I’d be curious to hear your thoughts: Is employee use of social media at work a problem, or should it be encouraged?
5. Zaller Law Group webinar discussing the impact of Adolph v. Uber Technologies on Thursday August 3, 2023.
As we reported on earlier, the California Supreme Court issued a game-changing decision in Adolph v. Uber Technologies for California employers. It effectively overruled the U.S. Supreme Court’s decision in Viking River Cruises, clearing the way for employees to bring a case on behalf of other employees in PAGA cases against employers. What does this mean for you as an employer? Our seasoned PAGA litigation attorneys are here to give you a deep dive into the impact of this ruling, practical guidance, best practices, and what the future might look like. Join us on Thursday, August 3, 2023 – registration is here.