Special thanks to presenters Johan Botes (Johannesburg), Elif Nur Cakir Vurgun (Istanbul), Joanna Matthews-Taylor (Dubai) and Christiana O’Connell-Schizas (Riyadh)

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational employers with business operations in the Middle East and Africa hear directly from Elizabeth Ebersole and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting MEA. 

We invite you to register to reserve your spot at our final session wrapping up this series:

ASIA PACIFIC: Wednesday, June 22 at 3 pm PT / 5 pm CT/ 6 pm ET

Click here to view the program details, to register and to watch recordings of any sessions you may have missed.

The U.S. Supreme Court just handed employers a huge win in the continuing war over California’s Private Attorneys General Act (PAGA), a bounty-hunter statute that deputizes employees to sue on behalf of the state. In yesterday’s Viking River Cruises, Inc. v. Moriana, decision, the Supreme Court held that employers may compel employees to arbitrate individual PAGA claims, and that non-individual (representative) PAGA claims should be severed and dismissed by courts. (See our previous discussions of the Viking River Cruises case here and here).

The Viking River Cruises decision provides employers with a necessary defense to the ever increasing flood of PAGA claims and litigation.  Employers who already use arbitration agreements should immediately revise their templates to account for the Court’s holding. And employers who do not have arbitration programs in place now have another, compelling reason to roll out arbitration agreements: protecting their businesses against the very real threat of outlandish PAGA penalties for even minor, hyper technical violations of the California Labor Code.

Below, we recap the PAGA statute, the Court’s decision, and what employers should do now.

First, a little about PAGA

PAGA, enacted in 2004, permits a single employee to stand in the shoes of California’s Attorney General and file suit on behalf of other “aggrieved” employees to recover civil penalties for California Labor Code violations. Under existing California precedent, the PAGA statute effectively works a rule of claim joinder, allowing a single party to unite multiple claims against an opposing party in a single action. The penalties recoverable in a PAGA action can be substantial, with default penalties calculated as $100 “for each aggrieved employee per pay period for the initial violation,” and $200 per aggrieved employer per pay period for “each subsequent violation.” As such, potential PAGA claims easily reach millions of dollars against small employers, and tens of millions against large employers. Worse, PAGA claims often are founded on technical violations of the Labor Code, such as simple administrative oversights, that result in no real harm to employees. Under PAGA, the state keeps 75% of any PAGA award, with the remaining 25% distributed among the employees affected by the violation at issue.

California court decisions have expanded PAGA’s reach over the years. In 2009, the California Supreme Court held that employees bringing actions under PAGA need not comply with the procedural rules applicable to class actions, such as the need to show common issues that are capable of resolution through common proof. See Arias v. Superior Court, 46 Cal. 4th 969 (2009). Then, in 2014, the California Supreme Court held that employees could not waive their right to bring PAGA claims in court through arbitration agreements, paving the way for a significant uptick in PAGA litigation. See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014). The U.S. Supreme Court took issue with Iskanian in Viking River Cruises, and overruled the case in part.

What happened in Viking River Cruises

After quitting her job at Viking, Angie Moriana filed a PAGA action against Viking in California state court. Her complaint alleged that Viking had failed to provide her with her final wages within 72 hours, as required by Sections 201 and 202 of the California Labor Code. Moriana also asserted an array of other Labor Code violations allegedly suffered by other Viking employees-including violations of provisions concerning the minimum wage, overtime, meal periods, rest periods, timing of pay, and pay statements.

Moriana had entered into a mandatory arbitration agreement with Viking at the start of her employment, in which she agreed to arbitrate any dispute arising out of her employment. The arbitration agreement also contained a “Class Action Waiver”-providing that in any arbitral proceeding, the parties could not bring any dispute as a class, collective, or representative PAGA action-and a severability clause specifying that if the Class Action Waiver was found invalid, any class, collective, representative, or PAGA action would presumptively be litigated in court. However, under the severability clause, if any portion of the waiver remained valid, it would be enforced in arbitration.

Viking moved to compel arbitration of Moriana’s “individual” PAGA claim—her claim for damages arising from the alleged violation she personally suffered—and to dismiss the other PAGA claims that Moriana asserted on behalf of other employees as the deputized agent of the state. The trial court denied the motion, and the California Court of Appeal affirmed, holding that categorical waivers of PAGA standing are contrary to state policy and also that PAGA claims cannot be split into arbitrable individual claims and nonarbitrable “representative” claims (i.e., claims brought on behalf of other employees).

The California Court of Appeal’s ruling necessarily followed the holding of the California Supreme Court in Iskanian, which established two PAGA rules:

  • a principal prohibition that prevents parties from waiving representative standing (here, a “representative” as a proxy for the state) to bring PAGA claims in a judicial or arbitral forum, and
  • a secondary prohibition invalidating agreements to separately arbitrate or litigate “individual” PAGA claims for Labor Code violations that an employee suffered, on the theory that resolving victim-specific claims in separate arbitrations does not serve the deterrent purpose of PAGA.

Under Iskanian’s principal prohibition, the lower courts were required to treat the representative-action waiver in the agreement between Moriana and Viking as invalid to the extent it was construed as a wholesale waiver of PAGA standing. However, the agreement’s severability clause allowed enforcement of any “portion” of the waiver that remained valid, so the agreement still would have permitted arbitration of Moriana’s individual PAGA claim even if wholesale enforcement was impossible. But because California law prohibits division of a PAGA action into constituent claims, the state courts refused to compel arbitration of Moriana’s individual PAGA claim as well. The U.S. Supreme Court granted certiorari, and reversed.

What the U.S. Supreme Court said

The question before the U.S. Supreme Court was whether the Federal Arbitration Act (FAA) preempts the California rule invalidating the contractual waivers of the right to assert representative claims under PAGA.

The U.S. Supreme Court found that PAGA’s built-in mechanism of claim joinder is in conflict with the FAA. Iskanian’s prohibition on contractual division of PAGA actions into constituent claims circumscribes the parties’ freedom to determine by contract what issues are subject to arbitration and the rules by which they will arbitrate, violating the fundamental principle that arbitration is a matter of consent. The Court found a state rule imposing an expansive rule of joinder in the arbitral context would defeat the ability of parties to control which claims are subject to arbitration-and which ones are not-by permitting parties to “superadd” new claims to the proceeding, regardless of whether the agreement committed those claims to arbitration. When made compulsory by way of Iskanian, precisely as how PAGA’s joinder rule functions, the result is that the parties are effectively compelled to either go along with an arbitration in which the range of issues under consideration is determined by coercion rather than consent, or else forgo arbitration altogether. Either way, the Court said, the parties are coerced into giving up a right they enjoy under the FAA, and thus Iskanian’s rule is incompatible with the FAA.

Because Iskanian’s rule that PAGA actions cannot be divided into individual and non-individual claims is preempted, Viking was entitled to compel arbitration of Moriana’s individual PAGA claim. And because PAGA does not provide a mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding, the Supreme Court held that courts should dismiss non-individual, representative PAGA claims for lack of standing.

What employers should do now

The Viking decision is the light at the end of the tunnel California employers have been looking for since the Iskanian decision-and before. But employers should be diligent to ensure that their employment agreements and arbitration provisions will avail them of the benefit of this ruling. California employers should review form / template employment agreements with counsel for any necessary modifications, and work with counsel to make sure they are compliant with applicable pay, meal and rest break, and other requirements that are popular targets of PAGA claims. Contact your Baker McKenzie employment attorney for help understanding how the Viking decision impacts your workforce and for help with your employment needs.

We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of immigration and mobility alerts from around the world.

Please click here to view.

Special thanks to presenters Matias Herrero (Buenos Aires), Liliana Hernandez-Salgado (Mexico City), Maria Cecilia Reyes Jaimes (Bogota), Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*) and Andrew Shaw (Toronto)

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational employers with business operations in the Americas hear directly from Benjamin Ho and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting the Americas. 

We invite you to register to reserve your spot at our upcoming sessions:

MIDDLE EAST AND AFRICA: Wednesday, June 15 at 9 am PT / 11 am CT/ 12 pm ET

ASIA PACIFIC: Wednesday, June 22 at 3 pm PT / 5 pm CT/ 6 pm ET

Click here to view the program details, to register and to watch recordings of any sessions you may have missed.

 

Special thanks to panelist Nicholas Murray, of Twilio.

 

 

Join us for our webinar, “Measure What You Treasure,co-hosted by the ACC Foundation.

The first step in any organization’s strategic approach to advancing inclusion, diversity and equity is ensuring that accurate data exists. But diversity data collection can be challenging.  During this session our expert panelists will address the importance of data in your I&D strategy, how to get hold of it, what to do with it when you have it, and the related employment and data privacy law implications and considerations.

Date: Tuesday, June 21, 2022

Time: 1:00 – 2:00 pm ET

Click here to register.

Special thanks to presenters Nadege Dallais (Paris), Fermin Guardiola (Madrid), Danielle Pinedo (Amsterdam), Stephen Ratcliffe (London) and Bernhard Trappehl (Munich).

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational employers with business operations in Europe hear directly from Susan Eandi and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting Europe.

We invite you to register to reserve your spot at our upcoming sessions:

THE AMERICAS: Wednesday, June 8 at 9 am PT / 11 am CT/ 12 pm ET

MIDDLE EAST AND AFRICA: Wednesday, June 15 at 9 am PT / 11 am CT/ 12 pm ET

ASIA PACIFIC: Wednesday, June 22 at 3 pm PT / 5 pm CT/ 6 pm ET

Click here to view the program details and to register.

Employers in New York State may soon be required to disclose a salary range in job postings to applicants and employees. New York’s S9427 was just sent to Governor Kathy Hochul’s desk, and if signed, employers in New York State will join employers in New York City (read more here), Colorado (read more here), and Washington State (read more here) in including wages in job advertisements. If signed by Governor Hochul, the law will be effective 270 days after signing.

If Governor Hochul signs S9427 in the current version of the law, employers advertising a job, promotion, or transfer opportunity that can or will be performed, at least in part, in the state of New York would be required to do the following:

  • Disclose the compensation or “range of compensation” for the job, promotion or transfer opportunity. “Range of compensation” is defined as the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity. For commission-based jobs, promotions or transfer opportunities, employers meet the compensation disclosure requirement by including a “general statement” in writing that compensation is based on commission
  • Include in the advertisement a job description for the position, if one exists.

Who would be covered?

The law would cover “employers,” defined as:

  • (i) Any person, corporation, limited liability company, association, labor organization or entity employing four or more employees in any occupation, industry, trade, business or service, or any agent thereof; and
  • (ii) Any person, corporation, limited liability company, association or entity acting as an employment agent or recruiter, or otherwise connecting applicants with employers.

However, temporary employment agencies are excluded from the current version of the law.

Recordkeeping

Employers would be required to keep and maintain necessary records to comply with the law’s requirements, including, but not limited to, the history of compensation ranges for each job, promotion or transfer opportunity and the job descriptions for those positions, if they exist.

Violations / penalties

If S9427 is signed into law, individuals claiming they have been harmed by a violation of the law would be able to file a complaint with the New York State Department of Labor Commissioner (the “Commissioner”). Employers violating the law would be subject to civil penalties in accordance with New York Labor Law § 218, and employers would be prohibited from refusing to interview, hire, promote, or employ-or otherwise retaliating against-applicants or current employees for exercising rights under the law.

Will there be clarification?

Under S9427, the Commissioner would be required to promulgate rules and regulations to effectuate the law indicating further clarification through rulemaking and regulations if the bill becomes law.

What’s next for salary disclosure laws?

Stay tuned for further developments on S9427. And watch our video chat The Proliferation Of Pay Transparency Laws: What US Employers Need To Know for a summary of current salary disclosure laws, the trends we’re seeing and pending legislation employers should keep an eye on, including California’s SB 1162.  As always, contact your Baker McKenzie employment attorney for help with your employment needs.

We are pleased to share a recent Life Annuity Specialist article, “Why Insurers May Worry About New York’s Salary Transparency Law,” with quotes from Robin Samuel. This article discusses the likely impact of New York City’s new salary transparency law on insurers, other employers and job postings in New York City.

Click here to continue reading this article.

Original article published in Life Annuity Specialist.

 

Many thanks to our data privacy colleague, Helena Engfeldt, for co-authoring this article.

 

Many organizations are proactively advancing diversity and inclusion goals globally to include a focus on recruitment and employee-directed initiatives. These efforts are consistent with organizational values and business goals, even in cases where diversity data collection may have the potential to increase (rather than decrease) risks of discrimination claims. Beyond addressing D&I to comply with anti-discrimination laws, most organizations also consider it an urgent business need for commercial success. In moving from actions to outcomes, organizations are seeking to identify and utilize metrics to measure progress, impact and accountability to include the collection of diversity-related data. Privacy and employment law professionals are increasingly being asked to expand such programs globally.

Click here to continue reading this Article.

Original article published in IAPP.

Across the world, trade secrets are becoming increasingly important. As companies align workforce transformation, manage supply chain operations and balance the needs of their digital transformation journey, new strategies are required for the identification, protection and enforcement of their most valuable, complex and market-differentiating trade secrets.

In this series of bite-sized videos, hear from Baker McKenzie’s global trade secrets team across disputes, intellectual property, data & technology and employment & compensation on best practices for a strategic, multidisciplinary approach to manage your trade secrets, disputes and risks.


How Baker McKenzie Manages Trade Secrets Globally

Brad Newman (Partner, Palo Alto), Christine Streatfeild (Partner, Washington, DC), Celeste Ang (Partner, Singapore) and Jason Raeburn (Partner, London) talk about our Global Trade Secrets Group and uncover regional trends through this video.

Click here to watch the video.


Remote Working:
The New Normal and the Impact on Your Trade Secrets

Today’s remote working environment can lead to unexpected complications when employers seek to prevent the disclosure of trade secrets or enforce restrictive covenants. Stephen Ratcliffe (Partner, London) outlines some of the key trade secrets issues that arise in remote working scenarios and provides practical tips for avoiding common pitfalls.

Click here to watch the video.


Mexico’s New Trade Secrets Laws

In this episode, Marina Hurtado-Cruz (Partner, Mexico City) explores key changes to Mexico’s new trade secrets law under new legislation, including an expanded scope of protection for eligible subject matter and enhanced enforcement mechanisms.

Click here to watch the video.