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As a consistent trend-setter in passing employee-friendly legislation, California has enacted the country’s first workplace violence prevention safety requirements applicable to nearly all employers in the state.

SB 553 requires California employers to adopt a comprehensive workplace violence prevention plan, train employees on workplace violence, and begin logging incidents by July 1, 2024.

Detailed Requirements for a Written Plan

The workplace violence prevention plan must be written, available and easily accessible to employees (as well as authorized employee representatives and Cal/OSHA representatives).Continue Reading California Employers: Prepare Your Workplace Violence Prevention Plan (Deadline In T-Minus 3 Months)

California’s regulators have made employment noncompetes (and knowing which employees are bound by them and how!) a key compliance item.

Effective January 1, 2024, AB 1076 amends Section 16600 of the state’s Business and Professions Code to “void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment

Special thanks to co-authors Thomas Asmar, Victor Flores, Denise Glagau, Christopher Guldberg, Jen Kirk, Maura Ann McBreen, Lindsay Minnis, Kela Shang, Aimee Soodan and Brian Wydajewski.

As many readers likely know, last fall California doubled-down on the state’s hostility to noncompete agreements. Assembly Bill 1076 codified the landmark 2008 Edward v. Arthur Andersen decision that invalidated all employment noncompetes, including narrowly tailored ones, unless they satisfy a statutory exception.
   
AB 1076 also added new Business & Professions Code §16600.1, requiring California employers to notify current (and certain former) employees that any noncompete agreement or clause to which they may be subject is void (unless it falls within one of the limited statutory exceptions).

Individualized written notice must be sent by February 14, 2024 or significant penalties may apply.Continue Reading Don’t Miss California’s Noncompete Notice Requirement (Deadline 2/14/24) |Review Equity Award Agreements & Other Employment-Related Contracts ASAP

Does your holiday wish list include CLE credit and a quick tutorial on what to expect in California labor and employment law next year?

Excellent!

Join us for our virtual California 2023-2024 Employment Law Update on Wednesday, December 13 @ 1PM PT.

2023 has been a year of dramatic change for California employers, but have

In Raines v. U.S. Healthworks Medical Group, the California Supreme Court expanded the definition of an “employer” under the state’s discrimination statute to include certain third-party business entities that perform employment-related functions on behalf of employers. These agents may now be deemed “employers” such that they can be directly liable for employment discrimination under the Fair Employment and Housing Act for certain activities that they carry out on behalf of employers.

Overview of Raines

The Raines‘ plaintiffs were job applicants who received offers of employment that were conditioned on the successful completion of pre-employment medical screenings conducted by a third-party company that used automated decision-making. Plaintiffs alleged that the screening form contained intrusive questions regarding their medical history that violated FEHA. They brought claims against their employers, as well as the third-party provider that conducted the medical screening. The question for the Court was whether business entities acting as agents of an employer, can be considered “employers” under FEHA and held directly liable for FEHA violations caused by their actions.

The Court examined the plain language in FEHA’s definition of “employer” and concluded that the definition did indeed encompass third-party corporate agents like the medical provider in his case. FEHA defines an employer as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly.” Here, the Court reasoned, recognizing the medical provider as an agent of the employer extended liability to the company most directly responsible for the FEHA violation.Continue Reading Automated Decision-Making and AI: California Expands FEHA Liability to Include Third-Party Business Agents of Employers

As volatility and uncertainty in the global economy continues, many multinationals are taking (or considering) major changes to their workforce composition. Labor costs are typically the largest cost center for any company, so of course businesses need to understand how best to flex up and down as markets change. At the same time, a company’s

Together we navigated operational challenges caused by the pandemic, and together we will weather this. What follows is information and practical advice for employers concerned with satisfying their payroll obligations in the near term in the face of their bank falling into receivership.

  • Identify the “universe” of employment-related expenses. This will include payroll, benefits, bonus and commission comp, insurance, and severance obligations.
  • Understand that liability for unpaid wages can be significant. For example, liability in California includes:
    • Back payment of any unpaid wage amounts that employees prove they were legally entitled to.
    • Interest of up to 10% of the unpaid wages.
    • Penalties for late payment of wages equal to: (i) $100 for the first violation; and (ii) for each subsequent violation, $200 plus 25% of the amount unlawfully withheld. Penalties may apply for each pay period that wages remain unpaid.
    • If any employees leave the company after the payday date, the company can be liable for waiting time penalties for late payment of final wages. Waiting time penalties are equal to 1 day’s wages for each day an employee’s final wages are unpaid, up to a maximum penalty of 30 days’ wages.
    • Companies may be required to pay employees’ attorney’s fees if the employees prevail in litigation.
    • Criminal liability for wage theft if the act is “intentional.” Felony cases are punishable by up to 3 years in prison.  

Continue Reading Navigating Fallout From a Bank Receivership | Practical Tips for US Employers

On February 21, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb holding that employers may not offer employees separation or severance agreements that require employees to broadly waive their rights under the National Labor Relations Act (NLRA). In McLaren, a hospital furloughed 11 employees, presenting each with a severance agreement and general release that contained confidentiality and non-disclosure provisions. (See the exact provisions copied below.) The Board majority held that merely “proffering” a severance agreement containing unlawful confidentiality and non-disparagement provisions violated the NLRA because conditioning the receipt of benefits on the “forfeiture of statutory rights plainly has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights.”

At first blush, this may feel like a sweeping change requiring immediate action. However, it is important to consider this decision with a grain (or two) of salt, breathe and thoughtfully plan your next steps. The key points identified below are designed to help you think through a tailored approach for your organization¾there is not a one-size-fits-all solution. Your approach will depend on the type of workforce you have, your risk tolerance and what you are trying to protect. We are standing by, ready to assist, should you need further guidance.

Key Points

  • For most private, nonunion employers, the risk of an unfair labor practice charge is relatively low. While it is absolutely true that the NLRA does indeed apply to most private sector employers, the NLRB and unions tend to focus more on unionized workplaces. (If you have a unionized or partially unionized workforce, the risk is higher but read on.)

Continue Reading You’ve Heard That The NLRB Restricted The Use of Confidentiality & Non-Disparagement Provisions In Separation Agreements. Here’s What Employers Need To Do About It.

Effective April 10, covered New Jersey employers must comply with new requirements under the New Jersey mini-WARN Act. New Jersey will join New York and Maine as one of three jurisdictions where employers are required to provide 90 days’ advanced notice to affected employees. (See our prior blog here).

Key changes to NJ-WARN include the following:

  • The employers covered by NJ-WARN has been expanded by the amendments, to include any employer who employs 100 or more employees, whether full-time or not (previously it required employment of 100 or more full-time employees).
  • The threshold for a “mass layoff” triggering NJ-WARN has been reduced significantly. Under the amended law, a “mass layoff” means the termination of 50 or more employees at a covered establishment in a 30-day period. Previously, a mass layoff meant (i) the termination of 50 or more employees comprising 1/3 of the workforce at the establishment, or (ii) the termination of 500 or more employees.
  • The scope of employees that count toward the 50-employee threshold for a “mass layoff” has been expanded:
    • Both employees “at” the establishment and “reporting to” the establishment are counted, which may include remote employees in New Jersey as well as other states. Prior to the amendments, the threshold for a mass layoff included 50 or more employees “at” the establishment.
    • Both part-time and full-time employees must be counted toward the threshold. Previously, only full-time employees counted toward the threshold.
  • The definition of a covered “establishment” has been expanded to include a non-contiguous group of locations / facilities of an employer within the State (previously it applied to contiguous worksites / office parks of an employer). Based on the amendment’s legislative history, this appears to be aimed at retail companies with multiple locations in the State. However, it is unclear how this could apply to largely or entirely remote workforces, and how it “squares” with the inclusion of remote, out of state, employees in the 50 employee threshold.
  • Covered employers will be required to provide at least 90 days’ notice (as opposed to the prior 60 days’ notice) before the first termination of employment occurs in connection with a termination or transfer of operations, or mass layoff. If the employer fails to provide 90 days’ notice, the employer is required to provide the terminated employee with four weeks of pay (which is a new requirement) in addition to statutory severance (see next bullet point).
  • In addition to notice, covered employers will be required to provide severance pay equal to one week of pay for each full year of employment to each terminated employee. (Previously, the law required one week of severance pay for each year worked only if the employer failed to provide the required 60 days’ notice.)

Overall review of NJ-WARN amendments

Here’s a quick review of what will be required once the amendments take effect.

Triggering events

NJ-WARN applies to employers with 100 or more employees anywhere in the US, when:

  • A covered establishment transfers or terminates operations which results, during any continuous period of not more than 30 days, in the termination of 50 or more employees; or
  • An employer conducts a mass layoff (i.e., termination of 50 or more employees in a 30-day period) at a covered establishment.

Terminations for cause or poor performance excluded

Although NJ-WARN’s “termination of employment” definition excludes (1) voluntary departures, (2) retirement, and (3) terminations for misconduct, the statute does not clearly specify whether ordinary terminations for cause or poor performance can trigger its requirements. But our research into NJ-WARN’s legislative history strongly suggests that terminations for cause or poor performance are not covered by NJ-WARN. In the February 27, 2006 New Jersey Assembly Labor Committee hearing, NJ-WARN’s lead senate sponsor clarified that the legislation was not intended to apply to employees terminated for poor performance.

Note on aggregation

Under the new amendments, an employer whose layoff decision affects employees at multiple New Jersey worksites may be subject to NJ-WARN’s notice and severance requirements even if less than 50 employees are terminated at each individual worksite.

To determine whether a termination or transfer of operations or mass layoff is subject to NJ-WARN’s notification requirements, employers generally must aggregate any terminations of employment for two or more groups at a single “establishment” occurring within any 90-day period. If the aggregate number of terminations of all the groups is 50 or more, then the terminations are subject to NJ-WARN’s notice and severance requirements (unless the employer can demonstrate that each group’s cause of terminations is separate and distinct from the other groups’ causes). And since the definition of an “establishment” has been expanded to include an employer’s non-contiguous group of locations / facilities within New Jersey, multi-site employers should consider the aggregate impact of any layoff decision affecting multiple worksites.

Remote workforce

NJ-WARN’s updated “mass layoff” and “establishment” definitions have also created some ambiguity regarding the statute’s application to remote employees. Specifically, a “mass layoff” now includes employees “at or reporting to” the “establishment.” And since “establishment” has been amended to include “a group of locations,” there is an argument that terminated remote employees should be counted for purposes of determining NJ-WARN applicability. But the legislative history of the NJ-WARN amendments suggests the changes were aimed at retail companies with multiple locations in New Jersey, and therefore NJ-WARN’s application to remote employees remains unclear.Continue Reading Next Month NJ Employers Must Comply With New Not-So-Mini Obligations Under Its Mini-WARN Act

The Ninth Circuit recently addressed the issue of whether an employer is required to provide pay for employees taking short-term military leave when it offers other types of short-term paid leave. In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit revived a class action claiming discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the failure to pay short-term military leave.

What is USERRA?

USERRA—a federal law applicable to both private and public employers—provides that a service member employee is entitled to the same “rights and benefits” during a military leave as similarly situated employees on non-military leave. Under USERRA , where the benefits of comparable non-military leaves differ, the employer must give the service member “the most favorable treatment” accorded to any comparable non-military leave.Continue Reading Paid Leave For USERRA? We Recommend a Comparability Analysis