Word on the Street

The Archer Norris Employment Blog

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Employers take note! A Court held an employer’s ignorance of a higher minimum wage set by local ordinance can constitute a “willful failure to pay”, resulting in waiting time penalties. California courts are permitted to award an employee a waiting time penalty (of up to 30 days’ worth of the employee’s wages), if the employer “willfully fails to pay” the employee her full wages immediately (if discharged/terminated), or within 72 hours (if she quits)¹. A…
In Scott v. Gino Morena Enterprises, the Ninth Circuit clarifies that the statute of limitations period for filing a Title VII suit commences after the EEOC issues a right-to-sue notice. Plaintiff Scott sued her employer in federal court, alleging sexual harassment and retaliation at a barbershop at Camp Pendleton where she worked. She brought suit under Title VII of the Civil Rights Act of 1964. Under Title VII, a plaintiff must exhaust her administrative remedies…
The California Supreme Court’s ruling this morning in Alvarado v. Dart Containers may have many employers scrambling to verify their overtime pay calculations. The Court rejected Dart’s complicated overtime calculations, which utilized a multiplier of 0.5 instead of 1.5, and which, in calculating the “regular rate” of pay to determine overtime pay, used a divisor of the total hours worked, including overtime. According to the Supreme Court, to account for overtime premium associated with a…
The health care industry has long allowed employees to voluntarily waive one of the 2 meal periods on shifts greater than 12 hours. Plaintiffs in Gerard v. Orange Coast Memorial Medical Center argue, however, that such a waiver violates Labor Code section 512, which does not allow waivers on shifts longer than 12 hours. Defendants argue that section 11 of Wage Orders 4 and 5 control their meal period obligations, notwithstanding section 512. (Section 11…
The NLRB flip-flops again. After less than 3 months, the test as to whether the 2 or more entities will be deemed joint employers is back to the 2015 standard announced in the Board’s Browning-Ferris decision. Just in December 2017, the Board overruled Browning-Ferris in a 3-2 decision, Hy-Brand, which requires a showing that the company alleged to be a joint employer actually exercised some “direct and immediate control” over the essential employment terms of another company’s employees. On February…
A second Court of Appeal has ruled that discrimination against a person’s sexual orientation is a civil rights violation, in an unusual case where two federal bodies, the EEOC and the Justice Department, took opposite sides. In Zarda v. Altitude Express, Inc. et al, the federal appeals court in New York agreed with the EEOC that bias against sexual orientation necessarily discriminates on the basis of sex. While the employer, Altitude Express, Inc. is uncertain…
While still new enough that most employers don’t yet know what a “PAGA” claim is, a claim under PAGA (the four letter acronym for Private Attorney General Act) can indeed be a curse to those employers unlucky enough to have made its acquaintance. You see, under the Labor Code PAGA, aggrieved employees are allowed to file suit on behalf of the State of California Labor and Workforce Development Agency, themselves, and other employees to collect…
Employers, it’s time to pull out the drafting pen and make an important change to your job application forms. Almost all job applications ask for basic information, including the applicant’s education and job history.  Under job history, application forms usually seek the names of prior employers, positions held, dates of employment, and salary history. But starting January 1, 2018, it will be illegal in California to ask, directly or indirectly, for an applicant’s salary history.…
Under the New Parent Leave Act, employees who work for a company with 20 or more employees within a 75-mile radius may take up to 12 weeks of job-protected leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.  To qualify for leave,  employees must have worked for the employer for more than 12 months and worked at least 1,250 hours during the previous 12 months. …
California employers who share or interchange employees with another employer should know about the joint employer doctrine and its potential impact on an employer’s status as a “joint employer” for leave of absence purposes under the California Family Rights Act (CFRA) and federal Family and Medical Leave Act (FMLA). A private employer is covered under FMLA and CFRA if it is engaged in any business or enterprise in California and directly employs 50 or more…