NLRB Reverses Course on Browning-Ferris Standard for Defining “Joint Employers”

Last Thursday, the NLRB overruled the Obama-era NLRB’s decision in Browning-Ferris Industries, a 2015 ruling that loosened the standard for determining how much control over employees is required before a business entity can be held liable for infractions of federal labor law as a joint employer. Prior to Browning-Ferris, for two or more entities to constitute joint employers of a workforce, they had to share the ability to control only the essential terms and conditions of employment like hiring, firing, and directing employees. Further, this control must have been direct and immediate, and must have actually been exercised before an entity would be found a joint employer. Browning-Ferris changed that to a standard where “two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” How much of a departure this was from the previous standard only became clear as Browning-Ferris was applied and interpreted in successive Board decisions. Under these decisions, the Browning-Ferris standard would consider as a joint employer any entity with even indirect or unexercised-but-reserved authority to control or affect “essential terms and conditions of employment” reaching beyond the basics of hiring, firing,…

Google Defeats Equal Pay Act Class Action – For Now

Last week, in Ellis v. Google, Inc. a California judge dismissed a class action lawsuit against Google brought on behalf of its female employees, alleging that Google violated the California Equal Pay Act (Labor Code §§ 1197.5, 1194.5) by systematically paying them lower wages than those paid to male employees performing “substantially similar work under similar working conditions.” The complaint also alleged that Google discriminates against its female employees by paying women less than men with similar skills, experience, and duties, by assigning and keeping women in “job ladders and levels with lower compensation ceilings and advancement opportunities,” and promoting women at a slower rate than it does men. While claims of gender bias in tech are not new, this is the first such case brought against Google. The lawsuit was dismissed on the grounds that the allegations of the complaint were not specific enough to justify a class-action. In other words, by purporting to bring the action on behalf of “all women employed by Google in California” the complaint was simply too broad. Class actions require that the individual named plaintiffs bring claims that are representative of the group as a whole. The defendant’s liability must be able to be determined by issues common to all class members. Here, because plaintiffs defined their class…

Holiday Party Tea

Is Your Office Holiday Party On The Chopping Block?

Major news outlets like Time Magazine and the Chicago Tribune have recently reported that one of the fall outs of the recent sexual harassment scandals is that many companies have decided to forego their annual holiday parties.  At the very least, some companies are cutting out the free flow of alcohol at their annual festivities since alcohol is thought to be a risk factor for inappropriate behavior. Before you cancel your group’s restaurant reservation or caterer and officially kill the holiday spirit for your employees, consider the employer’s legal obligations for employee misconduct at office functions and some suggestions for how to ensure your employees can safely and appropriately celebrate the holidays with their colleagues. California’s Fair Employment and Housing Act imposes two standards of liability for sexual harassment, depending on whether the alleged harasser is a co-worker or a supervisor.  An employer is liable for harassment by a non-supervisory employee if the employer knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action.  (California Government Code section 12940, subdivision (j)(1).)  If a supervisor engages in sexual harassment, however, an employer is strictly liable for his or her conduct, which means liability does not rest on whether the employer was negligent. The employer can only avoid absolute…

Barber Pole, Haircut, Cosmetology

A Fresh Cut on Commission-Based Pay in Cosmetology

A recent change to the California Labor Code modifies the definition of commission pay for employees that are licensed pursuant to the Barbering and Cosmetology Act. Senate Bill 490, introduced in February 2017, adds section 204.11 to the California Labor Code, authorizing beauty salon employees to be paid commission if certain requirements are met. The requirements kick in when the employee, who must be licensed pursuant to the Barbering and Cosmetology Act is being paid for providing services where such license is required. These cosmetologists can agree to be compensated by percentage or flat rate sum commission in addition to a base hourly rate if the following requirements are met: The employee’s base hourly rate is at least two times the state minimum wage rate in addition to commissions paid; and The employee’s wages are paid at least twice during each calendar month on a day designated in advance by the employer as the regular pay day. With this new compensation option, employers will pay the break times based upon two times the minimum wage amount, which will lessen the administrative burden when compared to piece rate compensation. For example, under the new law, a salon employer could enter into a pay agreement such as the following: Salon owner Sweeney Todd agrees to pay employee…

From Breast Milk to Salary History: San Francisco Reminds Us that Employment Law in California Varies County to County

San Francisco is known for mission burritos, the golden gate bridge, and some of the most progressive employment laws in the nation. That last point was proven twice over in recent months as Mayor Ed Lee signed two ordinances. The first sets forth requirements for employer-provided lactation locations at the work site. The second goes above and beyond the California Equal Pay Act in prohibiting employers from asking about and using employees’ salary history. Lactation in the Workplace Ordinance Employers in the City and County of San Francisco already had an obligation under California law to ensure that every employee seeking to pump breast milk at the workplace has a reasonable time and place to pump. Effective January 1, 2018, San Francisco will take that requirement a step further and will require employers to ensure the pumping location is: (1) safe, clean, and free of toxic or hazardous materials, (2) has a surface for placing a breast pump and personal items onto, (3) has seating, and (4) access to electricity. Further, employees must have access to a refrigerator and sink in “close proximity to the employee’s work area.” The ordinance does have an express exemption when the employer shows that the requirements would “impose an undue hardship by causing the employer significant expense or operational…

Starting July 1, 2017, Employers Must Provide New Employees with Notice of Protections for Victims of Domestic Violence, Sexual Assault, or Stalking

Existing law prohibits an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to addressing the domestic violence, sexual assault, or stalking. As of July 1, 2017, employers with 25 or more employees must now provide written notice of the rights and duties under the existing law. A recent bill amended Labor Code section 230.1 to include employer notice requirements and ordered the Labor Commission to develop a sample form for employers to use to comply. If an employer chooses not to use the form, the notice used must be substantially similar in content and clarity. Whatever form is used must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint. Although the rights under Labor Code section 230 for employees who are victims of domestic violence, sexual assault, or stalking have not changed, the new notice requirement imparts more responsibility on employers and thus warrants a refresher. Right to Time Off – Employees who are the victims of domestic violence, sexual assault, or stalking are permitted to take time off to: Seek medical attention; Obtain…

A Brightside for Employers

Is the tide turning for Employers? There seems to be some good news on the horizon. The United States Department of Labor (DOL) appears to be contemplating changes that may help employers in the future on a few different topics including the salary requirement for employees who classify for federal overtime.  The DOL requested information on July 27, 2017 related to the exemption for employee minimum wage and overtime pay.  The request for information is an opportunity for the public to provide information that will help the DOL in formulating a proposal to revise related regulations. The Fair Labor Standards Act (FLSA) requires employers who do more than $500,000 in annual sales and are engaged in interstate commerce to pay their employees at least the federal minimum wage which is currently $7.25 per hour for all hours worked.  In general, interstate commerce refers to the sale, purchase or exchange of goods or money, or transportation of people or navigation of water between different states.  If the state where the employee resides has a minimum wage higher than $7.25 per hour, then that state’s minimum wage will apply with a few exceptions not discussed here. The FLSA also requires employers to pay their employees premium pay of time and a half for hours worked over forty…

Keeping Your Private, Private & Your Public, Public.

“What do you mean public record, it’s in my private e-mail account?” If you work in an office subject to the California Public Records Act (CPRA), be prepared to hear this sentence uttered repeatedly in the coming years. The California Supreme Court recently determined that public business conducted by a public employee through that employee’s personal (and private) account is subject to CPRA requests. The CPRA allows the people of California to request public records (with some limitations) from public agencies. While often used to increase transparency as required by a functioning democracy, this process is often used by Plaintiffs as a means of obtaining documents before filing a lawsuit. In San Jose v. Superior Court (full opinion in the link) the Plaintiff requested documents from the City concerning redevelopment plans for its downtown; specifically, e-mails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. In response, the City released communications made using public telephone numbers and e-mail accounts but did not release communications to or from employees’ personal accounts. The Court determined that it doesn’t matter how public business is conducted, using a private account doesn’t limit the scope of the CPRA. Therefore the City was ordered to produce the documents (if…

Murphy, Campbell, Alliston & Quinn A Sacramento law firm

April Showers Bring Employment Empowers

April is not only the month for Californians to fixate on taxes but this year it has been an active month of change in the employment arena. Changes have occurred that many Californians deem as socially necessary and morally correct, but will no doubt place a heavy burden on small businesses in the state.  California legislators proposed a $15 minimum wage initiative called “Fair Wage Act of 2016” (#15-0032) and alternative legislation was proposed to this bill, Senate Bill 3, which Governor Jerry Brown signed into law this month.  The signed alternative legislation still raises California’s mandatory minimum wage to $15 an hour but allows for an additional year to complete the task by the year 2022.  New York is the only other state to commit to such an increase to the minimum wage. Even the Governor appeared to question the economic rationale of his commitment but stood by this decision based on the fact that it morally made sense, indicating that individuals should be able to support their families based on the minimum wage. The legislation amends  Labor Code Section 1182.12 to now designate each incremental escalation for employers who employ 26 or more employees to increase the minimum wage by January 1, 2017 to $10.50. By January 1, 2018, the minimum wage would…

Non-Compete Agreements in California

With the proliferation of wineries in California, it’s not uncommon for an owner to find one of its winemakers deciding to leave and set up shop on their own. Is there anything you can do up front to prevent them from taking the craft they’ve honed at your winery elsewhere? The short answer is, in most cases, no. But as with almost everything in the law, there are some exceptions you should know. California public policy strongly favors free and open competition in the marketplace. Business and Professions Code section 16600 states clearly that contractual restraints on competition or trade are void, except as otherwise provided. California courts interpreting this statute emphasize that it protects the right of Californians to pursue any business, occupation, or lawful employment of their choosing. Contract provisions which attempt to place restrictions on a person’s ability to work for a competitor, or open a competing enterprise, are generally unenforceable. That said, you should be aware of the “as otherwise provided” part of the Code. The primary exceptions to the prohibition on non-compete agreements apply to “owners” of a business and arise in the following contexts. First, if you are selling all of your ownership interest, or all of most of the operating assets together with the goodwill of the business, you can agree…