In July of 2021, President Joe Biden signed an Executive Order on Promoting Competition in the American Economy (“Order”). The purpose of this action is to encourage the Federal Trade Commission (“FTC”) to exercise the FTC’s statutory rulemaking authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.“ Biden’s action is part of a larger effort to promote competition and remove barriers to economic growth in the country. The White House believes that non-compete agreements drive down wages by making it harder for workers to switch to jobs with higher wages. The Order does not have any effect on current law or the enforceability of non-competition agreements in any context in any jurisdiction. In no way does the Order require employers to modify their existing non-competition agreements. The Order is to “encourage[s]” the FTC to “consider” using its authority to “curtail the unfair use of non-compete clauses.” These…Read More
The COVID-19 pandemic seems far from over with a late July surge in many parts of the country. California workers remain subject to the workplace risks posed by the coronavirus. Here are some frequently asked questions related to workplace issues that may arise because of the pandemic. *Is an employee entitled to receive compensation for reporting to work and then being sent home by the employer? In most cases, if an employee reports for a regularly scheduled shift but works fewer hours or is sent home, the employee must be compensated for at least two hours, or no more than four hours, of reporting time pay. For example, a worker who reports to work for an eight-hour shift but only works for one hour must receive four hours of pay – one for the hour worked and three as reporting time pay. This allows the worker to receive earnings for at least half of an…Read More
In June, the Supreme Court decided a case with major implications for class action lawsuits. After the Court reviewed a Ninth Circuit case, it held that only a plaintiff concretely harmed by a defendant’s violation of the Fair Credit Reporting Act (FCRA) has Article III standing to seek damages against that private defendant in federal court. Although the case involved a class of individuals who sued one of the nation’s three major credit reporting bureaus, TransUnion, in federal court under the Fair Credit Reporting Act, the case raises issues for those defending class actions in federal court. The case’s 5-4 holding that most of the class members in the class action did not suffer concrete harm necessary for Article III standing redefines standing and class definitions in most class action litigation. The case, TransUnion LLC v. Ramirez, No. 20-297, 594 U.S. __, 2021 WL 2599472 (June 25, 2021) involved a class of 8,185 individuals who alleged that TransUnion…Read More
Even though California is an employment-at-will state, California law prohibits employers from firing an employee for discrimination based on age, race, sexual orientation, disability, relation, national origin, or sex. Employers are also prohibited from retaliating against an employee for certain actions, such as the employee participating in lawful conduct occurring during nonworking hours and away from the employer’s premises. The Labor Commissioner of the California Department of Industrial Relations enforces the California laws that specifically prohibit discrimination and retaliation against employees and job applicants. Complaints against an employer must be filed within one year of the allegedly illegal act unless the law state otherwise. Currently, deadlines to file complaints have temporarily been suspended due to the coronavirus pandemic. Wrongful termination laws protect California workers when they are dismissed from their employment for unlawful reasons. Workplace retaliation laws protect workers who do not suffer a loss of employment but other adverse employment consequences because of the illegal retaliatory actions…Read More
It is common knowledge that, among the states, California is and has consistently been at the forefront of progressive rulemaking, especially legislation related to employment and labor law. The federal Equal Pay Act was not enacted until 1963 whereas California first passed an Equal Pay Act in 1949. California’s law was amended in 2015. The following is a review of California equal and fair pay laws before and after the recent legislative amendments in the last five years. The Equal Pay Act codified in Labor Code § 1197.5 formerly provided that: No employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . The California Fair Pay Act went into effect on January 1, 2016, with provisions that updated certain terms to make…Read More
While many Americans have received the COVID-19 vaccine, the pandemic and its effects have not completely vanished from life as we (now) know it. Some government bodies are still imposing restrictions to help protect public health and mitigate these continuing devastating effects. Santa Clara County’s Public Health Officer recently issued a new order to guide on June 21, 2021, for employers and residents as the State of California and Santa Clara County begin to reopen and resume some pretense of normalcy. The June Order eliminates the directive to work (telework) from home. The order also removes current requirements for capacity restrictions. However, it does not remove the requirements for masks to be worn indoors. It is still recommended that employee lunchrooms and breakrooms remain closed as the County is still discouraging workers from eating together indoors. Employers were required to obtain the vaccination status of all their employees who work in Santa Clara County by June 1, 2021. Of…Read More
Employers fire employees for many different reasons. While often these reasons are legitimate and reasonable, there are other instances where they may seem unfair and arbitrary. Does an employer even need a reason to fire you in California? California is an at-will state, meaning that an employer may terminate an employee at any time without reason or justification for terminating an at-will employee. Thus, an employer can fire you if he or she simply wishes to do so without any reason. Most employee handbooks contain a disclaimer of at-will employment. In turn, most employers require employees to sign an acknowledgment of their at-will status. Even if there is an underlying reason for termination, it can be something unreasonable such as not liking your favorite sports team or the way that you dress. However, the reason for termination may not be illegal under California or federal law. Some examples of illegal reasons for terminating an employee in California include discrimination based on age,…Read More
The mission of the Department of Justice, Antitrust Division (“DOJ”) is “. . . to promote economic competition through enforcing and providing guidance on antitrust laws and principles. The Federal Government enforces three major Federal antitrust laws and other antitrust laws are also enforced on the state level. Antitrust laws prohibit business practices that unreasonably deprive consumers of the benefits of competition, thus resulting in higher rather than lower prices for goods and services. The DOJ is currently investigating the hiring practices of many entities for potential antitrust violations. This may result in the DOJ, in some instances, criminally prosecuting companies and individuals who enter into illegal agreements with competitors regarding hiring practices, wages, and the solicitation of employees. In 2016, the DOJ, in conjunction with the Federal Trade Commission (“FTC”), warned that anticompetitive agreements in labor markets could result in criminal charges for those involved. Since then, the DOJ has publicly remarked on several occasions that criminal…Read More
COVID Paid Sick Leave (PSL) in California is a mechanism by which employers may provide paid sick leave to their workers. California employers with more than 25 employees must provide up to 80 new hours of COVID-19 supplemental paid sick leave (SPSL). This law applies retroactively to January 1, 2021. As the Families First Coronavirus Response Act (FFCRA) was extended to September 30, 2021, it has remained a way for employees to counteract the financial costs of the pandemic. Employers must fund this benefit without state assistance. However, California law does not prohibit an employer from using the FFCRA as a method of offsetting the costs of PSL. The FFCRA has also expanded the reasons employees may take Paid Sick Leave. Because these provisions went into effect as of April 1, 2021, employees who have already taken FFCRA paid sick leave have renewed banks of time as of April 1, 2021. Thus, the employee has a new bank of…Read More
There will always be employers who attempt to increase their profits at the expense of their employees. While California has a history of protecting employees with extensive employment and labor laws, California lacked the resources to pursue companies that violated the state’s labor laws in the early part of this century. Another problem at this time was that many California employees were unable to take advantage of protections under state law because they were handcuffed by restrictive employment agreements. Employers often forced employees to agree in writing to settle their claims and disputes through arbitration rather than litigation. To counter this problem, the California legislature passed the Private Attorneys General Act (PAGA) in 2004. PAGA is a helpful mechanism for employees whose employers try to circumvent California fair wage laws. In fact, PAGA is an invaluable tool for helping employees protect their right to fair wages in California. Under PAGA, when employers violate state wage…Read More
