California Courts Issue Reminder of Strict Requirement to Pay Arbitration Fees on Time

By Megan Shaked

At the beginning of 2022, two sections were added to the California Arbitration Act specifying that a failure to timely pay arbitration fees constitutes a material breach of the arbitration agreement. In the event of a material breach, a party subject to arbitration can withdraw the claims from arbitration to proceed in court and seek other sanctions. Concept,For,Corruption,,Bankruptcy,Court,,Bail,,Crime,,Bribing,,Fraud,,AuctionLast month, the California Court of Appeal in De Leon v. Juanita’s Foods confirmed that the new law is a bright-line rule and that courts do not have discretion to deviate from a finding of material breach.

California Civil Procedure Code Sections 1281.97 and 1281.98 require employers seeking to compel an employee’s dispute into arbitration to timely pay the fees or costs to initiate and to continue arbitration proceedings. If the employer does not pay the fees/costs required within 30 days after the due date, the employer is in material breach of the arbitration agreement, is in default of the arbitration agreement, and waives its right to compel the employee to proceed with that arbitration.

At that point, the party being compelled into arbitration has a few options. Continue reading

[Webinar] Recap of Year Two of the Biden Administration

On Wednesday, December 7, 2022 at 1 p.m. EST, join Kara M. Maciel and Aaron R. Gelb for a webinar regarding a Recap of Year Two of the Biden Administration.

As we approach the midway point of the Biden Administration, we will take stock of the lay of the land at Biden’s DOL, reviewing the initiatives the Department and its agencies have focused on in Year 2 and evaluating how they have fared in driving change at DOL, EEOC, NLRB, and OSHA. We will also assess those agencies’ rulemaking, policymaking, and enforcement efforts; make predictions about what employers can expect from the Biden Administration’s DOL in the second half of President Biden’s presidential term; and assess the impact of the mid-term elections.

Participants in this webinar will learn about: Continue reading

CA Laws Take Aim at Sexual Assault and Harassment

Sexual assault and harassment was one of the top issues for the California Legislature and Governor Gavin Newsom in the most recent legislative session. At least six (6) bills will go into effect in 2023 that relate in various ways to sexual assault and harassment. While some of the new bills apply generally (including to employers), many of them are industry-specific (i.e. hotels, cosmetology, barbering, etc.) Below is a summary of some of the laws that will soon be going into effect.

AB 1788

AB 1788 allows for a civil penalty to be imposed against a hotel if a supervisor knew of or acted with reckless disregard of activity constituting sex trafficking within the hotel and failed to inform law enforcement. It would also allow for such penalties if the supervisor was acting within the scope of employment and benefited from participating in a venture that the employee knew or should have known constituted sex trafficking.

The penalties can range from $1,000 to $10,000, depending on the number of violations in a calendar year. Continue reading

Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation [Webinar Recording]

On Wednesday, November 16, 2022, Lindsay A. DiSalvo and Megan S. Shaked presented a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned about: Continue reading

[Webinar] Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation

On Wednesday, November 16, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Megan S. Shaked for a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn about: Continue reading

New York City Pay Transparency Law Goes into Effect – Tips for Employers

After a series of amendments passed by the New York City Council in the Spring of 2022 postponed the effective date of the New York City Pay Transparency Law, the law finally went into effect on November 1, 2022.  Employers need to take swift action to ensure that their job advertisements comply with the law, if they haven’t already done so.  The law amended the New York City Human Rights Law (NYCHRL) to make it an unlawful employment practice for a covered employer to advertise a job, promotion, or job transfer without disclosing the minimum and maximum salary or hourly wage range of compensation for the position that the employer in good faith believes it would pay for the position.

A covered employers is any employer with four or more employees, including independent contractor and owners, or one or more domestic workers, that has at least one employee who works, at least in part, in New York City.  The law also covers employment agencies of any size. Temporary help firms that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization’s workforce are exempt from the disclosure requirements.  However, employers that work with temporary help firms must follow the disclosure requirements.

Prior guidance issued by the New York City Commission on Human Rights (the “Commission”) provides that the “salary” employers must disclose is the “base annual or hourly wage or rate of pay,” and it does not need to include other forms of compensation or benefits offered in connection with the advertised job, such as health insurance, 401K contributions or employer-funded pension plans, severance pay, overtime pay, commissions, tips, bonuses, and stock. The guidance also provides further instruction about how the law applies, which include the following highlights:

  • Coverage and Application
    • The four employees do not need to work in the same location, and they do not need to all work in New York City.
    • As long as one of the four employees works in New York City, the workplace is covered.
    • The disclosure requirements apply to any position that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.  In other words, employers outside of New York City need to be aware of the law’s potential reach, especially with respect to remote jobs that could be filled by persons living (and working from) New York City.  Employers that post for remote jobs and have more than four employees should include compliant salary/wage ranges in postings for those jobs.
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NLRB Memo Addresses Electronic Monitoring and Algorithmic Tools’ Effects on Employee Section 7 Rights

By: Kara Maciel and Darius Rohani-Shukla

On October 31, 2022, the National Labor Relations Board (the “Board”) General Counsel Jennifer Abruzzo sent a memo to all regional directors, officers-in-charge, and resident officers communicating her concerns over electronic monitoring and algorithmic management. The memo highlighted concerns that employers might be able to use those tools to impair or negate employees’ ability to exercise their rights under Section 7 of the National Labor Relations Act (the “Act”).

Technological advancements have enabled employers to surveil and analyze employees in increasingly intrusive ways. For example, employers can record workers’ conversations, track their movements with wearable devices, and monitor employees’ computers with keyloggers and software. Employers can also use algorithms to: identify disengaged employees at risk of leaving their employment; suggest career paths for current employees; assist employers through the performance management process; assess personality, aptitude, skills, and perceived “cultural fit;” and even monitor employee efficiency.

The Board has previously recognized that some employer surveilling practices are unlawful. In instances where employees are engaging in protected concerted activity and public union activity – the Board has acknowledged that photographing employees engaging in protected concerted activities is intimidating. An employer’s capacity to surveil its employees is analyzed by balancing its justification for the surveillance versus the apparent risk of interfering with or deterring employee activity.

Surveillance Technologies and Algorithmic Tools impact employees’ rights under Section 7 and Section 8(a)(1) of the Act:

  • Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
  • Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

Employer can violate Section 8(a)(1) through the following activities:

  • Instituting new monitoring technologies in response to activity protected by Section 7;
  • Utilizing technologies already in place to discover that activity, including by reviewing security-camera footage or employees’ social-media accounts;
  • Creating the impression that it is doing such things; or
  • Disciplining employees who concertedly protest workplace surveillance or the pace of work set by algorithmic management.

Electronic Surveillance in the Workplace

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Conn Maciel Carey LLP Adds the Former Top Workplace Safety and Employment Attorney for the State of North Carolina

Conn Maciel Carey LLP, a Washington, D.C.-based boutique law firm with a national focus on OSHA/MSHA • Workplace Safety and Labor • Employment, is pleased to announce that Victoria Voight is now with the firm as an Of Counsel attorney in both the firm’s OSHA and Employment law practices.

Over four decades, Ms. Voight served the State of North Carolina in the Attorney General’s Office, ultimately as the Head of the Labor Section for eighteen years. In that role, Ms. Voight supervised all legal services provided to the North Carolina Department of Labor, principally in the areas of occupational safety and health (for North Carolina OSHA), wage and hour, retaliation, and employment discrimination. With that background, Ms. Voight brings to private practice a unique perspective, unparalleled experience, and key relationships with officials in North Carolina state government.

Ms. Voight is based in Raleigh, North Carolina, where she now provides the full range of workplace safety and health regulatory and employment law services for employers in North Carolina and around the country. She advises clients in relation to inspections, investigations and enforcement actions involving the Occupational Safety and Health Administration (OSHA) and State OSH Plans, particularly NCOSHA. She also counsels employers in all aspects of the employer-employee relationship, including wage and hour disputes and claims of employment discrimination and retaliation.

“From the other side of the table, I was always impressed with the attorneys at Conn Maciel Carey when they were advocating for employers in disputes with NCOSHA. They brought credibility, creativity, and a safety-focused approach to every case we had opposite each other, and that was so refreshing and effective for their clients.” said Ms. Voight. She added, Continue reading

Ninth Circuit – Time Booting Up Computer is Compensable

Customer,Service,Executive,Working,At,OfficeUnder the Fair Labor Standards Act (“FLSA”), an employer must pay non-exempt employees for all time in a workday, which means the period between the time employees commence their first “principal activity” each day and when they complete all principal activities. On October 24, 2022, the United States Court of Appeals for the Ninth Circuit (“the Ninth Circuit”) held that this includes the time it takes to boot up a computer and all activities that follow once it is booted up, including clocking in, until the computer is turned off.

The decision was very fact-specific but provides insight as to how the Ninth Circuit and other courts may evaluate similar time spent by other employees for whom computer-use is an integral and indispensable part of the work they were employed to perform.

Facts and Background of the Case

In the case, Cadena v. Customer Connexx LLC, employees brought a collective action against their employer Customer Connexx LLC (“Connexx”) for failure to pay them for all time worked, specifically the time spent booting up and turning off their computers. The employees worked as call center agents and their primary responsibilities were to provide customer service and scheduling support for customers of an appliance recycling business over the phone. In this case, however, the call center agents operate a phone program called “Five9” through their computers rather than an actual phone and this is how they make all their calls.

Importantly, before beginning their daily work tasks, employees had to clock in using a computer-based timekeeping program, which meant awakening or turning on their computers, logging in, and opening up the time keeping system. Employees do not have assigned computers, so they must take this first step from whatever state in which the computer has been left from its prior use. Once the computer has booted up, employees load various programs and call scripts, and confirm their phones are connected. At the end of the shift, they close out programs in use, clock out, then log off or shut down their computers. Per the employees, booting up the computer could take anywhere from a minute to twenty minutes and shutting down the computer can take between a minute to 15 minutes.

The lawsuit was filed with the United States District Court for the District of Nevada (“District Court”) and it included violations of the FLSA and Nevada law. The District Court granted summary judgment in favor of Connexx, finding that Continue reading

[CMC Spotlight Series] Meet Trevor Thompson!

In honor of National Paralegal Day this week, we are proud to feature one of our stellar paralegals for today’s CMC Spotlight Series — Trevor Thompson!  Trevor is a Cal/OSHA Paralegal in Conn Maciel Carey’s San Francisco office.  He has more than a decade of experience in the legal field and supports the attorneys in the OSHA • Workplace Safety Group as well as the Labor • Employment, and Litigation groups.

Trevor is particularly skilled in the organization and analysis of legal documentation. Prior to joining the firm, he was a Legal Document Specialist providing legal, trial and administrative support for several national law firms.

Get to Know Trevor!

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