2018 Legislative Update for California Employers

By: Andrew J. Sommer and Daniel C. Deacon

california-flagCalifornia has had yet another banner year closing the 2017 legislative session with a spate of new employment laws imposing additional compliance obligations on employers.  Bucking the anti-regulatory tide in Washington, DC, California has passed dozens of new laws impacting both private and public sector employers.  Overall, Governor Jerry Brown has vetoed just over 12% of the bills passed by the California legislature this year.

Conn Maciel Carey LLP provides this summary of key new employment bills, regulations and local ordinances impacting California private sector employers.  Unless otherwise indicated, these new employment laws take effect January 1, 2018.

 Statewide “Ban the Box” Law

Continuing a national trend at the state and municipal level, California has passed Assembly Bill (AB) 1008, a statewide “ban the box” law limiting any inquiry into an applicant’s criminal history.  AB 1008 applies to employers with five or more employees, and is markedly different from San Francisco’s “ban the box” ordinance.

The statewide law makes it unlawful for an employer to inquire into or consider an applicant’s criminal history, including seeking such information on any job application, before the employer has made a conditional offer of employment.  In addition, an employer that intends to deny an applicant a position solely, or in part, because of the applicant’s conviction history ascertained after the conditional job offer has been extended must make an individualized assessment of whether the applicant’s conviction history has a “direct and adverse relationship” with the specific duties of the applied for position.  In making this assessment, the employer must consider:  (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.

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Best Practices for Handling Trade Secret, Restrictive Covenant, and Choice of Law Issues in Employment Agreements [Webinar Recording]

On November 15, 2017, Andrew J. Sommer and Daniel C. Deacon of Conn Maciel Carey’s national Labor and Employment and OSHA – Workplace Safety Practices presented a webinar regarding Best Practices for Handling Trade Secret, Restrictive Covenant, and Choice of Law Issues in Employment Agreements.

The webinar tackled a number of different subjects associated with these topics and reviews a number of best practices when dealing with trade secret, non-compete, and choice of law issues.  The meaning of “trade secret” is essential in properly classifying and protecting this type of information, and this webinar discusses how different courts interpret the meaning of trade secret and what types of information are typically considered a protected trade secret.  In addition, the webinar addresses the numerous factors to consider when drafting a restrictive covenant for employees during the hiring process, how to protect a business when hiring a prospective employee under a restrictive covenant with a former employer, and steps to take to protect your business when you terminate an employee with a restrictive covenant.  Furthermore, this webinar examines the nuances of choice of law issues and how conflicts of law rules in different jurisdictions may affect the validity of a restrictive covenant or other aspects of an employment agreement.  It is critical that employers carefully draft employment agreements in consideration of all of these factors to ensure that its trade secrets are protected and the policies maintained in its employment agreement are enforced.

Here is a link to a recording of the webinar.

This webinar concludes Conn Maciel Carey’s 2017 Employment Webinar Series.  If you missed any of our prior webinars or would like a refresher on any of our prior topics, you can visit Conn Maciel Carey’s Webinar Recordings.

We look forward to presenting on a number of new and interesting topics in 2018 when we commence our 2018 Employment Webinar Series after the New Year.  We hope you will join us!

 

Accommodating Pregnancy Under State and Federal Law

shutterstock_pregnant employeeLaws requiring both public and private employers to accommodate their pregnant employees have become a trend over the past several years.  Indeed, this past July, Massachusetts became the 22nd state, along with the District of Columbia, to pass a law that requires an employer to engage in the interactive process and provide an accommodation to a pregnant employee, where that accommodation would not put an undue burden on the employer.  It joins the states of Nevada, Vermont, and Washington, all of which passed similar laws in 2017.  Additionally, many of these state laws provide clear protections against discrimination based on pregnancy and pregnancy-related conditions.  Although the Americans with Disabilities Act (“ADA”) does cover some impairments related to pregnancy and the birth of a child, state laws regulating pregnancy accommodation generally expand that coverage to pregnancy, child birth and related conditions that may not rise to the level of a disability under the ADA.

Pregnancy Accommodation Under Federal Law

Title I of the ADA prohibits discrimination against employees or applicants due to their disability or perceived disability, and requires employers to accommodate disabled employees if they can still perform the essential functions of their job.  The ADA applies to employers with 15 or more employees and mandates that those employers accommodate a disabled employee’s condition as long as the accommodation would not cause undue hardship on the company.  Under the ADA, pregnancy itself is not a disability; however, the ADA does cover impairments related to pregnancy and birth that would qualify as disabilities under the ADA.

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New California Regulations Expand Protections for Transgender Workers

By:  Andrew J. Sommer

The California Office of Administrative Law has approved new regulations, effective July 1, 2017, expanding protections for transgender workers under California’s Fair Employment and Housing Act (FEHA).  The FEHA prohibits workplace discrimination and harassment on the basis of gender identity or gender expression, among other protected classifications.  These regulations specifically address protections for transgender employees, including access to bathroom facilities, grooming and dress standards and recording the gender and name of employees.

All_gender_restroom_sign_San_Diego_airportRecognition of Transition Discrimination

While the FEHA addresses discrimination because of the gender identity or gender expression of an employee or applicant for employment, these new regulations make it unlawful to discriminate against an individual “who is transitioning or has transitioned or is perceived to be transitioning.”  Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify” including changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries or other medical procedures.

Recording of Gender and Name

These regulations require employers to abide by an employee’s request to be identified with a preferred gender, name, or pronoun.  An employer is permitted, however, to use an employee’s gender or legal name as indicated in a government-issued identification document, even if inconsistent with the employee’s preferred gender or name, as necessary to meet a legally-mandated obligation. Continue reading

Labor Unions Attempt to Use DOL and OSHA Enforcement as Organizing Tactic

By:  Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency that is the typical focal point is the National Labor Relations Board (“NLRB”), whose purpose is to protect the right of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.  However, unions have also engaged with or depended on the regulations of other federal agencies as a tactic to gain leverage in organizing campaigns.  There are a number of ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees or put pressure on employers to concede to union representation.

Taking OSHA as an example, an inspection or the threat of an inspection can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or of an OSHA inspection could put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with about 75% of OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading

DOL Takes Significant Step Forward in Rescinding Persuader Rule

4This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

As we discussed in a prior post, the Persuader Rule imposed stricter reporting requirements on employers under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).  Specifically, the rule aimed to close a loophole in the reporting requirements, known as the “advice exemption,” which permitted employers to hire a consultant solely for advice without making a related report.  Thus, in the past, the LMRDA required an employer to file a report if it hired a consultant to directly persuade employees on organizing or bargaining issues, but did not mandate an employer file a report if the consultant hired only used “indirect” persuasion, such as advising employers on what to say to employees.  With the Persuader Rule, however, the DOL has essentially eliminated the advice exemption as it now requires employers and their labor relations consultants, including outside attorneys, to report any activities by the consultants that could be construed as an attempt to “persuade” employees regarding their rights to organize and bargain.  Continue reading

Acosta Confirmed as Secretary of Labor

Department of LaborOn Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the Secretary of Labor in the Trump Administration.  In this role, Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws.  The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

During the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately 8 months.  In 2003, President Bush appointed him to the head of the United States Department of Justice’s Civil Rights Division, a position which he maintained for about 2 years.  Thereafter, Acosta served as the United States Attorney for the Southern District of Florida.  Most recently, Acosta filled the role of Dean for Florida International University School of Law, a role from which Acosta has said he would resign if he was confirmed as Secretary of Labor.  Continue reading