One Minute Update: In 2019, California passed AB51, prohibiting employers from requiring job applicants or employees to sign a mandatory arbitration agreement as a condition of employment. AB51 was quickly enjoined by a federal trial court, and, in February 2023, the federal appeals court struck down AB51 as violative of the Federal Arbitration Act. California still has some avenues left for further appeal (to the full Ninth Circuit or to the U.S. Supreme Court), but it seems unlikely that this recent decision would be overturned if California did so. Thus, California employers may continue to require mandatory arbitration agreements of its employees if they so desire, at least for now.
Also, in June 2022, the U.S. Supreme Court held in Viking River that individual PAGA claims could be compelled to arbitration if the plaintiff-employee had signed an arbitration agreement with the employer. The court further held that PAGA plaintiff who had to arbitrate such plaintiff’s individual claims, and who waived arbitration of representative claims, did not have standing to litigate the representative part of the PAGA claims in court after the arbitration of the plaintiff’s individual claims was completed. However, in February 2023, a California court of appeal disagreed with the U.S. Supreme Court, in Galarsa v. Dolgen California LLC , and held that the plaintiff’s representative PAGA claims could proceed in court after the arbitration of the plaintiff’s individual claims was completed. This issue will ultimately be decided by the California Supreme Court in the pending case of Adolph v. Uber Technologies, Inc.
One Minute Update: Effective as of January 1, 2023, AB 1041 amended California’s Paid Sick Leave law to allow an employee to care for a “designated person.” This term is defined differently than it is in other areas of the law (e.g., in the California Family Rights Act), and means “a person identified by the employee at the time the employee requests paid sick leave.” The designated person need not be related in any way, nor must the designated person by in a family-equivalent relationship. An Employer may amend its paid sick leave policy to limit employees to one designated person per 12-month period, if the Employer so chooses.
On February 25, 2021, the California Supreme Court ruled that rounding time entries for meal periods is unlawful, in Donohue v. AMN Services, LLC. In this case, the employer’s electronic timekeeping system rounded employee time punches to the nearest 10-minute increment. The employer believed this policy was lawful under the 2012 California Court of Appeal case of See’s Candy Shops, Inc. v. Superior Court, which held that employers may use rounding for employee’s time punches at the beginning and the end of their shifts as long as (i) the rounding procedure is fair and neutral on its face and (ii) the employer’s rounding over a period of time does not undercompensate employees for time actually worked. But the Supreme Court held that rounding is not appropriate for meal periods given the precise time requirements associated with meal periods.
On February 22, 2021, the United States District Court for the Northern District of California ruled that a wife’s civil lawsuit for personal injury based on her husband becoming infected with Covid-19 at work and subsequently infecting the wife at home was barred because California’s workers’ compensation statutes provide the exclusive remedy to the extent the employer may have any liability for the wife’s alleged harm (Kuciemba et al v. Victory Woodworks, Inc.). One of the issues in the case was “take home liability,” which is liability for employers in tort to family members of employees who injure their families at home due to some sort of toxic contamination suffered by the employee at work. The court did not rule on that issue, but, in holding that workers compensation was the exclusive remedy, the court limited the applicability of “take home liability” in the context of the spread of an infectious disease that may be traceable to the workplace.
–Adam K. Treiger, Esq.