Connor v. First Student, Inc. (SC S229428 8/20/18) Employer Background Checks/ICRAA and CCRAA
We granted review to resolve a conflict in the Courts of Appeal over whether the Investigative Consumer Reporting Agencies Act (ICRAA) (Civ. Code, § 1786 et seq.) is unconstitutionally vague, in violation of due process, as applied to employer background checks because it overlaps, in part, with the Consumer Credit Reporting Agencies Act (CCRAA) (§ 1785.1 et seq.). We agree with the Court of Appeal that some overlap between the two statutes does not render ICRAA unconstitutionally vague when the statutes are otherwise unambiguous. We therefore affirm the Court of Appeal judgment.
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Tuesday, August 21, 2018
Wednesday, August 15, 2018
Jackpot Harvesting Co. v. Superior Ct.
Jackpot Harvesting Co. v. Superior Ct. (CA6 H044764 8/14/18) Piece Rate/Rest and NP Time
Labor Code section 226.2, which became effective January 1, 2016, addresses the manner in which piece-rate employees are to be compensated for rest and recovery periods and other nonproductive time on the job (collectively, rest/NP time). Subdivision (b) of the statute (hereafter section 226.2(b)) provides a safe harbor for an employer that, prior to 2016, failed to properly compensate its piece-rate workers for rest/NP time. Under section 226.2(b), an employer that pays its employees for previously unpaid rest/NP time accrued between July 1, 2012 and December 31, 2015, is entitled to assert “an affirmative defense to any claim or cause of action . . . based solely on the employer’s failure to timely pay the employee the compensation due for [rest/NP time] . . . for time periods prior to and including December 31, 2015.”
This lawsuit concerns whether an employer complying with the requirements of section 226.2(b) has a safe harbor against any employee claims for rest/NP time accruing prior to and including December 31, 2015, or has an affirmative defense only to those claims accruing between July 1, 2012 and December 31, 2015. We will conclude that under the plain and unambiguous language of section 226.2(b), an employer complying with the statute has an affirmative defense against any employee claims for rest/NP time accruing prior to and including December 31, 2015.
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http://beverlyhillsemploymentlaw.com/
Labor Code section 226.2, which became effective January 1, 2016, addresses the manner in which piece-rate employees are to be compensated for rest and recovery periods and other nonproductive time on the job (collectively, rest/NP time). Subdivision (b) of the statute (hereafter section 226.2(b)) provides a safe harbor for an employer that, prior to 2016, failed to properly compensate its piece-rate workers for rest/NP time. Under section 226.2(b), an employer that pays its employees for previously unpaid rest/NP time accrued between July 1, 2012 and December 31, 2015, is entitled to assert “an affirmative defense to any claim or cause of action . . . based solely on the employer’s failure to timely pay the employee the compensation due for [rest/NP time] . . . for time periods prior to and including December 31, 2015.”
This lawsuit concerns whether an employer complying with the requirements of section 226.2(b) has a safe harbor against any employee claims for rest/NP time accruing prior to and including December 31, 2015, or has an affirmative defense only to those claims accruing between July 1, 2012 and December 31, 2015. We will conclude that under the plain and unambiguous language of section 226.2(b), an employer complying with the statute has an affirmative defense against any employee claims for rest/NP time accruing prior to and including December 31, 2015.
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Tuesday, August 14, 2018
Cal. Dept. of Industrial Relations v. AC Transit
(CA1/4 A142799 8/13/18) Non-Air Conditioned Buses.Outdoor Places of Employment
In this appeal, we consider a narrow question of regulatory interpretation: Can the interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for purposes of the heat illness prevention standards promulgated by the California Occupational Safety and Health Standards Board (Standards Board) as stated in section 3395 of title 8 of the California Code of Regulations (section 3395)? After the Department of Industrial Relation’s Division of Occupational Safety and Health (Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several violations of section 3395 involving its non-air-conditioned buses, AC Transit sought administrative review, arguing, among other things, that the buses were not “outdoor” places of employment for purposes of the heat illness prevention regulation. The Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed, affirming the dismissal of the appealed-from violations by one of its administrative law judges (ALJ). However, after the Division filed a petition for writ of mandate in the trial court disputing this decision, the trial court determined that the Appeals Board’s definition of “outdoor” was too narrow and issued a peremptory writ of mandate instructing the Appeals Board to reconsider the matter using a broader definition of outdoor that could include non-air-conditioned vehicles. Both AC Transit and the Appeals Board appealed. We conclude—based upon our independent analysis of the question—that the trial court’s construction of section 3395 is well supported both by the language of the regulation and by its related regulatory history. We therefore remand the matter for further proceedings consistent with our analysis.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
In this appeal, we consider a narrow question of regulatory interpretation: Can the interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for purposes of the heat illness prevention standards promulgated by the California Occupational Safety and Health Standards Board (Standards Board) as stated in section 3395 of title 8 of the California Code of Regulations (section 3395)? After the Department of Industrial Relation’s Division of Occupational Safety and Health (Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several violations of section 3395 involving its non-air-conditioned buses, AC Transit sought administrative review, arguing, among other things, that the buses were not “outdoor” places of employment for purposes of the heat illness prevention regulation. The Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed, affirming the dismissal of the appealed-from violations by one of its administrative law judges (ALJ). However, after the Division filed a petition for writ of mandate in the trial court disputing this decision, the trial court determined that the Appeals Board’s definition of “outdoor” was too narrow and issued a peremptory writ of mandate instructing the Appeals Board to reconsider the matter using a broader definition of outdoor that could include non-air-conditioned vehicles. Both AC Transit and the Appeals Board appealed. We conclude—based upon our independent analysis of the question—that the trial court’s construction of section 3395 is well supported both by the language of the regulation and by its related regulatory history. We therefore remand the matter for further proceedings consistent with our analysis.
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Friday, August 10, 2018
Clark v. City of Seattle
A group of drivers did not raise a viable challenge to a city ordinance that establishes a multistep collective-bargaining process between "driver-coordinators" and for-hire drivers under Sec. 8(b)(4) or Sec. 8(e) of the National Labor Relations Act because the disclosure of the drivers' information to a labor union was neither a concrete nor a particularized injury.
Clark v. City of Seattle - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-35693
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Clark v. City of Seattle - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-35693
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Tuesday, August 7, 2018
NLRB Announces Opportunity for Voluntary Early Retirement and Separation for Select Agency Positions
Today, the National Labor Relations Board (“NLRB” or “the Agency”)
announced that it will offer voluntary early retirement and voluntary
separation to employees holding eligible positions in designated
locations within the Agency.
The Agency requested and obtained both Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payments (VSIP) authority in order to better manage its caseload and workforce needs. For years, the deficits caused by flat funding of the Agency have been primarily addressed by voluntary personnel attrition. As a result, the NLRB has an imbalance in staffing in both headquarters and the NLRB’s regional offices. To ensure that the Agency is able to carry out its critical mission, the NLRB is utilizing the VERA and VSIP to realign Agency staffing with office caseloads. In addition to addressing the Agency’s current staffing imbalance, utilization of VERA and VSIP will enable the Agency to reallocate its limited resources and to, among other things, provide employees with the tools they need, including training and improvements in technology.
VERA changes the normal retirement eligibility to allow employees to voluntarily retire earlier, with an immediate annuity, with 20 years of service at age 50, or at 25 years of service regardless of age. VSIP provides a financial incentive for employees to voluntarily separate by optional retirement, voluntary early retirement, or resignation. The NLRB is offering both VERA and VSIP opportunities only to employees in targeted job categories. Applying for these opportunities is entirely voluntary and applications from employees in eligible positions will be processed in the order they are received.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
The Agency requested and obtained both Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payments (VSIP) authority in order to better manage its caseload and workforce needs. For years, the deficits caused by flat funding of the Agency have been primarily addressed by voluntary personnel attrition. As a result, the NLRB has an imbalance in staffing in both headquarters and the NLRB’s regional offices. To ensure that the Agency is able to carry out its critical mission, the NLRB is utilizing the VERA and VSIP to realign Agency staffing with office caseloads. In addition to addressing the Agency’s current staffing imbalance, utilization of VERA and VSIP will enable the Agency to reallocate its limited resources and to, among other things, provide employees with the tools they need, including training and improvements in technology.
VERA changes the normal retirement eligibility to allow employees to voluntarily retire earlier, with an immediate annuity, with 20 years of service at age 50, or at 25 years of service regardless of age. VSIP provides a financial incentive for employees to voluntarily separate by optional retirement, voluntary early retirement, or resignation. The NLRB is offering both VERA and VSIP opportunities only to employees in targeted job categories. Applying for these opportunities is entirely voluntary and applications from employees in eligible positions will be processed in the order they are received.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
NLRB Administrative Law Judges Validly Appointed
The National Labor Relations Board today rejected a challenge
regarding the appointment of its administrative law judges ("ALJs"),
concluding that all of the Board’s ALJs have been validly appointed
under the Appointments Clause of the United States Constitution.
On June 21, 2018, the Supreme Court issued its decision in Lucia v. SEC, 585 U.S. ___, 138 S. Ct. 2044 (2018), finding that administrative law judges of the Securities and Exchange Commission (“SEC”) are inferior officers of the United States and thus must be appointed in accordance with the Appointments Clause, i.e., by the President, the courts, or the Head of Department. Id. at 2051. Unlike the SEC’s ALJs, the NLRB’s ALJs are appointed by the full Board as the “Head of Department” and not by other Agency staff members.
The challenge was raised by WestRock Services, Inc. (“WestRock”) in Case 10-CA-195617 on a motion to dismiss. Chairman John F. Ring was joined by Members Mark Gaston Pearce, Lauren McFerran, Marvin E. Kaplan and William J. Emanuel in the order denying WestRock’s motion.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
On June 21, 2018, the Supreme Court issued its decision in Lucia v. SEC, 585 U.S. ___, 138 S. Ct. 2044 (2018), finding that administrative law judges of the Securities and Exchange Commission (“SEC”) are inferior officers of the United States and thus must be appointed in accordance with the Appointments Clause, i.e., by the President, the courts, or the Head of Department. Id. at 2051. Unlike the SEC’s ALJs, the NLRB’s ALJs are appointed by the full Board as the “Head of Department” and not by other Agency staff members.
The challenge was raised by WestRock Services, Inc. (“WestRock”) in Case 10-CA-195617 on a motion to dismiss. Chairman John F. Ring was joined by Members Mark Gaston Pearce, Lauren McFerran, Marvin E. Kaplan and William J. Emanuel in the order denying WestRock’s motion.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Monday, August 6, 2018
Jones v. Sorenson
As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.
Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
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