What do you get when you cross blue state liberal marijuana laws with red state conservatism? A purple haze.

Copyright: chris2766 / 123RF Stock Photo
Copyright: chris2766 / 123RF Stock Photo

California voters approved recreational use of marijuana for adults in the November 2016 election. But federal law still characterizes marijuana as a Schedule I narcotic. The extent to which the current administration will attempt to enforce federal marijuana laws in more permissive states is anyone’s guess. White House Press Secretary Sean Spicer made comments at a press conference yesterday that indicated that the Department of Justice may take a dim view of recreational use, regardless of applicable state law. Attorney General Jeff Sessions is also well-known for his opposition to marijuana.

What does all this mean for California employers? Even though recreational use is legal, the law does not:

  • Require employers to permit use, possession, sale, or growth of marijuana in the workplace;
  • Prohibit policies against the use of marijuana by current and prospective employees; or
  • Prohibit pre-employment testing.

The problem with testing is that it’s not yet sensitive enough to tell whether someone was impaired at a particular point in time as opposed telling whether they’ve consumed marijuana in the last 30 days or so. Moreover, many employers have moved away from pre-employment testing because it eliminates too many seemingly qualified candidates.

Want more information about the marijuana laws in your area, check out our Cannabis Law Practice Group or follow practice co-chair Josh Horn on Twitter.

Potluck

Attention hospitality professionals.  Come join me and Sahara Pynes at the Potluck Conference on February 20-21st at the Hudson Loft in downtown Los Angeles.

This new conference is for professionals in the evolving hospitality industry, including hotels, restaurants, venues for private dinners, off-site catering, pop-ups and underground supper clubs.  It is open to innovators from all walks of the hospitality industry (chefs, designers, producers, venue operators) to share a forum of conversation, workshops, and education.

I will be providing a keynote address on Tuesday, February 21st on the Top 10 Trending Topics in Hospitality HR.  Sahara will follow with a session on Employee Documentation from A to Z.

Check it out.  You can register here.  We hope to see you there!

We recently updated a 15-page Employer’s Guide to Doing Business In California. The guide provides clear summaries of California’s unique requirements for meal and rest periods, the Fair Pay Act, paychecks and wage statements, the various leaves of absence, and more. If you subscribe to that whole “ounce of prevention” theory, this is a great way to see if your company is complying with California’s unique employment law requirements. You can download a pdf of the Guide here.

Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit and learning first hand why California ranks as the number one judicial hellhole.

Copyright: ibreaker213 / 123RF Stock Photo
Copyright: ibreaker213 / 123RF Stock Photo

Special thanks to Cristina ArmstrongTyreen Torner, and Sahara Pynes for their work updating prior versions of the guide.

No matter which part of the political spectrum you might find yourself on, whether it be the far left, the alt right, or somewhere in between, this past weekend certainly provides some food for thought applicable to California employers.

Gender equality word cloud
Copyright: arloo / 123RF Stock Photo

The country, and many workplaces, have become increasingly polarized.  Yet many people are craving inclusion and a sense of hope.  Employees want to be valued, appreciated and heard.  Supporters of the new administration certainly voiced a sense of hope that things might change, and that those left behind by a growing economy will see some actions to address their concerns.  The hundreds of thousands of people who marched in various cities across the county, including a reported 750,000 here in Los Angeles, also voiced a need for a sense of inclusion with other like-minded individuals, even if those people may have different views on specific issues.

While discussions about politics in the workplace can be divisive and are universally not recommended, discussions about inclusion are important.  That inclusion can be based on sex, race, sexual orientation, religion, disability or any other category protected by law.  In fact, the law here in California has granted protections to individuals in workplaces who raise concerns about pay equity, discrimination, harassment, and retaliation for raising concerns about any such issues.  So open discussions in the workplace should be welcomed.

Many people are wondering what they can do to make a difference.  On that issue, and as it relates to inclusion in the workplace, here are a few suggestions (several adapted from the Father of a Daughter Initiative):

  • When someone at work opens up to you about an issue they believe is unfair, hear them out and resist the urge to be defensive.  You don’t need to agree, but you can certainly listen and try to understand their point of view.
  • Act to correct issues of bias or micro-inequities you may witness or hear about.  This can be as simple as repeating and emphasizing what someone with less power says at a meeting, while explicitly giving that person credit (“as Maria just said, I agree that we need to ….”).  This concept has been referred to as “shine theory” or “amplification.”
  • If you are in a position of power, make sure to look beyond your regular go-to personnel, and expand your net to someone you may not have considered for a special assignment or important role.
  • Be a visible advocate for those in your workplace less powerful than you are.

My hope, as Co-Chair of my firm’s Womens’ Initiative, is that this weekend’s momentum can be followed by many individual acts of inclusiveness at work.  Change starts with each one of us.  Let’s all be open to alternate points of view, make a difference in our own way, and strive to be a positive influence on those around us.

I hope you’ll join my Fox colleagues Keith Chrestionson and Jaemin Chang and me on January 27 for the next in our series of breakfast briefings in our San Francisco office.  Our breakfast series explores various topics of interest to the Bay Area’s business communities in informal presentations and interactive Q&A sessions.  This session will focus on new California laws and local ordinances that are most likely to affect employers throughout the state, including:

  • Legalization of marijuana and its effect on the workplace
  • Amendments to the California Fair Pay Act
  • “All gender” bathrooms
  • New rules for meal and rest periods
  • Domestic violence leave
  • Expanded prohibitions on smoking at work
  • State disability and paid family leave benefits
  • Local ordinances (parental leave, minimum wage)

The event will take place at:

345 California Street
Suite 2200
San Francisco CA 94104-2670
(View Google Map)

The presentation and Q&A session will begin at 8:30 a.m., followed by a networking reception at 9:30 a.m. Breakfast and refreshments will be served.  Please register here by January 25.

Last Friday, the US Supreme Court agreed to hear cases from the 9th,  7th, and 5th Circuits in which the courts are split on the issue whether class action waivers in employee arbitration agreements violate Section 7 of the National Labor Relations Act by inhibiting employees’ rights to engage in “concerted activity”.  The NLRB has been promoting this novel theory for the past few years, under which the arbitration agreement can be invalidated notwithstanding the fact that it is otherwise enforceable under the preemptive effect of the Federal Arbitration Act.  Readers of this blog will recall that the California Supreme Court rejected that theory in Iskanian v. CLS. The defendant in that case argued that a class action does not necessarily involve “concerted” action at all.  A class action merely requires one employee with a complaint and a lawyer to file the case.  Only in the world of legal fiction can such a case automatically constitute “concerted activity”.  That legal fiction is a far cry from the scenario — several employees standing around the water cooler griping about wages and talking about unions and strikes —  envisioned by Congress in 1935 when the phrase “concerted activity” was coined.

Now, the US Supreme Court will settle the issue, and the lower  courts and particularly the NLRB will finally be bound by the result.  The cases will be briefed and argued later in the year.  By then, there will likely be a full complement of nine Justices on the Court.  The current Court may be split 4-4 on this issue.  The new Justice, assuming she or he is confirmed over what  is likely to be fierce opposition in the Senate,  will thus probably  be the deciding vote in these casesThe cases are Morris v. Ernst&Young (9th Cir.), Lewis v. Epic Systems (7th Cir.), and Murphy Oil v. NLRB (5th Cir.).  In these cases, and other employment cases likely to come before the Supreme Court in the near future, the stakes are high and the issues profound.  As we have said before, what a difference an empty chair makes.

Let’s pick up where we left off. In our last post of 2016, I was complaining about the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. The majority opinion in that case said that employees who were required to carry phones or pagers on their rest breaks, even if they didn’t get called or paged, were deprived of their statutory breaks and were therefore owed a one-hour penalty. While I found plenty to complain about in that decision (I’m good that way), there’s another issue I want to address.

Copyright: bruno135 / 123RF Stock Photo
Copyright: bruno135 / 123RF Stock Photo

The third sentence of the decisions says: “During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” The language comes from Brinker Restaurant Corp. v. Superior Court, which dealt with meal periods. But what does it mean? Are employees exempt from substance abuse, dress code, firearm possession, and harassment prevention policies during breaks? Stated differently, is the employer powerless if workers use their break time to get drunk, strip off their clothes, and chase co-workers around the workplace with guns demanding sexual favors? I’d like to think that the answer is “no,” but Augustus, in interpreting the wage orders, urges us to give language its “plain and commonsense meaning,” If that’s what we’re supposed to do, it would be nice if the courts chose their words with a little more care. The penalties for not complying with wage and hour laws are draconian enough without the laws being too vague for employers to know what’s expected.

The worst aspect of California employment law is the way it combines unclear requirements with exorbitant penalties for noncompliance. So employers can’t necessarily tell what the law requires and, if they get it wrong, face crippling financial penalties. The latest illustration of that principle comes from the California Supreme Court’s December 22, 2016 opinion in Augustus v. ABM Security Services, Inc.

The plaintiffs in this consolidated class action worked as security guards and were required to keep their pagers and radio phones on during their 10-minute rest periods and to respond when needs arose. ABM argued that it was providing a sufficient rest period. But the trial court disagreed and decided on plaintiffs summary judgment motions that they were not relieved of all duty and that they were therefore entitled to $90 million in damages, interest, and penalties (the penalty for missing a 10-minute rest period being an hour of pay).

ABM appealed and the Court of Appeal reversed, holding that being on call does not constitute performing work. Then the California Supreme Court granted review and reversed the Court of Appeal, reinstating the $90 million judgment.

The Industrial Welfare Commission Wage Orders clearly state that employees must be “relieved of all duty” during meal periods. But there is no corresponding language in the rest period requirement. Instead, the majority opinion intuited that employees must be relieved of all duties during rest periods from analyzing the definition of “rest.” The court also looked at Labor Code §226.7, which prohibits employers from requiring employees to work during rest periods. Finally, the court focused on the fact that the Wage Orders make provisions for on-duty meal periods, but not for on-duty rest periods. That being the case, it reasoned, on-duty rest periods must not be allowed.

Copyright: twinsterphoto / 123RF Stock Photo
Copyright: twinsterphoto / 123RF Stock Photo

All of this begs the question whether being required to carry a radio or pager constitutes work. The majority opinion states that employees are not relieved of all duties if they’re required to be on call. This conclusion, it notes, is the most consistent with its interpretation of the Wage Orders and Labor Code and with the axiom that those sources should be construed in a manner to protect employees.

A two-justice dissenting opinion explained that the “the bare requirement to carry a radio, phone, pager, or other communication device in case of emergency does not constitute ‘work’ in any relevant sense of the term.” This was especially true, the dissent noted, given the lack of any evidence that any guards’ rest breaks ever were, in fact, interrupted. The dissent also explained that the majority opinion creates further ambiguity by saying that the employees in question were deprived of their rest periods where they were required to “remain on call, vigilant, and at the ready during their rest periods.” If requiring employees to be “vigilant” and “at the ready” is part of what made these rest periods inadequate, the dissent asked, shouldn’t the court explain what that means? Or do we need another decade’s worth of class-action litigation to sort that out, too?

Here are steps employers should take now to comply with this decision:

  • Prohibit employees from carrying employer-provided pagers, radio phones, or similar communication devices at work.
  • In most situations, you should not prohibit employees from using their personal mobile phones on rest breaks, since the time is their own and they must be free from employer control. But you should not require them to monitor their phones.
  • If an employee’s rest period is interrupted with work requirements, either provide a different uninterrupted 10-minute rest period (you could start the 10 minutes running again after the interruption) or pay the penalty.
  • If, as the employer, you exercise any control over what employees can do during their rest periods, consult counsel as to whether that practice is still defensible.

My December routine is pretty predictable…sitting by the fire with my favorite holiday season beverage and my laptop fully charged to update employment handbooks and forms for the new year.  As an employment law policy and counseling specialist, I’m working on handbook number seven so far this month and thought I would share some of my specific updates with you.

glasses.

  1.  Paid Sick Leave
    Though Los Angeles City Paid Sick Leave went into effect July 1, 2016, there are many employers without compliant policies.  The LA Ordinance doubles CA state-mandated sick pay but does not apply to exempt employees, like the state law does.  Additionally, the LA Ordinance regulations say that if an employer has a more generous PTO policy in existence, the City may deem the employer compliant.  The issue that I’m seeing is that many employer PTO policies exclude part-timers so there is a gap in compliance with respect to those part-timers who may be entitled to accrue more paid sick leave under the LA Ordinance than under the state law.
  2. Harassment
    We’ve said it before, but the “new” DFEH regulations went into effect April 1, 2016.  Most policies generally need a few small tweaks to be compliant, as detailed here.
  3. Fair Pay
    Though it only went into effect a year ago, there are two notable amendments in SB 1063 to the California Fair Pay Act that should be reflected in your policies.  The first amendment mandates that employees of different races or ethnicities be paid the same for performing “substantially similar” work. The other amendment forbids employers from relying on an employee’s salary history alone as justification for a pay gap between employees.
  4. Defend Trade Secrets Act
    New requirements for Confidentiality and Non-disclosure agreements and policies took effect earlier this year as we detailed in this Client Alert.
  5. Domestic Violence Notice
    Expanded protections for victims of domestic violence, sexual assault, and/or stalking take effect in 2017. The amended law requires employers to inform each employee of his or her rights established under the law by providing specific information in writing to new employees upon hire and to other employees upon request. Employers will not be required to distribute this information until the labor commissioner publishes the form employers will be able to use to comply with the law, which should happen no later than July 1, 2017.
  6. Wage Theft Prevention
    If you reclassified any employees from exempt to non-exempt given the uncertainty of the DOL regulations, be sure to issue newly non-exempt employees the required Wage Theft Prevention form upon reclassification and ensure compliance with time tracking, meal and break periods.

If you haven’t gotten to these updates yet, I’m sure I will be issuing 2017 edition handbooks straight through January, though I may go back to drinking my vanilla lattes by then.