New California Legislation Affects Employee Parental Activity Leave

October 26, 2015 by

parental leave activityNew California legislation affects employee parental activity leave. One of the many bills signed into law by Governor Jerry Brown on October 11, 2015 was Senate Bill 579. This bill amended Section 230.8 of the California Labor Code, which allows employees to take leave from work each year to participate in activities related to their children’s schooling or day care. The section, as revised, now applies to foster parents and stepparents, and it allows employees to take leave for a wider range of activities.

The Specifics of the Parental Activity Leave Bill

The basic provisions of Section 230.8 include:

  • Requiring California employers with 25 or more employees at a particular location to allow any employee who is a parent (or a guardian or grandparent with custody of a child) to take up to 40 hours of leave per year in order to participate in activities at their children’s schools and/or day care facilities.
  • An employee may not take off more than eight hours in a calendar month for these school or daycare activities, and the employee must provide his or her employer with reasonable notice.
  • An employee who decides to take leave for these activities must make use of any vacation time, compensatory time off, or personal leave to which he or she is entitled. In addition, if the employee is entitled to time off without pay, then he or she may make use of it for these activities.
  • The employee must provide the employer with written documentation from the school or daycare facility if the employer requests it.

SB 579 has amended the section in a number of ways relating to parental activity, including the following:

  • The term “parent” can now apply not only to a parent or a grandparent, but also to a stepparent, a foster parent, or someone who stands in loco parentis to a child. (“In loco parentis” refers to someone legally standing in the place of a parent.)
  • The term “licensed child daycare facility” has been replaced with the term “licensed child care provider.”
  • The time off may be used to find a school or child care facility, or to enroll or reenroll one’s child in a school or child care facility.
  • The time off may also be used to address an emergency related to a school or a child care provider. The statute explains that the term “emergency” refers to when the child of the employee is unable to remain at his or her school or child care facility. (The possible reasons for this include closure of the facility, behavioral problems, natural disasters, and a request from the school or child care provider that the child be removed.)

[Read more…]

Filed Under: California Employment Law, California Labor Law, Employee Rights Tagged With: , , , , , , , ,

The NLRB Changes Joint Employment Standards

October 12, 2015 by

joint employment, joint employment standardsThe National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

  • They are both employers within the meaning of the common law, and
  • They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Filed Under: Employee Rights Tagged With: , , , , , , ,

Will Mandatory Arbitration Agreements Become a Thing of the Past in California?

October 6, 2015 by

binding arbitration, arbitrationIn a previous blog post, we discussed a decision by the Ninth Circuit regarding mandatory arbitration agreements for employees. A major change to this area of law may be on the way in the state of California, if Assembly Bill 425 is signed into law. This bill would altogether prohibit employers from requiring their employees to sign arbitration agreements as a condition of their employment.

AB 425 was passed by the California Assembly and Senate in August 2015. If it is signed into law by Governor Jerry Brown, it will take effect on January 1, 2016. The bill would become Section 925 of the California Labor Code.

What Does the Bill Require?

AB 465, if enacted, will prohibit any employer from requiring an employee, as a condition of employment, to agree to the waiver of “any legal right, penalty, forum, or procedure for any employment law violations.” It also prohibits employers from threatening, retaliating against, or discriminating against employees for refusing to sign such waivers. In addition, it stipulates that if a waiver of this type will be unenforceable if it is required from an employee (or a potential employee) as a condition of employment or continued employment.

You may be wondering how, under those regulations, an employee’s agreement to arbitrate would be legally valid. The statute stipulates that any waiver of employment rights (such as an agreement to arbitrate) must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” If the employer seeks to enforce the waiver, then the employer would have the burden of proof to show that the waiver was knowing and voluntary.

There are several other important aspects of AB 465:

  • If the bill is enacted, it will apply only to waivers that were signed on or after January 1, 2016 – so you do not have to worry that this legislation will render any current contracts invalid.
  • It authorizes reasonable attorney’s fees to the prevailing claimant.
  • It exempts organizations that are considered self-regulatory under the Securities Exchange Act of 1934, and it does not apply to regulations adopted under that Act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes between an employer and an employee.
  • It does not apply to employees who were individually represented by legal counsel when negotiating the terms of an agreement to “waive any right, penalty, remedy, forum or procedure for a violation of this code.”

Binding Arbitration and Preparing for the Future

If AB 465 is passed into law, it will have major ramifications for employers who require their employees to sign arbitration agreements. If you are an employer in California, and you would like your employees to commit to arbitration, it may be in your best interests to begin thinking now about how you will revise your policies if the bill is enacted. [Read more…]

Filed Under: Binding Arbitration, California Employment Law Tagged With: , , , ,
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