Starting Jan. 1, employees who work in warehouse distribution centers will gain important new protections in the state of California. 

Targeting behemoths such as Amazon, state lawmakers passed AB 701 in the fall. The law aims to protect workers from extreme productivity quotas that lead to injuries or skipped breaks. With Amazon and its massive package-delivery workforce pressuring other retailers to follow along, California wants to clarify unacceptable practices now. 

“We cannot allow corporations to put profit over people,” Gov. Gavin Newsom said when he signed the bill. 

Here are the key points of AB 701: 

• More transparency. Employers must let workers know up front exactly what is expected. That includes providing, in writing, a description of all applicable quotas — number of tasks or materials to handle, relevant time periods, and any potential negative consequences for missing a quota. This point adds transparency to a subject that companies have guarded as proprietary. 
• More employee rights. A current — or former — employee can ask for his quotas and 90 days of his work speed data if he thinks that meeting a quota has made him miss a state-mandated break or sacrifice safety. He then could sue to block unsafe quotas and to enforce change, and potentially win costs and attorney’s fees. Also, an employee can’t be fired or punished for failing to meet an unsafe quota. 
• Active state enforcement. The Labor Commissioner — in coordination with other state agencies — can access data about workplace injuries and other details, using this to strategically analyze which warehouses may have unsafe productivity quotas and act 

based on the results. Separately, the justice system can pursue civil or criminal action against employers based on violations of the new law. 

California takes workplace safety seriously, particularly considering the vital role of warehouse employees during the pandemic. If productivity quotas at work are endangering your health, safety or workplace rights, the experienced employment lawyers at Keller Grover can help. We offer free consultations to help you understand your situation and legal options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.

A new California law meant to help employees avoid arbitration got a partial boost from a California court, but nothing is final yet.

The law, signed late in 2019, seeks to protect workers who don’t want to sign employment agreements that force arbitration — as opposed to suing in court — if they end up at odds with their employers. Consumer advocates and others have said mandatory arbitration agreements often yield one-sided solutions, keeping secret employer wrongdoing and blocking employees from the benefits of judicial proceedings. But the U.S. Chamber of Commerce, joined by various other entities and trade associations, has taken issue with Assembly Bill 51. Businesses typically favor private arbitration as quicker and cheaper than litigation.

Indeed, The Washington Post recently reported that arbitration cases shot up 17 percent last year, and employees received money in a mere 1.6 percent of cases. In arbitration, there’s little to no option for appeals.

Here’s what you need to know about the issues involved, and what they mean for you:

Let’s start with AB 51. Basically, California lawmakers wanted to make sure that employees weren’t forced to agree to arbitration as a condition of employment. Also, the law prevents employees from threatening or retaliating against employees who won’t agree to mandatory arbitration. AB 51 gave the state Department of Fair Employment and Housing some teeth to investigate and resolve complaints, including bringing a civil action on behalf of a wronged employee if necessary. Violations would count as unlawful employment practices, subject to criminal penalties, as well.

The U.S. Chamber and others challenged the law, and the U.S. District Court for the Eastern District of California took their side, saying the Federal Arbitration Act governs mandatory arbitration agreements and is greater than any state law. The court issued a preliminary injunction to prevent enforcement of AB 51.

Then, a divided U.S. Court of Appeals for the Ninth Circuit weighed in, ruling 2-1 that there’s a distinction between laws influencing the period before an arbitration agreement happens and an existing agreement. The FAA applies to existing mandatory arbitration agreements, but not to whether they can be required, the court said. Similarly, the circuit court ruled that civil and criminal penalties for employers only can apply to actions before an agreement is made. Consensual arbitration agreements must be executed per FAA requirements.

Now, the U.S. Chamber wants a rehearing en banc, basically trying to overturn the Ninth Circuit ruling. We’re following the ups and downs of this legislation as it moves through the courts. Much is up in the air as enforcement of the law remains in limbo. But you should be aware of your rights. If your employer or a potential one is forcing you to sign a mandatory arbitration agreement as a condition of getting a job, keeping a job, career advancement, or any other benefits, there may be ways to protect yourself. The experienced employment lawyers at Keller Grover offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Contact us for a free consultation. 

As efforts to increase the number of Americans who are vaccinated against COVID-19 ramp up, employees can expect to see more vaccine mandates in their workplaces. 

Over the summer, the California Department of Public Health issued orders requiring certain covered health care facilities and school districts to verify their employees’ vaccination status and implement mandatory regular testing of unvaccinated workers. 

On Sept. 9, as part of his comprehensive strategy to combat the spread of the coronavirus, President Joe Biden announced that he was instructing the Occupational Safety & Health Administration to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing. As many as 80 million private-sector employees are expected to be impacted by it.  

While the topic of vaccine mandates remains politically and emotionally charged, employees should be aware of their rights under state and federal law. 

Although the federal government has broad authority to implement vaccine mandates, employees are entitled to seek health exemptions under the Americans with Disabilities Act and religious exemptions under Title VII of the Civil Rights Act of 1964. 

Employees who do not get vaccinated for COVID-19 because of a disability are required to tell their employer that they need an exemption or a reasonable accommodation, according to guidance from the Equal Employment Opportunity Commission. Employees do not need to specifically mention the ADA or the phrase “reasonable accommodation,” however. 

The employee and employer then engage in an interactive process to identify potential workplace accommodations that would not impose an undue hardship on the employer, which the courts have defined as having a more than minimal cost or burden.

Under the ADA, an employer can seek more information in support of the exemption from the employee’s doctor or healthcare provider. 

When it comes to religious exemptions, Title VII requires employers to accommodate employees whose sincerely held religious belief, practice, or observance is in conflict with a work requirement, unless providing such an accommodation would create an undue hardship. 

According to the EEOC, the definition of religion in Title VII is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. The EEOC additionally advises employers to ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, practice, or observance. 

If an employee requests a religious accommodation and the employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a particular belief, practice, or observance, the employer would be justified in seeking additional supporting information, the EEOC also advises. 

Employers are required under Title VII to thoroughly consider all possible reasonable accommodations, including telework and reassignment. 

California state law also sets out protections for employees. Under the California Fair Employment and Housing Act, employers may require employees to receive an FDA-approved COVID-19 vaccine, so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity. 

If you have questions about obtaining exemptions on religious or health grounds, reach out to us for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have zealously advocated for workers, recovering hundreds of millions of dollars for clients and class members. 

Hourly workers in California who are not fully compensated for meal and rest breaks now have grounds to recover that shortfall following a recent California Supreme Court ruling. 

On July 15, the California high court unanimously ruled in Ferra v. Loews Hollywood Hotel, LLC that workers who are not given meal or rest breaks during their shifts are entitled to premium payments that factor in all non-discretionary payments they receive, not just their hourly wages. 

The lead plaintiff in the case, Jessica Ferra, worked as a bartender for Loews. The hotel paid her hourly wages as well as quarterly non-discretionary incentive payments. 

California state law requires that employers  provide their hourly employees meal and rest periods. Section 226.7(c) of the California Labor Code requires employers that do not provide compliant meal or rest breaks to pay their employees for one additional hour of premium pay at the employee’s “regular rate of compensation.”

In Ferra’s case, Loews paid workers who did not receive meal or rest breaks an additional hour of pay according to their hourly wage.  However, the  company did not factor in any non-discretionary payments in addition to the workers’ hourly wages, leading Ferra to file a class-action lawsuit against the hotel. She alleged the hotel violated state law by failing to pay for her noncompliant meal or rest breaks in accordance with her “regular rate of compensation,” which includes her bonus payments.

The trial court granted Loews summary adjudication after finding the hotel’s practice of calculating premium pay was proper. The Court of Appeal affirmed the ruling. Ferra appealed to the Supreme Court, which overturned the Court of Appeal’s decision. 

The main question before the Supreme Court was whether the state legislature intended the phrasing “regular rate of compensation” under Section 226.7(c) to have the same meaning as the phrase “regular rate of pay” under another statute governing overtime payments, Section 510(a) of the California Labor Code. 

Loews asserted that the language in Section 226.7(c) does not have the same meaning as the overtime provision, and only requires employers to pay an employee’s base hourly rate.  The court disagreed, holding that the terms are synonymous, and that the phrasing “regular rate of compensation” “encompasses all non-discretionary payments, not just hourly wages.” 

“This interpretation of section 226.7(c) comports with the remedial purpose of the Labor Code and wage orders and with our general guidance that the ‘state’s labor laws are to be liberally construed in favor of worker protection,’” said Justice Goodwin H. Liu, who wrote the opinion. 

The court also determined the ruling should apply retroactively — leaving the door open for claims from workers for past improper payments. 

If you need help understanding your legal options and protections in this area, contact Keller Grover for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have recovered hundreds of millions for clients and class members.

Office costs, not surprisingly, took a dive during the pandemic-driven work-from-home era.

Looking ahead, if U.S. employers embraced remote work just half the time for workers who are both able and willing to work from home, they could collectively save more than $500 billion a year, according to an estimate from Global Workplace Analytics. The firm predicts at least a quarter of the workforce will work from home for multiple days a week post-pandemic.

That means workers should be informed and prepared to negotiate should their employer require some remote work.

So how does this situation pan out for workers? 

Under California law, companies must cover all reasonable costs directly related to an employee’s work. Utility bills, paper and printers, computers, Internet and phone service, and workspace accommodations are just some of the costs that may arise when working from home. Obviously, specific needs can vary based on industry and role.

According to the data from Global Workplace Analytics, outfitting an employee with a home office costs an average of just $670 annually; by contrast, not having that worker in the office saves about $11,000 a year.

That may sound straightforward, but the calculations get complicated. How much of a utility or Internet bill is the company’s responsibility? What if you have to get better Internet for all those Zoom calls? And how about ergonomically correct office furniture? 

Much of this requires open communication with an employer — know your expenses and be prepared to make your case. Some employers try to come up with a flat sum that seems fair. When it comes to office necessities, if a company buys it, the desk or computer or fill-in-the-blank probably goes back to the company should you switch jobs. Costs such as your mortgage (which you would have paid anyway) or your favorite kind of coffee (not strictly a necessity) most likely don’t count. 

But with such a dramatic shift in working environments, many disputes are likely to be settled in court as we hash out the nuances under the law.

If your employer isn’t footing its part of the bill for your remote work, reach out to us for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have zealously advocated for workers, recovering hundreds of millions of dollars for clients and class members.