AB 2183 makes it easier for farmworkers to unionize. Until the passage of this new law, union elections usually took place on the growers’ properties. The new measure allows farmworkers to vote by mail or fill out a ballot card to be dropped off at Agricultural Labor Relations Board.
“No Spanish” Rule is National Origin Discrimination and Retaliation, Says EEOC
The Equal Employment Opportunity Commission (EEOC) recently settled charges of national origin discrimination and retaliation against Total Employment and Management (TEAM). This Washington employer instituted a “No Spanish” rule in its workplace. TEAM, a staffing company, agreed to pay $276,000 to settle the charges filed with the EEOC. According to the EEOC, TEAM imposed a “No Spanish” rule without an adequate business necessity. Also, it fired five employees from two locations when those employees opposed the rule and continued to speak Spanish in the workplace.
As part of the settlement, TEAM agreed to revise and update its policies, provide them in English and Spanish, and train its employees on harassment and discrimination.
Under the EEOC guidance and federal law, “English Only” employment rules violate Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination unless the employer can demonstrate a business necessity. In addition, these rules are considered discriminatory due to a disparate effect on employees who speak English as a second language or through disparate treatment against those same employees when they speak their language of birth and are disciplined or otherwise adversely affected.
EEOC regulations state that a rule requiring employees to always speak English is presumed to violate Title VII and will be closely scrutinized by the Commission. However, such a rule can be valid in very limited circumstances and usually only at certain times. Some situations the EEOC indicates might meet the business necessity requirement are the following:
- Communicating with customers, coworkers, or supervisors who only speak English.
- Employees must speak a common language in emergencies or other situations to promote safety.
- For cooperative work assignments, the English-only rule is needed to promote efficiency.
- To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.
Generally, such a rule cannot be applied to casual conversations between employees when they are not performing job duties.
Likewise, federal courts have upheld “English Only” rules when there is a potential for workplace danger, where a foreign language is being used to further hostility in the workplace, or when monitoring of employees by supervisors is necessary. Trends in these court decisions track the EEOC guidance—the business justification must be narrow and necessary, and those justifications are shrinking.
Employers considering any rule regarding establishing or limiting language in the workplace should consult with employment counsel before implementing such a rule. A facially neutral policy may be discriminatory when applied, and a believed business justification for such a policy may run contrary to recent decisions and guidance.
AB 2134: Information on Access to Reproductive Healthcare
AB 2134: Information on access to reproductive healthcare for employees of religious employers
Despite countless offensive and degrading decisions from the U.S. Supreme Court diminishing access to safe and affordable reproductive healthcare over the last several years, California Democrats continue to take measures to secure access to abortion services and contraceptives for their constituents. Under AB 2134, if a religious employer’s healthcare coverage fails to provide employees with abortion and contraceptive coverage or benefits, the employer must provide its employees with written information regarding abortion and contraceptive services that may be available to them at no cost through the California Reproductive Health Equity Program. AB 2134 also requires the Department of Industrial Relations to post to its website information regarding abortion and contraception benefits available through the program.
AB 2068: Employers Required to Post Cal/OSHA Information Regarding Citations or Orders
AB 2068: Employers required to post Cal/OSHA information regarding citations or orders in English and other specified languages
Employers must already post Cal/OSHA citations in English in places readily seen by all employees. Now, AB 2068 expands worker access to these disclosures by requiring Cal/OSHA citation notices to be in English as well as the top 7 non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Survey, as well as Punjabi (if not already included in the top 7). Employers that fail to post citations in all required languages may be subject to (further) citation by Cal/OSHA.
AB 1949: Employers Required to Provide 5 Days of Bereavement Leave
AB 1949: New requirement for employers to provide 5 days of bereavement leave
AB 1949 makes it an unlawful employment practice for a covered employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave (which need not be consecutive) upon the death of a family member. A “covered” employer is: (i) a person who employs 5 or more persons to perform services for a wage or salary; and (ii) the State and any political or civil subdivision of the State, including, but not limited to cities and counties. An “eligible” employee means a person employed by the employer for at least 30 days prior to the commencement of the leave. A “family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code Section 12945.2
The law provides that bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
The law requires that the leave be completed within 3 months of the date of death.
The law also requires employees, if requested by the employer, within 30 days of the first day of the leave, to provide documentation of the death of the family member.
“Documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
AB 1576: Superior Court Lactation Rooms
AB 1576: Superior Court lactation rooms beginning July 1, 2024
Until AB 1576, nursing parents who visited California Superior Courts had no choice but to pump or feed their babies while sitting on a toilet in the courthouse bathroom or in the hallway across from their adversaries. This includes nursing lawyers, whose work requires spending hours tethered to the courtroom in hearings and trials.
Fortunately, beginning July 1, 2024, California Superior Courts will be required to provide court users, including lawyers and litigants, with access to a lactation room in any courthouse which a lactation room is also provided to court employees. The bill requires the lactation room to meet the requirements imposed upon an employer with respect to providing a lactation room for employees.
Non-Disparagement Clauses Are Retroactively Voided, NLRB’s Top Cop Clarifies
The general counsel of the National Labor Relations Board issued a memo this week clarifying one of the biggest open questions after the NLRB rules broad non-disparagement clauses were illegal.
The general counsel of the National Labor Relations Board issued a clarifying memo on Wednesday regarding the “scope” of a February ruling by the federal agency’s board that said employers cannot include blanket non-disparagement clauses in their severance packages, nor demand laid-off employees keep secret the terms of their exit agreements.
Such provisions have become increasingly common in recent years, muzzling employees and otherwise stopping them from speaking up about working conditions by dangling a few weeks or months of pay in front of them at the exact moment they are losing their job.
In the memo sent to regional offices, General Counsel Jennifer Abruzzo addressed what had been one of the largest questions that resulted from the ruling: Does it retroactively void broad non-disparagement agreements that were signed prior to the February ruling? Abruzzo wrote that the decision does, in fact, have “retroactive application,” meaning that already-signed and “overly broad” non-disparagement clauses are no longer considered valid by the NLRB.
Abruzzo is charged with prosecuting cases against employers who break the rules. She said an unlawful clause would likely not invalidate an entire severance agreement, as the regional offices tend to “seek to have [the unlawful portions] voided out as opposed to the entire agreement.”
However, employers who attempt to continue to enforce illegal severance clauses could face trouble from the NLRB. While the NLRB typically has a six-month statute of limitations for labor violations, businesses who attempt to enforce illegal parts of an older severance agreement would be committing a contemporary “violation” and subject to enforcement, Abruzzo said.
Additionally, Abruzzo provided clarification around what non-disparagement and confidentiality clauses may still be considered legal. The provisions, she said, must be “narrowly-tailored.” In the case of confidentiality, the clause must serve to keep proprietary trade information secret “for a period of time based on legitimate business justifications may be considered lawful,” but must not have “a chilling effect that precludes employees from assisting others” or communicating with the media, a union, or other third parties.
With regards to non-disparagement, Abruzzo similarly said the provision must not only be both “narrowly-tailored” and “justified,” but limited to statements by an employee that fit the legal definition of defamation, meaning they are purposefully and maliciously untrue.
In February, the NLRB ruled that in a case regarding a Michigan hospital, laid-off workers had been asked to sign unnecessarily burdensome severance contracts that violated their labor rights. The decision overturned a pair of Trump-era decisions which had temporarily upended the previous “longstanding precedent” by saying that more broad non-disparagement and confidentiality clauses were lawful.
The NLRB this year said that the Trump era decisions were wrong and that the laid-off hospital employees had been asked to “overly broad non-disparagement and confidentiality clauses” that unnecessarily restrained their NLRB rights. The decisions led to questions about what the decision meant for people who signed similar non-disclosure agreements in the interim.
AB 1041: CFRA and Paid Sick Leaves Expanded to Cover Employee’s Care for a “Designated Person”
AB 1041 amends the California Family Rights Act (“CFRA”) and the Healthy Workplaces, Healthy Families Act of 2014, also known as the Paid Sick Leave Law, to permit eligible employees of covered employers to take leave to care for a “designated person” who does not have to be a family member. Rather, a “designated person” can be any individual related to the employee by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period.
AB 257: Council to Regulate Working Conditions for Fast Food Workers
AB 257: Council to regulate working conditions for fast food workers; on hold pending litigation and, potentially, a referendum
With AB 257, the Legislature will establish a new and powerful Fast-Food Council, the first of its kind in the State. Sponsored by the Service Employees International Union (“SEIU”) and inspired by its “Fight for $15 and a Union” movement, the Council will be empowered to regulate wages, hours, and working conditions of California’s fast-food employees, a population of workers historically subjected to hazardous working conditions and shamefully low wages.
The Fast-Food Council will be made up of 10 members, appointed by the Governor, Speaker of the Assembly, and the Senate Rules Committee, and will dictate working conditions for employees of chains with at least 100 outlets nationwide. The Council is expected to raise fast food worker wage rates as high as $22 an hour.
Unsurprisingly, the Chamber of Commerce has made destroying the bill a priority. As this article was going to print, a judge temporarily blocked the State from implementing the law as the result of a lawsuit filed by a coalition of giant corporate chain restaurants, which is seeking a referendum on the November 2024 ballot in a bid to overturn the law. “If and when the referendum challenging AB 257 qualifies for the ballot, the law will be put on hold,” said Katrina Hagen, Director of the Department of Industrial Relations.
None of this corporate chicanery would be possible but for the Supreme Court’s obsequious decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (holding that the Free Speech Clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations). Of course, while the Founders were well aware of the existence of various types of business enterprises (joint-stock companies, corporations such as the East India Company, which was incorporated in 1600, and the like), the Founders did not provide for any corporate rights in the Constitution or the Bill of Rights. Rather, the Founders understood that, to the extent that corporations had any type of personhood, it was a legal fiction limited to a courtroom. But we digress.
SB 1162: Expanded Pay Data Reporting and Mandatory Pay Scale Disclosures
Effective January 1, 2018, California’s Equal Pay Act prohibited employers, with one exception, from seeking applicants’ salary history information and required employers to supply pay scales upon the request of an applicant.
SB 1162 expands upon these pay transparency measures and counters workplace discrimination by requiring employers of 15 or more employees to: (i) include the pay scale for a position in any job posting; (ii) provide pay scale information to current employees and to applicants upon reasonable request; and (iii) maintain employee records, including job titles and wage rate histories, through the term of each employee’s employment and for 3 years after their employment has ended.
SB 1162 also expands covered employers’ pay data reporting obligations. Since 2021, California law has required private employers who have 100 or more employees and who must file a federal EEO-1 to file an annual pay data report with the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) on or before March 31 of each year. SB 1162 broadens these obligations in several significant ways.
First, the bill expands who must file a pay data report so that all private employers with 100 or more employees will be required to file a pay data report regardless of whether they also must file a federal EEO-1, and private employers with 100 or more employees hired through labor contractors will be required to submit a separate pay data report regarding these contracted workers.
Second, in addition to demographic and pay band information, employers’ pay data reports will also need to identify, within each job category, the median and mean pay rate for each combination of race, ethnicity, and sex.