E-Blasts

In a recent decision out of Washington, the Ninth Circuit considered for the first time whether, under the Fair Labor Standards Act (“FLSA”), the proper unit for determining minimum wage compliance is the workweek as a whole or each individual hour within the workweek.  The Ninth Circuit concluded that the workweek is the standard period of time over which minimum wage compliance is judged.  Based upon the Ninth Circuit’s decision, wages earned over the course of the work week may be averaged to determine whether the employer has met its minimum wage obligation.  Therefore, under the FLSA, employers need only ensure that their employees’ weekly pay divided by the total hours worked in that work week equals or exceeds the Federal minimum wage.

NLRB General Counsel Pick Confirmed by the Senate

By: Jizell Lopez

This week, the U.S. Senate confirmed Peter Robb, a management side labor attorney, as general counsel of the National Labor Relations Board (“NLRB”). As general counsel, he is expected to set the stage for the NLRB to overturn key pieces of the previous administration’s legacy.

It’s official. Governor Jerry Brown has signed all the legislative bills for the 2017 legislative year. There are several new laws that employers should be aware of and should be prepared to implement by January 1, 2018. We have previously reported on several of these bills, and we have compiled a list for ease of reference.

AB 450: “Immigration Worker Protection Act”

AB 450 will essentially take away an employer’s ability to voluntarily consent to ICE performing audits. The bill makes it clear that it does not override federal law and that employers must act in compliance with a subpoena or court order presented by ICE.

As of the effective date, January 1, 2018, employers will be prohibited from voluntarily consenting to immigration enforcement agents entering nonpublic areas of the workplace without a warrant. Additionally, employers will be prohibited from voluntarily consenting to immigration enforcement agents accessing, reviewing, or obtaining employment records without a subpoena or court order. Not only will employers be prohibited from providing voluntary consent, employers will be required to provide notice to current employees of an inspection of Form I-9 within 72 hours of receiving a federal Notice of Inspection. Penalties for non-compliance range from $2,000 to $5,000 for an initial violation and $5,000 to $10,000 for subsequent violations. For more information regarding this bill, see our previous post here.

On October 13, 2017, Cal/OSHA issued an advisory for workers in wildfire regions, available here. Employers are instructed to take appropriate measures under their Injury and Illness Prevention Program (“IIPP”) including:
 

Back in 2014 the National Labor Relations Board (“NLRB”), in its Babcock & Wilcox Construction Co. (“Babcock”) decision, revised a longstanding standard regarding the NLRB’s deferral to arbitration awards.  In that case, a forklift and crane operator, who also served as a job steward for her union, was terminated from her job after about two months because of safety and conduct violations.  The union filed a grievance, and pursuant to the applicable collective bargaining agreement, the grievance was submitted to binding arbitration before a joint labor-management subcommittee. The subcommittee denied the grievance and upheld the termination. The union filed an unfair labor charge with the NLRB, which resulted in a complaint being filed. The Administrative Law Judge (“ALJ”) recommended that the NLRB defer to the subcommittee decision and dismiss the complaint. The NLRB adopted the ALJ’s recommendation but in doing so set forth a new standard for determining whether to defer to an arbitration decision.

Salary History Inquiries Now Prohibited

On October 12, 2017, Governor Jerry Brown signed Assembly Bill 168 (“AB 168”), which adds section 432.3 to the Labor Code and prohibits all employers, including the state and local government, from asking job applicants to disclose their salary history.  However, the law does not prohibit applicants from voluntarily sharing their salary history with the employer.

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