Publications

The California Supreme Court recently issued a long-awaited opinion resolving a split in the Court of Appeal over whether trial courts may dismiss unmanageable PAGA actions. In Estrada v. Royalty Carpet Mills, Inc., filed January 18, 2024, the California Supreme Court considered whether trial courts possess inherent authority to strike/dismiss Labor Code section 2698 Private Attorneys General Act (“PAGA”) claims on manageability grounds. California appellate courts have reached conflicting results on the issue (see Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 697 (finding no inherent authority) Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, 766–767 (recognizing such authority) ; Woodworth v. Loma Linda University Medical Center (2023) 93 Cal.App.5th 1038, 1047, review granted Nov. 1, 2023, S281717 (Woodworth) (agreeing with Estrada that trial courts lack authority to dismiss PAGA claim for lack of manageability) ). In Hamilton v. Wal- Mart Stores, Inc. (9th Cir. 2022) 39 F.4th 575, 587, the Ninth Circuit resolved a similar split among federal district courts applying California law by rejecting the imposition of a manageability requirement.

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The United States Department of Labor (“DOL”) recently released a final rule that addresses the classification of workers as independent contractors under federal labor law. The rule goes into effect on March 11, 2024.

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Amendments to the Colorado Equal Pay for Equal Work Act (“EPEWA”) will go into effect on January 1, 2024. The EPEWA, which went into effect in January of 2021, prohibits Colorado employers who might discriminate against employees based on sex by paying less for substantially similar work, i.e., skill, effort, or responsibility. To that end, the EPEWA, which since its inception has required external or internal job postings to include salary or wage range, compensation and benefits, and the application deadline for job opportunities and promotions, will now add additional burdens on Colorado employers. Namely (1) requiring internal notifications regarding all job opportunities, not only promotions, and (2) mandating certain notifications after an applicant has been selected for an opportunity. Colorado employers were already grappling with how to comply with the EPEWA’s requirements, and these new rules may have made it harder.

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Effective December 31, 2023, the Chicago Paid Leave and Paid Sick and Safe Leave ordinance will replace the existing Paid Sick Leave ordinance. Under the new ordinance, employees accrue one hour of paid sick leave plus one hour of general paid leave for every 35 hours worked, with a cap of 40 hours for each type of leave annually. Employees can carry over up to 16 hours of general paid leave and 80 hours of sick leave to the next year. Alternatively, employers have the option to front-load both types of leave at the start of each benefit year, which exempts them from the rollover requirement for general paid leave, but not for sick leave. New employees can use paid sick leave after 30 days and paid leave after 90 days of employment, and may opt to use this leave before any other provided by the employer unless mandated otherwise by law.

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The National Labor Relations Board (NLRB) has implemented a final rule effective December 26, 2023, which broadens the criteria for determining “joint employer” status under the National Labor Relations Act (NLRA). This rule reinstates the broader Obama-era interpretation of joint employer by emphasizing the importance of an employer’s potential control over the essential terms of employment, regardless of whether this control is actually exercised.

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In a recent case, the Ninth Circuit Court of Appeals held that employees may be able to support a hostile work environment claim by presenting evidence of regular exposure to violent, misogynistic music, even when the music’s message is not directed to a particular individual, but is broadly offensive to both men and women.

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Beginning in March of 2020, the Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) allowed employers to complete the I-9 process remotely on account of the COVID-19 pandemic. On May 4, 2023, ICE announced that these Covid-19 “flexibilities,” would end on July 31, 2023, and that employers would have until August 30, 2023 to conduct an in-person physical inspection for all employees remotely verified and hired during Covid-19.

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On September 30, 2023, Florida will increase its minimum wage to $12.00. The increase in wage is a part of a yearly dollar increase that Florida instituted in 2020 following a voter-approved ballot measure. Florida’s minimum wage is set to increase to $15.00 by 2026. Because Florida’s tipped wage is $3.02, the increased minimum wage will increase the required cash wage for tipped employees to $8.98 in 2023 and presumably, $11.98 by 2026. All Florida employers are required to post the current minimum wage in their place of business where an employee can see it.

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On August 25, 2023, the National Labor Relations Board (the “NLRB”) released its long awaited Cemex Construction Materials Pacific (“Cemex”) decision. See NLRB Case No. 28-CA-230115. The crux of the Cemex case revolved around how to hold election procedures when an employer has allegedly committed unfair labor practices during the “critical period” of an election campaign between the filing of the election petition and the election itself. The NLRB responded to that question by instituting a framework that hearkens back to the Joy Silk standard used over 50 years ago, which required employers to bargain with a union unless it had a good-faith doubt of the union’s majority support among employees.

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On June 29, 2023, the United States Supreme Court overturned a decades-old precedent that held race-based affirmative action policies in higher education institutions were constitutional. However, in Students for Fair Admission, Inc. v. Harvard, the Court deviated from precedent and held colleges/universities can no longer use race as a factor in their college admissions. Although this ruling may not directly impact employment law, it inevitably will affect employers, via interpretations applicable to employers’ diversity, equity, and inclusion (DEI) programs.

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