As of October 10, 2024, certain employers located or doing business in the unincorporated areas of San Diego County must adhere to the San Diego County Fair Chance Ordinance (“SDFCO”) and California’s Fair Chance Act (“FCA”). Given key differences between the SDFCO and FCA, employers are urged to ensure that job postings, applications, offer letters, and other documents comply with the SDFCO as the County can begin issuing fines for noncompliance starting July 1, 2025. Fortunately, the County has provided a “San Diego Employer Hiring Toolkit,” which includes compliance templates, job offer letters, individual assessment forms, and more.

On October 7, 2024, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB”) issued a memorandum in which she opined that stay-or-pay provisions which require employees to repay expenses or bonuses upon termination of employment violate the National Labor Relations Act (“NLRA”) unless they meet a strict four-part test. The GC also instructed NLRB Regional Offices to prosecute employers who enter these types of agreements with non-supervisory employees, regardless of whether those employees are members of a union. The GC announced a 60-day “cure” window in which employers may take steps to revise any stay-or-pay provisions to comply with the four-part test and thus avoid prosecution by the NLRB. Although the GC’s memo does not have the force of law, employers may wish to consult counsel to assess the risk and consider whether to revise any such provisions before the expiration of the cure window on December 6, 2024.

California’s new Health Care Minimum wage will go into effect on October 16, 2024, and numerous health care facilities across the state will need to ensure they are paying the applicable minimum wages, which range from $18 to $23 per hour, depending on the type of facility.

On July 15, 2024, the California Supreme Court issued its decision in Ramirez v. Charter Communications, Inc., clarifying California law on the enforceability of several common arbitration provisions and the standards by which courts must review arbitration agreements. The decision is a helpful reminder for employers to work with experienced employment counsel to regularly review and update existing arbitration agreements.

As California employers know too well, the Private Attorneys General Act of 2004 (PAGA) allows employees to sue their employers on behalf of the State of California to collect civil penalties for Labor Code violations. Although PAGA was designed to alleviate the burden of overworked governmental agencies who oversaw California’s Labor Code compliance, PAGA has been subject to abuse in recent years by unscrupulous plaintiffs’ attorneys.

In the past few weeks, federal agencies have announced several new rules, regulations, and guidelines that will impact employers nationwide, including in California. WTK summarized the new regulations regarding the Pregnant Workers Fairness Act last week – you can read our full alert here. Today, we will provide key information about three additional new developments.

The U.S. Equal Employment Opportunity Commission (“EEOC”) published its final regulations implementing the federal Pregnant Workers Fairness Act (“PWFA”). These regulations go into effect on June 18, 2024, and the EEOC assembled summary materials explaining the PWFA and its regulations, which can be found here. Employers would be well-served to use the time before the regulations go into effect to familiarize themselves with PWFA and its regulations, how they create additional layers of legal compliance for certain qualified individuals who need an accommodation, and how the PWFA differs from existing law.

As employers in California know quite well, wage and hour law is complex and ever-evolving. One recent area of focus is whether the time employees spend undergoing employer mandated security checks is compensable. On March 25, 2024, the California Supreme Court weighed in on this topic in Huerta v. CSI Electrical Contractors. Additionally, the Court addressed compensability of time spent traveling on company property between a security gate and the work site and compensability of meal periods when employees are prevented from leaving the premises.

Last year, Governor Newsom signed Senate Bill 553, which requires almost all California employers to establish, implement, and maintain an effective workplace violence prevention plan. Employers are also required to keep a violent incident log, train employees on the workplace violence prevention plan, and keep records of workplace violence hazard identification, evaluation and correction. Employers must comply with these requirements by July 1, 2024.

On January 18, 2024, the California Supreme Court issued its much-anticipated decision in Estrada v. Royalty Carpet Mills, Inc., to resolve a split in authority as to whether trial courts have inherent authority to strike California Private Attorneys General Act (PAGA) claims on manageability grounds.

New Federal Standard for Independent Contractors

The federal Department of Labor (DOL) published a new rule last week with a test for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA), which sets standards for the minimum wage, overtime, and recordkeeping under federal law. The FLSA only applies to “employees” – it does not apply to “independent contractors.” Independent contractors are not subject to the minimum wage, overtime, or other employment benefits, but misclassification of workers as independent contractors can expose employers to significant penalties. Therefore, it is important for employers across the country to understand the new DOL test for independent contractor status.