Latest News, Updates, and Issues Affecting Labor
Private Sector / Public Works
When an employer commits a serious unfair labor practice (“ULP”), the General Counsel of the NLRB has the authority to petition a federal court for immediate injunctive relief—known as “10(j).” For example, if an employer fired key Union supporters in the middle of an organizing campaign—like Starbucks has been accused of doing on multiple occasions—the General Counsel can ask a court to reinstate those workers while the NLRB’s months-long (or years-long) administrative process plays out.
A California appellate court in Lopez v. La Casa De Las Madres (2023) 89 Cal.App.5th 364 recently concluded that workers bringing pregnancy discrimination claims must prove: (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff's employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job.
On August 25, 2023, the National Labor Relations Board issued Quickway Transportation, Inc., 372 NLRB No. 127 (Aug. 25, 2023). This case arises out of a Teamsters’ organizing drive of truck drivers at a Louisville terminal operated by Quickway. The terminal serviced a transportation contract with the Kroger Company. The Union won a Board election in June 2020. A series of unfair labor practice charges were settled two months later and approved by the Board.
California is known for its protective paid sick leave laws for workers. Under the Healthy Workplaces, Healthy Families Act of 2014, often referred to as the Paid Sick Leave Law (“PSLL”), most employers are currently required to provide employees with at least three paid sick days per year. The California legislature recently expanded the PSLL with S.B. 616, which increases the paid sick leave requirement to five days per year, effective January 1, 2024.
On October 11, 2023, Governor Newsom signed into law SB 423 and SB 4, two important and related affordable housing production bills aimed at tackling the state’s housing crisis. Governor Newsom explained that he signed the bills because of “simple math—California needs to build more housing and ensure the housing we have is affordable.”
Assembly Bill (“AB”) 1355 becomes effective on January 1, 2024. The bill authorizes employers to provide specified documents related to benefit claims, such as unemployment insurance, and California earned income tax credits, by email, if the employee opts into receipt of electronic notification.
Assembly Bill No. 594 (AB 594) seeks to address wage theft issues in California by introducing an additional method of enforcing the Labor Code. AB 594 permits public prosecutors, including the Attorney General, a district attorney, a city attorney, a county counsel, or any other city or county prosecutor, to independently prosecute certain wage and hour violations that occur within their geographic jurisdiction. Previously, only the Labor Commissioner’s office had this power.
Senate Bill 553 (SB 553), effective from July 1, 2024, creates the first general industry workplace violence prevention safety requirements in the United States. SB 553 amends the California Labor Code by adding Section 6401.9, which requires covered employers to establish a comprehensive workplace violence prevention plan. This plan must involve employee participation in identifying and addressing workplace violence hazards, coordination among employees, and procedures for seeking assistance from law enforcement agencies. In addition to creating and implementing this violence prevention plan, covered employers must maintain a detailed violent incident log that records all workplace violence incidents, responses, and injury investigations in line with the prevention plan’s guidelines. Unions are encouraged to bargain with employers over these plans and their effects.
Starting January 1, 2024, the Protect Grocery Workers Jobs Act (AB 647) will protect grocery and warehouse workers’ jobs by strengthening existing statewide grocery worker retention laws and expanding coverage to warehouse workers.
Governor Gavin Newson signed into law Senate Bill (“SB”) 497 on October 8, 2023. California state law currently prohibits employers from disciplining, discharging, discriminating, or otherwise retaliating against employees because the employee engaged in certain protected conduct. SB 947 establishes a “rebuttable presumption” in favor of an employee’s claim if an employer retaliates against the employee within ninety (90) days of engaging in protected activity. Protected activity under SB 947 includes making a wage claim or a complaint about unequal pay. The bill establishes that in addition to other remedies, an employer is liable for a civil penalty of up to $10,000 per employee for each violation, awarded to the employee who was retaliated against. The new law goes into effect on January 1, 2024.
The passing of California Assembly Bill 636 helps ensure H-2A visa farmworkers are properly informed about their legal rights in the workplace.
In a significant development on October 7, 2023, Governor Gavin Newsom signed Senate Bill 700 (“SB 700”) into law, which amends California's Fair Employment and Housing Act (“FEHA”) to extend protection against discrimination to job applicants with a history of prior cannabis use. This new provision is set to become effective on January 1, 2024.
College athletes have been consistently denied the right to organize unions, collectively bargain, and receive fair compensation, despite producing billions of dollars for their universities, conferences, and the National Collegiate Athletic Association (“NCAA”). At the federal level, this disparity has been lessened somewhat recently by the ability of certain college athletes to negotiate “name, image, and likeness” compensation deals.
Thanks to a monumental, years-long effort from healthcare workers and their unions, over 400,000 workers at various healthcare facilities across California will see significant wage increases as early as July 2024. Under Senate Bill (“SB”) 525, the minimum wage for workers who provide direct patient care or support services at large hospitals and dialysis clinics will be raised to $23 in 2024, $24 in 2025, and $25 in 2026. The minimum wage for another group of workers at smaller healthcare facilities will move to $21 in 2024, $23 in 2026, and $25 in 2028. There are separate timelines for workers at community clinics and “financially distressed” healthcare institutions, but in sum, the bill requires progressive minimum wage increases for all covered healthcare workers over the next few years.
The legislature substantially increased the amount of paid sick leave required by California law. The new law (which takes effect on January 1, 2024) preserves the existing accrual rate under California’s paid sick leave law (one hour accrued for every 30 hours worked). However, employers may use a different accrual method as long as eligible employees accrue (a) no less than 24 hours (or 3 days) of paid sick leave by the end of their 120th day of employment, or (b) no less than 40 hours (or 5 days) of paid sick leave by the end of their 200th day of employment.
Senate Bill 150 (“SB 150”) aims to ensure that federal funding received through the federal Infrastructure and Investment Jobs Act (often referred to as the Infrastructure Bill), Inflation Reduction Act, and CHIPS and Science Act is allocated to regional training partnerships and used to promote community benefits.
For the first time ever, California employers with 5 or more employees must provide employees, who have worked for at least 30 days, with 5 days of reproductive loss leave starting January 1, 2024. “Reproductive loss” includes a miscarriage, failed surrogacy, stillbirth, unsuccessful “assisted reproduction” (such as artificial insemination or embryo transfer) or failed adoption. If an employee suffers more than one reproductive loss in a 12-month period, the employer need not grant more than 20 days of leave within 12 months.
Under Assembly Bill 1228, the minimum wage for fast food restaurant employees will increase to $20 per hour starting April 1, 2024. The bill also establishes a Fast Food Council within the California Department of Industrial Relations, which is empowered to establish annual minimum wage increases of up to 3.5%, with certain limitations, starting on January 1, 2025. The Fast Food Council also has the authority to establish minimum standards on working hours and other working conditions to maintain the health and safety of fast food restaurant employees through January 1, 2029. Local governments are not allowed to enact or enforce any laws setting wages and salaries for fast food restaurant employees during this time.
Assembly Bill 800 becomes effective in California on August 1, 2024. The bill establishes the week including April 28 as Workplace Readiness Week, which shall be a part of Labor History Month in May each year. During this week, all public high schools, including charter schools, will be required to provide students in grades 11 and 12 with information on workers’ rights, including laws on child labor, wage and hour protections, worker safety, workers’ compensation, unemployment insurance, paid sick leave, paid family leave, state disability insurance, the California Family Rights Act, and the prohibition against misclassification of employees as independent contractors. Schools will also be required to educate these students on their right to organize a union in the workplace, prohibitions against retaliation, and the labor movement’s role in winning labor protections for workers. Furthermore, schools must provide students with an introduction to state-approved apprenticeship programs as an alternative career path.
In 2013, the legislature adopted Senate Bill 54 (“SB 54”), which required oil refineries to hire construction contractors that would commit to employing a “skilled and trained workforce,” as defined by the statute, and to hiring subcontractors that would also commit to employing a skilled and trained workforce.
On October 7, 2023, Governor Newsom signed Senate Bill 808 (“SB 808”) into law, which amends the California Health and Safety Code to require the California State University (“CSU”) Chancellor’s Office and each of the CSU system’s 23 campuses to make certain annual disclosures about sexual harassment reports on campus. Specifically, the system will be required to disclose the number of sexual harassment reports they receive each year, how many of those reports resulted in investigations, how long it took the investigations to commence and conclude, and how many investigations triggered hearings and appeals. These annual reports must be posted on the system website for the public to access.
On July 10, 2023, Governor Newsom signed Senate Bill 132 (“SB 132”). SB 132 extends California’s $330 million Film and Television Tax Credit program by five years. An important change in the law allows production companies receiving the tax credit to submit for a refund if the credit exceeds the company’s state tax liability.
Under existing law, California employers may seek a restraining order when one or more of their employees have suffered unlawful violence or a credible threat of violence connected to the workplace. Now, Senate Bill 428 (“SB 428”) enables employers to seek harassment-related restraining orders as well.
For decades, California’s farmworkers could only gain union recognition through on-site elections. Last year, Governor Newsom signed a law allowing farmworkers to form a union through mail-in ballot elections or through card-check agreements. But he did so on the condition that the United Farm Workers and California Labor Federation agree to roll back the mail-in ballot option.
California law already says that noncompete agreements in an employment contract are void. But some employers put noncompetes in their contracts anyway. Employers know that a noncompete agreement might coax workers to stay in their jobs—even though it has no legal effect. It’s a misleading and unfair way to do business.
When is the action of one employee protected, concerted activity? The National Labor Relations Board answered this question in Miller Plastic Products, Inc. 372 NLRB No. 134 (Aug. 25, 2023) by returning to the totality of the circumstances test for determining whether an employee acting on their own is engaged in protected, concerted activity.
ExxonMobil Research & Engineering Company, Inc., 372 NLRB No. 138 (Aug. 25, 2023) arises out of bargaining a successor collective bargaining agreement (“CBA”) between ExxonMobil (“Exxon”) and the Independent Laboratory Employees Union. Prior to the start of negotiations, Exxon subcontracted out bargaining unit work, changed the process for approval of paid time off (“PTO”) requests for union-represented employees, offered 8 weeks of paid parental leave to all non-union employees, and unilaterally changed performance evaluation methods for union-represented employees. The Union filed unfair labor practices alleging numerous violations, including that Exxon engaged in overall bad faith bargaining.
The Board recently issued a decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying what needs to be proven to show that an employee was disciplined on account of union or protected concerted activity.
On August 26, 2023, the National Labor Relations Board (“NLRB”) issued American Federation for Children, Inc., 372 NLRB No. 137 (2023) restoring protections for employees who show support for nonemployees, including unpaid interns working alongside them.
In Hood River Distillers, 372 NLRB No. 126 (2023) the National Labor Relations Board retroactively applied a prior, more union-friendly standard for dues check off provisions.
Public Sector
Public employees in California have a right to display union insignia and slogans. In Teamsters Local 2010 v. Regents of the University of California, the Public Employment Relations Board (“PERB”) held this right encompasses the display of Union magnets and stickers on employees’ assigned vehicles. PERB also held that a public employer trying to defend its policy restricting employee rights, must present concrete evidence of the special circumstances it claims warrant the restriction. Mere speculation that the special circumstance the employer claims necessitates the restriction could exist is insufficient.
Assembly Bill (“AB”) 1457 will ensure that the important job of determining eligibility for numerous state and federal benefits will be performed by Eligibility Workers who are public sector merit system or civil service system employees.
On October 7, 2023, Governor Newsom announced that he signed the Legislature Employer-Employee Relations Act into law (Assembly Bill (“AB”) 1). The Act permits employees of the Legislature to unionize and collectively bargain with their employers. These employers are the Assembly Committee on Rules and the Senate Committee on Rules.
On October 7, 2023 Governor Newsom signed legislation designed to be the first step toward guaranteeing a proper staff-to-student ratio among California’s classified school employees. Classified employees are those who are not in positions requiring certification, such as teacher aides, secretaries, bus drivers, and school security officers. AB 1273 sets up a Classified Employee Staffing Ratio Workgroup that will report back to lawmakers its recommendations for guidelines as to what amount of staffing is considered adequate among various groups of school support staff.
A new California law requires public transit employers to notify and bargain with unions before taking steps to acquire or deploy autonomous transit vehicle technology for public transit services that would eliminate job functions or jobs. By requiring written notice and bargaining before even preliminary steps are taken by the employer, this law provides unions with greater opportunity to protect their members from the potentially disruptive effects of autonomous vehicle technology.
California public sector agencies have increasingly relied on temporary workers to fill a wide range of duties that often entail identical or very similar work duties to those of permanent employees. In reality, these workers are not actually temporary, but may occupy these positions for many years—or indefinitely—without any promise of permanent employment. Labor advocates are concerned about public employers’ over-reliance on temporary workers, who are disproportionately women and people of color, because these workers are often paid lower wages, receive fewer benefits, and enjoy less job security. Reliance on temporary workers rather than permanent employees intensifies race and gender inequalities that already exist in the workplace.
The California Governor signed two bills affecting retired public school teachers: Senate Bill (“SB”) 432 and SB 765.
Currently, in California in the property services and long-term healthcare industries, an individual or business that contracts for services can be held jointly and severally liable for any unpaid wages (including interest) if a few requirements are met. First, that entity was provided notice of a proceeding or investigation by the Labor Commissioner. Second, the Labor Commissioner found the employer liable for unpaid wages. Third, some or all of those wages were for services performed under the service contract.
Alameda Health System (“AHS”) is responsible for providing indigent care within Alameda County. Currently, AHS is prohibited from entering into a contract with a person/entity that would replace services being provided by unionized physicians and surgeons who are employed by AHS, unless there is clear and convincing evidence that the needed medical care can only be delivered cost effectively by the other person/entity. However, this requirement was set to expire on January 1, 2024.
In a rare procedural posture, the Public Employment Relations Board (“PERB”), rather than an administrative law judge, issued a post-hearing decision in El Camino Healthcare District (Aug. 15, 2023) PERB Dec. No. 2868-M. WRR represented the charging party union in this case. The case involved the application of the single/joint employer test from County of Ventura (2018) PERB Dec. No. 2600-M.
In Stone v. Alameda Health System (2023) 88 Cal.App.5th 84 (review granted), Plaintiffs, a Medical Assistant and a Licensed Vocational Nurse employed by Alameda Health System (“AHS”), sued AHS alleging seven claims:
San Francisco public employees and their unions have won a major victory in their fight for power and dignity. The state Public Employment Relations Board (PERB) has ruled in City and County of San Francisco (2023) PERB Decision No. 2867-M that the city’s charter provisions that prohibit city workers from striking are void and unenforceable. Two unions challenged the charter provisions, Service Employees International Union Local 1021 ("SEIU Local 1021”) and International Federation of Professional and Technical Engineers Local 21, with WRR representing SEIU Local 1021 in this case from its inception.
Employee Benefits
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) went into effect on March 3, 2022. As an amendment to the Federal Arbitration Act (FAA), the legislation permits individuals alleging sexual assault and harassment to bypass forced arbitration under the FAA and pursue their claims in court. (9 USC § 402(a).)
The Mental Health Parity and Addiction Equity Act (MHPAEA) is a federal law that governs benefits provided by group health plans and health insurance issuers. Since its enactment in 2008, MHPAEA prohibits less favorable benefit limitations for mental health or substance use disorder benefits when compared to limitations on medical and surgical benefits. This law reflects the growing recognition that mental health is a key component of an individual’s overall health and well-being, as well as the fact that addiction is not a personality flaw but has medical components as well.
On September 27, 2023, Governor Newsom signed four bills into law aimed at protecting medical providers who perform abortions and gender-affirming services. The bills are anticipated to improve accessibility and affordability of services for all who need them. While these bills are focused on increasing protections for medical providers performing abortions and gender-affirming services, they confirm current access to healthcare for Californians and could have future impacts on employees’ health insurance.
The SECURE 2.0 Act of 2022, referred to herein as the Act, established new overpayment recovery rules. When a plan decides to recoup overpayments, the Act establishes limits on recovery amounts, recoupment methods, and the timing of recovery. Prior to the Act, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) required pension plan fiduciaries to recoup any plan overpayments mistakenly made to participants. The law provided only narrow circumstances in which fiduciaries were not required to do so. Pension funds would often have no choice but to require retirees to pay back these sometimes significant overpayments—received through no fault of the retiree—creating serious strain particularly because retirees often depend heavily on their pension for necessities.
On June 29, 2023, the Biden administration announced that the National Integrated Group pension plan will receive more than $887 million from the federal Pension Benefit Guaranty Corporation (known as the PBGC), guaranteeing benefits for thousands who work in or have retired from manufacturing jobs, including United Auto Workers retirees. The plan was expected to run out of money in 2034, forcing retirees to lose 15% of their benefits.
On April 10, 2023, President Biden signed H.J.Res.7, officially declaring the end of the COVID-19 National Emergency. Separately, May 11, 2023 marked the end of the Public Health Emergency declared by the Department of Health and Human Services (“HHS”). The end of these two emergency periods means big changes for employee benefit plans, which should ensure that plan documents and policies are up-to-date.
The Ninth Circuit Court of Appeals recently published a decision in Wit v. United Behavioral Health, 58 F.4th 1090 (2023), a case that could potentially lead to a significant change in ERISA law. In short, the courts are analyzing whether a healthcare administrator can enact more restrictive internal guidelines as to what is medically covered than “generally accepted standards of care.”
On January 11, 2023, the United States Department of Veterans Affairs (“VA”) proposed a rule that would waive copayments for eligible Native American and Alaska Native veterans. There will be a 30-day period for the public to provide comments on the VA’s proposed rule. After reviewing public comments, the VA will develop and publish a final rule.
On January 11, 2023, the United States Department of Veterans Affairs (“VA”) proposed a rule that would waive copayments for eligible Native American and Alaska Native veterans. There will be a 30-day period for the public to provide comments on the VA’s proposed rule. After reviewing public comments, the VA will develop and publish a final rule.
Studies report many transgender patients encounter discrimination and difficulty accessing health care. California responded with Senate Bill 923.
California passed Senate Bill 107, which aims to protect transgender youth and their families from bans against gender-affirming care, particular those arriving in California from out of state.
The Setting Every Community Up for Retirement Enhancement Act (SECURE Act) was signed into federal law in 2019. On March 29, 2022, the U.S. House of Representatives passed the Securing a Strong Retirement Act of 2022 (“SECURE 2.0”) by a vote of 414 to 5.
Workplace Immigration
Deferred Action for Childhood Arrivals (DACA) recipients, their families, and their communities remain in limbo after the U.S. District Court for the Southern District of Texas reaffirmed its previous determination against DACA. This decision is another disappointing step back for the valuable immigration program that permits certain immigrants brought to the United States as children to apply, on a case-by-case basis, for temporary work authorization and relief from deportation.
Immigrant workers, including undocumented workers, are protected by federal and California wage and hour laws regardless of their citizenship status. Like other workers, immigrant workers have the right to organize a union and collectively bargain with employers under the National Labor Relations Act (NLRA).
Immigrant workers, including undocumented workers, are protected by federal and California wage and hour laws regardless of their citizenship status. Like other workers, immigrant workers have the right to organize a union and collectively bargain with employers under the National Labor Relations Act (NLRA).
Good news for California’s immigrant workers. On July 5, 2018, a federal court in Sacramento issued its order denying the U.S.’s motion for preliminary injunction of three California laws aimed at protecting the community and its citizens.
As many are aware, the U.S. Supreme Court recently rejected the federal government’s attempt to get “early review” of a preliminary injunction that required U.S. Citizenship and Immigration Services (USCIS) to begin accepting renewal applications through the Deferred Action for Childhood Arrivals (DACA) program.
Recientes informes noticiosos indican que el Departamento de Seguridad Nacional (“DHS”, por sus siglas en inglés) está planeando llevar a cabo acciones de control de inmigración, posiblemente batidas o redadas a gran escala, en el Norte de California.
Recent news reports indicate that the Department of Homeland Security (“DHS”) is planning to conduct immigration enforcement actions, possibly larger scale sweeps or raids, in northern California.
The federal government announced the termination of Temporary Protected Status (“TPS”) for individuals from El Salvador and Haiti.
Temporary Protected Status (“TPS”) is a program run by the federal government providing for temporary legal status to immigrants from certain designated countries.
Governor Brown recently signed two bills protecting immigrants and immigrant workers in California.
On September 5, 2017, the U.S. Department of Homeland Security (“DHS”) issued a Memorandum ending Deferred Action for Childhood Arrivals (“DACA”). DACA protected about 800,000 young people from deportation and allowed these “dreamers” to live, work, study, and continue to contribute to their communities without fear of arrest and deportation.
All California workers are entitled to workers’ compensation benefits regardless of their legal status. California law provides that such protections, rights, and remedies under state law are available to all individuals who work in this state, regardless of immigration status.