Latest News, Updates, and Issues Affecting Labor
Private Sector / Public Works
In a move that will directly impact workers across the nation, the current National Labor Relations Board (NLRB) in Amazon.com Services LLC, 373 NLRB No. 136, ended captive audience meetings. Captive audience meetings occur when an employer requires employees—under threat of discipline or discharge—to attend a meeting where the employer expresses its opposition to unionization. The NLRB held these meetings violate Section 8(a)(1) of the National Labor Relations Act because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 rights to freely decide whether, when, and how to participate in a debate concerning union representation, or refrain from doing so.
Under California AB 2499, employees can now take protected time off if they are a victim of a wide range of crimes. Prior to the passing of AB 2499, employers were prohibited from terminating, discriminating against, or retaliating against workers because of a worker’s status as a victim of crime or abuse. This included protection for the worker for taking time off to appear as a witness in court for such crime or abuse.
California enacted AB 2123 to prevent barriers that inhibited or deterred eligible recipients from applying for and receiving Paid Family Leave (“PFL”).
An administrative agency is a governmental body that creates and enforces rules and regulations for specific areas of law. The National Labor Relations Board (NLRB), Environmental Protection Agency (EPA), Food and Drug Administration (FDA), Department of Homeland Security (DHS) and Occupational Safety and Health Administration (OSHA) are all examples of federal administrative agencies. For over forty years, federal courts have deferred to administrative agency interpretations of the laws these agencies enforce. This deference recognized that there can be multiple interpretations of the same statutory language and that the agencies are the experts in enforcing the laws within their jurisdictions. This was called “Chevron deference” after the 1984 Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
California passed AB 2319, which amends the California Dignity in Pregnancy and Childbirth Act (CDPCA) and aims to reduce the disproportionate maternal mortality rate of Black women and other pregnant persons of color. The law further recognizes all birthing people, including nonbinary persons and transgender persons.
Last year, we covered a truly historic piece of a legislation: SB 525, California’s first-in-the-nation $25 minimum wage for healthcare workers. As a refresher, this law raised the minimum wage for over 400,000 workers who provide direct patient care or support services at large hospitals, dialysis clinics, community clinics, and various other healthcare institutions.
SB 963, signed into law by Governor Newsom this year, requires hospital emergency rooms to implement policies and procedures which encourage patients to identify themselves as victims of domestic violence or human trafficking. The goal of the bill is to encourage victims to participate in a prompt, voluntary, and confidential interview by medical personnel, after which the hospital can provide the patient with relevant resources, such as victims’ services.
AB 2975 enhances safety standards in California hospitals by mandating increased protections for health care workers and facility personnel. By March 1, 2027, hospitals are required to install automatic weapons detection devices at three locations: the main public entrance, the entrance to the emergency department and at the entrance to labor and delivery if it is separate. By prioritizing the well-being of healthcare workers through clear, enforceable standards, AB 2975 affirms the right of healthcare workers to a safe and secure workplace.
New law SB 1300 now requires California hospitals, 120 days prior to closing either supplemental inpatient psychiatric or maternity services, to provide public notice that includes specified information.
SB 988 establishes some minimum requirements for independent contracts that already apply to employees. Existing California law provides a 3-part test, commonly known as the “ABC” test, to determine if workers are employees or independent contractors. Independent contractors receive significantly fewer legal protections compared to workers who qualify as employees under California and federal law. Independent contractors broadly do not receive the protections of the California Labor Code, the Fair Labor Standards Act and other statutes, such as minimum wage, overtime, and other protections and minimum standards.
In June 2024, the California Legislature passed SB 92 and AB 2288, which make significant reforms to PAGA for the first time since it was enacted in 2004. These reforms apply to cases filed on or after June 19, 2024.
AB 1815 amends the definition of race to remove the term “historically” from the CROWN (Creating a Respectful and Open World for Natural Hair) Act and Unruh Civil Rights Act. The bill also amends existing law to include braids, locs, and twists in the definition of “protective hairstyles.” Historically, Black people were restricted from wearing their locs, braids, and twists in the workplace, at school, in the military, and in sports leagues. Although the CROWN Act already addresses hair discrimination, this amendment will expand the hairstyles and textures that are protected. Changing these definitions makes employers change their policies on appearance and dress code and makes workplaces more inclusive.
Previous law created the California Reparations Task Force, and the State of California received recommendations from this Task Force to reconcile the atrocities that African Americans faced during and after slavery. AB 3089 now provides an apology on behalf of the entire State of California. Under this law, the Department of General Services and the Joint Rules Committee will install and maintain a plaque memorializing this apology. The plaque will be installed and maintained in the State Capitol Building.
Cal/OSHA regulates employee safety at places of employment. Historically, household domestic services were excluded from the definition of a “place of employment” and therefore Cal/OSHA’s jurisdiction. SB 1350 removes this exemption.
Under SB 1100, California employers are now prohibited from requiring a driver’s license in job advertisements, postings, applications, and similar employment material. There is an exception to this new law when the employer satisfies two conditions:
Existing law governs when a public entity must get an enforceable commitment that a contractor will use a skilled and trained workforce to complete a contract or project. The current definition of a “skilled and trained workforce” means that at least 60% of the skilled journeypersons employed to perform work on the contract—by every contractor and each of its subcontractors at every tier—are graduates of an apprenticeship program for the applicable occupation, except for specified occupations. The contractor, or other applicable entity, must currently provide the public entity a report on a monthly basis demonstrating its compliance with these requirements.
California requires incarcerated people to work, as directed by Department of Corrections and Rehabilitation rules. The Legislature passed several bills related to prison labor in its recent session.
Under existing law, employers on public works projects must pay workers not less than the general prevailing rate of per diem wages as determined by the state Director of Industrial Relations. “Public works” includes construction, alteration, demolition, installation or repair work done under contract and paid for using public funds.
Governor Newsom signed AB 1810 into law, which expands access to menstrual hygiene products for incarcerated people. Previously, individuals incarcerated or confined in state prisons, local detention facilities, and state and local juvenile facilities had the right to access, be allowed to use, and continue to use materials necessary for personal hygiene with regard to their menstrual cycle and reproductive system, including, but not limited to, sanitary pads and tampons. However, that right was only upon request. AB 1810 establishes that those facilities must provide ready access to those menstrual products without individuals needing to affirmatively request them.
In 2014, SB 270 banned sales of certain single-use plastic carryout bags, which unintentionally caused the proliferation of bags made of thicker plastic film, which were technically considered reusable or recyclable but didn’t actually decrease plastic use.
Existing law regulates third-party food delivery platforms that transport ready-to-eat foods. A “food delivery platform” includes any online business that acts as an intermediary between consumers and multiple food facilities such as Uber Eats and Door Dash. Existing law already requires these food delivery platforms to: (1) pay the entirety of any tip for a delivery order to the person delivering the food or beverage, and (2) disclose to the customer an accurate cost breakdown of each transaction.
A recent decision from the Ninth Circuit Hartstein v. Hyatt Corporation (9th Cir. 2023) 82 F.4th 825 strengthened worker protections when employers enact furloughs or temporary layoffs. When an employer furloughs or lays off employees and does not provide a specific return-to-work date within the same pay period, the employees must be paid all earned wages, including accrued vacation time, immediately.
In a recent memorandum from General Counsel Jennifer Abruzzo, GC 24-04, the National Labor Relations Board (“NLRB”) signaled that it will aggressively pursue full make-whole remedies for all employees harmed by an employer’s unlawful conduct. Under this approach, the NLRB will not only require employers to remove unlawful work rules and contract terms but will also seek to address the lingering effects of the rule or term in the workplace. While the NLRB has traditionally taken this approach in unilateral change and retaliation cases, Abruzzo’s memo urges the NLRB to make affected employees whole in all contexts and represents a significant development in federal labor law enforcement.
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.
Public Sector
What employers are covered by AB 2561:
AB 2561 applies to employers covered by the Meyers-Milias-Brown Act (i.e., cities, counties, and special districts such as utility districts).
California Assembly Bill 2889 prevents the City of Los Angeles Employee Relations Board (ERB) and the Los Angeles County Employee Relations Commission (ERCOM) from awarding strike-preparation expenses and other damages due to an unlawful strike. It grants the Public Employment Relations Board (PERB) exclusive initial jurisdiction over requests to block certain employee activities, including strikes, in Los Angeles cases.
Since 2007 California laws have prohibited discrimination against public school students and employees that is based, among other things, on sexual orientation. In 2024, the Legislature passed AB 1955, which added several sections to the Education Code by enacting the SAFETY Act, which is an acronym for Support Academic Futures and Education for Today’s Youth. It is intended to protect students from being “outed” for being gay, lesbian, bisexual, transgender, queer or questioning.
AB 1941 amends the Meyers-Milias-Brown to authorize unions to charge certain categories of peace officers who are non-dues-paying bargaining unit members for the “reasonable cost” of representing them. This new section of the MMBA only applies in scenarios where the union does not have exclusive access to the process (i.e., in the public sector there are many types of administrative hearings, disciplinary appeal proceedings, grievance and/or arbitration procedures that allow an employee to pursue a grievance all the way to arbitration with or without the approval or involvement of the union).
In an April 2024 decision, the Public Employment Relations Board (“PERB”) found the County of Santa Clara violated the Meyers-Milias-Brown Act when it refused to meet and confer before heightening the credentialing requirements to work in the County’s hospital system. PERB’s ruling illustrates when an employer has a duty to bargain over the decision and effects of a change in working conditions.
The California Constitution’s merit principle protects civil service employees from politically partisan mistreatment or other arbitrary actions. If a state employee believes she faced discipline or discharge in violation of the merit principle, she may appeal that decision to the State Personnel Board (SPB). Public employees in California also have collective bargaining rights and the right to engage in union or other protected concerted activity. If an employee believes she has been disciplined or discharged because she exercised those rights, she and/or her union would go to the Public Employment Relations Board (PERB) for relief.
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.
Employee Benefits
Under the Mental Health Parity and Addiction Equity Act enacted in 2008, there must be “parity” between the benefits a group health plan provides for mental health and substance use disorder treatment and the benefits it provides for other medical and surgical treatment. But what “parity” means, and how a plan beneficiary can allege a violation of the Act, has been an open question.
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.
Workplace Immigration
AB 1888 establishes a Labor Trafficking Unit within California’s Department of Justice. The goal of this new law is to investigate and prosecute those who force or coerce vulnerable people into jobs with little or no pay, often in poor and unsafe working conditions. Labor trafficking targets workers by making them vulnerable to threats regarding their immigration status, threats to their families’ safety, and threats involving their wages.
The U visa was created in 2000 through the Victims of Trafficking and Violence Protection Act to combat human trafficking and to encourage immigrants to report crimes. It is similar to the T visa, which specifically grants immigrants who have experienced a severe form of trafficking (either sex or labor trafficking) temporary authorization to remain and work in the U.S. Compared to the T visa, the U visa provides a broader form of protection for immigrants, since it is not just limited to victims of severe trafficking.
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.
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.
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.
Dreamers once again face an uncertain future. This time around, their anxiety and uncertainty comes as a result of President Trump’s September 5, 2017 decision to scrap the DACA program established in 2012 by President Barack Obama.