UPDATES FOR CALIFORNIA EMPLOYERS – OCTOBER 2015

Arbitration of Employment Claims.

The California legislature recently passed AB 465, which is a bill that prohibits employers from requiring employees to agree to arbitrate employment claims as a condition of their employment.  Other provisions of AB 465 include: 1) requiring employers to prove that arbitration was entered into voluntarily; 2) prohibiting employers from threatening, retaliating against, and/or discriminating against any person for refusing to sign an arbitration agreement; and 3) providing recovery of attorneys’ fees by successful employees who invalidate arbitration agreements.  AB 465 is currently pending approval from Governor Jerry Brown.  If approved, it will go into effect on January 1, 2016.

Do You Have a Common-Law Employment Relationship?

The National Labor Relations Board (“NLRB”) has recently issued a decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015).  The Board announced a new standard to determine whether multiple entities are “joint employers” of a single workforce.  In its cases, the Board will now inquire whether there is a common-law employment relationship with the employees in question, including the “right to control” the employees.  If this common-law employment relationship exists, then the Board will inquire into whether the putative joint employer possesses enough control over the employees’ essential terms and conditions of employment to permit “meaningful collective bargaining.”  Although the NLRB deals primarily with cases relating to union activity, this decision could have an impact on non-union cases as well.  The standards for transferring liability between separate companies in other contexts, such as discrimination, under the “joint employer doctrine” are influenced by NLRB decisions.

Age Discrimination at the Border.

In France v. Johnson, 8/5/2015, 13-15534 U.S. 9th Circuit, plaintiff worked as a border control agent for the United States Department of Homeland Security (“DHS”).  When plaintiff was 54 years old, he applied for another job within the DHS, but was not selected.  Instead, other applicants ranging in age from 44 to 48 were selected.  Plaintiff sued the DHS, alleging that the decision to not promote him constituted age discrimination in violation of the Age Discrimination in Employment Act and arguing, in part, that the age difference between himself and those who were chosen for the job at issue was substantial.  DHS filed a motion for summary judgment, which was granted.  On appeal, the Ninth Circuit Court of Appeal reversed the trial court’s decision.  However, the Ninth Circuit Court of Appeal found that the ten year age difference between plaintiff and those who were chosen for the job at issue created a rebuttable presumption that the age difference was not substantial for purposes of plaintiff’s claims.