UPDATES FOR CALIFORNIA EMPLOYERS – SEPTEMBER 2015

Reasonable Accommodation Constitutes Protected Activity.

In July 2015, Governor Brown signed AB 987, which provides that a request for reasonable accommodation on the basis of religion or disability constitutes protected activity under the Fair Employment and Housing Act (FEHA), regardless of whether the request for accommodation was granted. This new law reverses the California Court of Appeal’s prior holding in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635. In that case, the plaintiff sued his former employer, alleging that the employer had retaliated against him in violation of FEHA by terminating him after he requested medical leave. The Court of Appeal held that the plaintiff could not state a cause of action for retaliation under FEHA because his request for leave did not constitute protected activity. Under AB 987, a plaintiff may now proceed with a claim for wrongful retaliation under FEHA that arises out of a request for religious or disability accommodation.

Employers Should Review their Sick Leave Policy.

As of July 2015, AB 304 is effective. AB 304 amends California’s paid sick leave law in the following significant ways:

  • The new law applies to nearly all employers, regardless of size; there are no exceptions for small employers.
  • An eligible employee is one who has worked for the same employer within California for at least 30 days.
  • An employee can earn minimum paid sick leave by accruing 1 hour of sick leave for every 30 hours worked; accrued paid sick leave rolls over into the next year, but an employer may limit the use of paid sick leave to 3 days per year. Alternatively, an employer can provide 3 days of sick leave at the beginning of the year; no accrual is required.

California employers should examine their PTO and sick leave policies to ensure that they conform with the new law.

 

In Universal Protection Service LP v. Superior Court (2015) (Cal. Ct. App. Aug., 18, 2015) the plaintiff and others worked as security guards for Universal Protection Service, LP (“Universal”). The guards signed an employment arbitration agreement wherein they agreed to arbitrate all claims relating to their employment with Universal. The arbitration agreement itself did not expressly address class arbitration claims or the arbitrator’s authority to decide jurisdictional and arbitrability issues; however, the arbitration agreement did incorporate the rules of the American Arbitration Association (“AAA”). Under the AAA rules, an arbitrator has the power to rule on his or her own jurisdiction, and importantly, with respect to class claims, the arbitrator has the power to first determine whether the arbitration agreement permits an arbitration to proceed as a class claim. After the guards filed a class action against Universal, Universal asked the trial court to order individual arbitration. The trial court denied the motion and ordered the matter to arbitration so that the arbitrator could decide whether the class claim could be arbitrated. On appeal, the Court of Appeal affirmed, holding that the AAA rules as applied granted the arbitrator the authority to decide threshold jurisdictional issues, including whether class arbitration is permitted. Accordingly, even where an employment arbitration agreement itself is silent with regards to jurisdictional and/or arbitrability issues, if the agreement incorporates the AAA rules, the AAA rules will apply.

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