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Tuesday
Sep202016

Employers' Legislative Update: Governor Brown Signs New Bills

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

Tis the season for new laws in California and not all of it brings good tidings and cheer for employers.

Recently, Governor Jerry Brown signed several state Assembly and Senate Bills affecting those who employ domestic staff; agricultural workers; teachers; etc. Most companies with employees (or individuals with domestic staff) in California will be affected.

Here’s the current employment law update:

SB 1015 – Domestic Work Employees: Labor Standards

Previously, employees that worked as personal attendants were exempt from overtime and other wage and hour rules.

On January 1, 2014 the Domestic Worker Bill of Rights went into effect and provided that a “domestic work employee who is a personal attendant” is eligible for overtime at one and one-half times the employee’s regular rate of pay if the employee works more than nine hours per day or more than 45 hours per week. The Domestic Worker Bill of Rights was to be in effect until January 1, 2017 – at which time the legislature will decide whether to renew it.

SB 1015 deletes the repeal date, which means that the Domestic Worker Bill of Rights will remain in effect indefinitely.  

AB 1066 – Agricultural Workers: Wage, Hours, and Working Conditions

Federal, state and local laws require employers to comply with wage and hour rules and pay non-exempt employees overtime and minimum wage – and to comply with meal and rest break rules.

Currently, Wage Order 14 sets different standards for overtime for agricultural employees (e.g., 1.5 times the employee’s regular rate of pay for hours worked beyond 10 hours per day and for the first eight hours or the 7th consecutive day of work; two times the employee’s regular rate of pay for all hours worked over eight on the 7th consecutive day.)

AB 1066 added sections 857 through 864 to the Labor Code which creates new overtime standards for agricultural employees (“under the same standards as millions of other Californians”), on a gradual basis: 

The Governor is authorized to suspend a scheduled “phase-in” only if the Governor suspends a scheduled minimum wage increase (SB 3, signed in April). If suspension occurs, all phase-in dates will be postponed by an additional year.

AB 2337 – New Notice Requirement to Employees 

Current law (Labor Code § 230.1) prohibits employers with 25 or more employees from retaliating or discharging employees who are victims of domestic violence, sexual assault, or stalking, for requesting time off to: 

  • Seek medical treatment;

  • Obtain services from a domestic violence shelter or program; or

  • Obtain counseling or participate in safety planning.

This act requires employers to give written notice to new employees regarding the right to take protected time off for the purposes stated above. The notice must also be provided to current employees upon request.

The Labor Commissioner will develop a form that employers may use to comply with this notice requirement. The notice will be available before July 1, 2017. Employers are not required to comply with notice requirement until the Labor Commissioner posts the form on the DLSE website.

AB 2230 – New OT Exemption Requirements for Certain Teachers 

Current law provides that individuals employed as teachers at private elementary or secondary academic institutions are exempt from overtime payment requirements if, among others, they earn no less than two times the state minimum wage for full time employment.

This bill will change the salary requirement for the exemption. As of July 1, 2017, an individual employed as a teacher will be exempt if, among other criteria, the employee earns the greater of:

  1. No less than 100 percent of the lowest salary offered by any school district to a person in a position that requires a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver); OR

  2. No less than 70 percent of the lowest scheduled salary offered by the school district or county in which the private elementary or secondary institution is located, to a person who is in a position that requires the person to have a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver).

In effect, AB 2230 ties private school teaching salaries to that of public school teachers – establishing a wage floor that increases with the public sector.

 

Sue M. Bendavid and Tal Burnovski Yeyni are Employer Defense Attorneys at our Firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Sep162016

California Ballot 2016: Pros and Cons of Props 62-67

Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer

818.907.3299

 

 

This is part three of our ongoing series, California Ballot 2016, summarizing each of the 17 state-wide measures voters will encounter on the November ballot. Click these links: Props 51-56, or Props 57-61 to catch up on the other initiatives. We’ll tackle some of the measures for Los Angeles County in a later blog.

This time, we’re going to jump out of order and summarize Prop 62 and Prop 66 one after the other, as both have to do with California’s death penalty – and Props 65 and 67 both concern plastic bag use. 

Proposition 62: Justice That Works Act of 2016 

 

California Death PenaltyShould the California death penalty be repealed? If Prop 62 wins voter approval, maximum punishment for criminals will be life imprisonment (instead of execution) without parole; be applied retroactively for current death row inmates; require those serving life to work while in prison; and increase victim restitution moneys accrued from prisoner wages.

Who’s For Prop 62?

Voices supporting Proposition 62 claim the death penalty system is broken – the 13 prisoners executed in California since 1978 cost taxpayers an average of $384 million per inmate because of constitutionally guaranteed appeals and special accommodations, which add up to 18 times the cost of life sentences. Prop 62 could save California $150 million per year by doing away with the death penalty.

Some of the bigger names and organizations supporting Prop 62 include Jimmy and Rosalynn Carter, Bernie Sanders, some former district attorneys and judges, as well as the California Democratic Party, California National Association for Advancement of Colored People, and California’s Catholic bishops.

Who’s Against Prop 62?

A group of opponents of Prop 62 are also endorsing Prop 66 (more on that one shortly). The Mend, Don’t End, California’s Death Penalty coalition agrees that the system for capital punishment is broken, but cite justice for victims’ families as a key argument for keeping a death penalty.

Though the names aren’t as big as those supporting 62, there seem to be a lot more opponents listed (just going by endorsement pages on the respective websites). Some of the opponents of 62 include former state governor Pete Wilson; a whole host of district attorneys; sheriffs’ associations in Los Angeles, Orange County, Long Beach, Sacramento, San Diego, etc.; taxpayer associations and others. 

 

Proposition 66: Death Penalty Reform and Savings Act of 2016 

 

Prop 66 aims to overhaul the system of capital punishment in California rather than repeal it, by incorporating procedural changes in the appeals process; requiring criminal appellate attorneys to take on death penalty appeals cases (many currently don’t); and requiring death row inmates to pay restitution to victims’ families.

Who’s For Prop 66?

Again, the Mend, Don’t End group is a primary supporter of 66 (see opponents of 62 above). Several district attorneys have come out with opinion pieces supporting 66, including this one by Michael Hestrin of Riverside. They claim Proposition 66 will ensure appeals are heard within five years of sentencing because defendants will be assigned appellate counsel immediately, give victim’s families much-needed closure faster, and that the potential $150 million annual savings to taxpayers is a mere drop in the state budget bucket.

Mark Peterson, D.A. for Contra Costa County, says the current appellate process for death row inmates could run 25 years because of frivolous delay tactics, which the reform measure will eliminate. This will result in hundreds of millions in savings.

Who’s Against Prop 66?

The No on 66 group say this initiative is poorly written, and based on capital punishment laws in Texas where innocent people were mistakenly put to death. Additionally, forcing appellate criminal defense counsel to take death row appeals cases will lead to further miscarriages of justice as many of these attorneys will be unqualified to fairly represent inmates. It doesn’t end with appellate attorneys – prisoners sentenced to death also need habeas corpus attorneys to examine the lawfulness of arrest and imprisonment in the first place – thus increasing the costs of putting the convicted on death row.

Opponents to 66 include several state organizations: Democratic and Libertarian parties, Federation of Teachers, American Civil Liberties Union, Academy of Appellate Lawyers, Catholic Conference, etc. Various prominent elected officials and individuals also oppose 66.

 

Proposition 63: Safety for All Act of 2016 

 

California Ammo and FirearmsInitially proposed by Lieutenant Governor Gavin Newsom, Prop 63 would prohibit the possession of large-capacity ammunition magazines and would treat ammunition sales like gun sales. Prop 63 would:

  • Subject persons buying ammunition to background checks and a Department of Justice (DOJ) approval process;
  • Require vendors to obtain licenses to sell ammo and report sales to the DOJ;
  • Require reporting to law enforcement when firearms and ammo are lost or stolen – this applies to individuals as well as vendors;
  • Require certain criminals to relinquish guns, using clear-cut procedures to do so;
  • Require better reporting between the DOJ and the National Instant Criminal Background Check System

Note that some of the requirements and bans above are already written into California law. Governor Jerry Brown signed several gun bills in July – not long after the San Bernardino office party shootings in December and the Orlando nightclub shootings in June.

Who’s For Prop 63?

Those who support Safety for All say more than 33,000 people are killed because of gun violence in America, annually. The initiative closes some loopholes by making criminals prove they turned in their firearms; and that it addresses many firearm and ammunition concerns not related to the legislation passed in July. (See the Prop 63 Myths vs. Facts sheet for more info.) Prop 63 supporters also claim background checks have historically blocked 2.5 million potentially dangerous individuals from buying firearms.

Prop 63 has endorsements from U.S. Senators Dianne Feinstein and Barbara Boxer, California Secretary of State Alex Padilla, the California Democratic Party, Amnesty International, California Federation of Teachers, and others.

Who’s Against Prop 63?

Opponents to the measure claim there will be an extra fee for ammunition purchase background checks, out-of-state and mail order purchases of bullets will be banned, and private sales will be criminalized. Prop 63 opponents also say those who own large magazines will need to find buyers out of state or turn the magazines in to law enforcement. Additionally, the measure could force vendors to go out of business. 

The Coalition for More Civil Liberties, a/k/a/ the California Rifle & Pistol Association, is spearheading the campaign against Prop 63. They are also supported by the National Rifle Association, the Firearms Policy Coalition, Concealed Nation, and others.

 

Proposition 64:  Control, Regulate and Tax Adult Use of Marijuana Act (AUMA)

 

Marijuana in CaliforniaShould Californians 21 and older be allowed to use marijuana recreationally? This initiative:

  • Exempts medical marijuana from taxes;
  • Imposes a 15 percent state tax on recreational marijuana;
  • Imposes a cultivation tax of $9.25 per ounce for flowers, and $2.75 per ounce for leaves;
  • Allows for additional local taxes;
  • Prevents large-scale businesses from cashing in on the crop for five years;
  • Strictly regulates marijuana marketing; and
  • Allows for resentencing or expunging records of those convicted of prior marijuana-related crimes.

In 2013, Governor Brown signed a law to legalize the growing of industrial hemp, but only if the federal government authorizes states to do so. Production has been banned by the feds since 1957 because it contains low levels (relative to marijuana) of tetrahydrocannabinol which is the chemical that induces the “high”.

Because of the federal ban, the U.S. imports hemp for fiber, food and fuel products. A handful of other states have already legalized cultivation. Prop 64 removes the condition re federal permission imposed in 2013.

Who’s for Prop 64?

The Californians for Responsible Marijuana Reform claim the state tax alone could generate $1 billion each year for California, and that both state and local governments will save $100 million by not having to pursue legal action against most marijuana offenders (the main exception being those driving while impaired). Most of the revenue generated will go to youth substance abuse programs. Additionally, legalizing industrial hemp production will generate additional millions and create jobs.

Support for AUMA comes from the American Civil Liberties Union of California, the state’s Conference of the NAACP, the California Medical Association, Senator Bernie Sanders, Lieutenant Governor Gavin Newsom, other elected officials on both sides of the aisle and certain members of law enforcement.

Who’s Against Prop 64?

One group against AUMA includes Stop Pot 2016, whch says Prop 64 has a loophole that will allow meth and heroin dealers to become licensed to sell marijuana; the drug is highly dangerous to people who have not yet reached full physical (brain) development; and that only a very few can actually benefit from marijuana use. An LA Times editorial claims Proposition 64 is merely a tool to find funding to help fund homelessness programs, and that the revenues via heavy taxes will just encourage consumers to buy weed on the black market.

Opponents of Prop 64 include U.S. Senator Dianne Feinstein; state senators Joel Anderson, Cathleen Galgiani and Jim Nielsen; the California Hospital Association, California Associations of Highway Patrolmen and Police Chiefs; and other members of crime fighting, political, religious and medical communities.

 

Proposition 65: Environmental Fee Protection Act 

 

Plastic Bag ProfitsProps 65 and 67 can get confusing. California banned single, plastic bag use two years ago, but a referendum put that ban on hold, unless you happen to live in a municipality where that ban is enforced.

Prop 65 would allocate funds generated from the sale of carry-out bags to the Wildlife Conservation Board (WCB). Retailers who sell bags would deposit the proceeds to the fund, potentially tens of millions of dollars, to support specific environmental programs.

Who’s for Prop 65?

Certain groups supporting this initiative claim retailers make a $300 million annual profit on the reusable bags they sell to consumers, and that these profits should be redirected to beach cleanup, litter removal, etc. Since the single-use plastic bag has been banned in most cities, supporters argue that any profits from consumers forced to buy bags should go to environmental causes, particularly if Prop 67 (see below) is passed.

This initiative is actually supported by bag manufacturers, according to KCET, but…a San Francisco Chronicle opinion piece claims bag manufacturers are attempting to confuse voters by putting both Prop 65 and Prop 67 on the state ballot. Prop 65 also seems to be supported by the California Taxpayer Protection Committee and the California Senior Advocates League.

Who’s Against Prop 65?

California’s grocer association claims the 10 cent per single-use bag charge barely covers their costs of providing the bags, according to the Chronicle piece linked above. Additionally, opponents of Prop 65 say the better choice is to vote yes on Prop 67 instead.

 

Proposition 67: Referendum to Overturn Ban on Single–Use Plastic Bags 

 

Plastic Bag BanProp 67 seeks to ratify Senate Bill 270 approved in 2014, banning retailers from providing single-use carryout bags for free, though they would be allowed for perishable items like meat, dairy and produce. But Senate Bill 270 was overturned by referendum in 2015 – effectively “bagging” the plastic bag ban until the upcoming election in November. Prop 67 seeks to reinstate the 2014 ban throughout California (remember that certain cities currently enforce a bag ban).

Who’s for Prop 67?

Groups like the Sierra Club and Heal the Bay are endorsing Proposition 67, stating that less single-bags mean less pollution. These groups want to ban single-use bags for good, which are hardly ever recycled (less than 5 percent), poison the ecosystem, and add up to extra costs for consumers.

In addition to high-profile environmental groups, Prop 67 is endorsed by the Northern California Recycling Association.

Who’s Against Prop 67?

Fight the Plastic Bag Ban says it is a grassroots effort not associated with bag manufacturers. The group claims the referendum to challenge 2014’s SB 270 was endorsed by voters, pushed through via petitions and signatures; and that approving the ban would create inequality between consumers – those exempt from purchasing bags and those who must subsidize the cost of bags for the exempt shoppers. Additionally, municipalities could continue to ban single-use bags at the local level.

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

 

 

Wednesday
Aug312016

California Ballot 2016: Pros and Cons of Props 57-61

Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer
818.907.3299

 

This is the second post in our California Ballot 2016 series – providing the “nutshell” versions of each of the 17 state-wide measures voters must decide in November. Please refer to our first post in the series: Props 51-56, for information about those measures.

California Election State Measures

 

Proposition 57: The Public Safety and Rehabilitation Act

 

Individuals convicted of nonviolent felonies may be eligible for parole after completing sentence for the primary offense under this initiative. Additionally, the Department of Corrections and Rehabilitation will be allowed to award credits for good behavior (including rehab and education), and juvenile court judges (instead of district attorneys) will be able to determine if persons aged 14-17 should be prosecuted and sentenced as adults under specific conditions. 

This measure is highly controversial. 

Who’s Voting Yes on Prop 57?

Supporters for Governor Jerry Brown’s initiative complain that about 10 percent of the state’s general fund is spent on jails, and that a court-ordered prison population cap will mean an arbitrary release of inmates, which will be dangerous. California’s money will be better spent on rehabilitating non-violent prisoners; and judges will more carefully review juvenile history and the circumstances of the crime before deciding to try a youth as an adult. 

The Yes on 57 initiative is endorsed by the California Democratic Party, State Law Enforcement Association, Catholic Bishops of California, Chief Probation Officers of California, among others.

Who’s Voting No on Prop 57?

The Stop Early Release of Violent Criminals (SERVC) coalition is comprised of various district attorneys throughout California, police officers’ associations, county sheriffs and political officials.

SERVC claims Prop 57 will allow certain dangerous criminals, including those convicted of rape, human trafficking, kidnappings, drive-by-shootings, and others, to be released from prison early; disregards sentencing by judges; and overturns aspects of previous voter-approved laws (such as the Victims’ Bill of Rights, Marsy’s Law, etc.) made to keep the public safer.

 

Proposition 58: English Language Education 

 

As of 1998, California teachers were required to teach Limited English Proficient (LEP) students predominantly in English – bilingual classes were kept to a minimum. Proposition 58 seeks to repeal provisions of the 1998 law (then numbered Prop 227) and require schools to provide structured English language immersion programs.

Who’s Voting Yes on Prop 58?

Supporters of Prop 58 say the old law is too restrictive. Under Prop 58, school districts will be required to identify a plan for teaching English proficiency to LEP students as rapidly as possible, to provide structured immersion programs, and to allow educators, parents and community members to offer input. Schools will be able to adopt other teaching methods as needed. Additionally, the students who are already proficient in English will have increased opportunity to learn a second language.

Those endorsing Prop 58 include the Asian Law Alliance; California Latino School Boards Association; the California Democratic Party, Labor Federation, Teachers Association, and SEIU California, among others.

Who’s Voting No on Prop 58?

The primary opponent of Prop 58 at this time seems to be Ron Unz, the author of 1998’s Prop 227, which he claims was judged an “enormous educational triumph by nearly all observers.”

A Los Angeles Times opinion piece seems to argue both sides of the coin. Some of the warnings re Prop 58 include:

  • Expense of bilingual education programs;
  • California’s lack of qualified bilingual teachers;
  • Dual immersion programs have proven track records for success, but the participating teachers, students and parents are highly motivated.

 

Proposition 59: Overturn Citizens United Act

 

Prop 59 is an advisory question. It doesn’t change laws in any way, or overrule Supreme Court decisions – it primarily serves as a barometer of public feeling.

In 2010, the U.S. Supreme Court held in Citizens United v. the Federal Election Commission that the government cannot restrict political expenditures by nonprofits, as such actions would violate freedom of speech. (Citizens United is a non-profit Political Action Committee (PAC) that promotes corporate interests, socially conservative ideals, and political candidates upholding those same beliefs.)

The proposed 2016 Overturn Citizens United Act seeks to live up to its name, in philosophy. Prop 59 asks voters to show support for: 

  • Requiring state officials to propose and ratify an amendment to the federal Constitution overturning the 2010 court decision and similar precedents;
  • Allowing regulation of campaign contributions;
  • Ensuring all citizens are able to communicate their views to each other regardless of wealth; and
  • Ensuring corporations do not have the constitutional rights of human beings. 

Who’s Voting Yes on Prop 59?

The Money Out Voters In (MOVI) coalition claims our Congressional leaders spend 30-70 percent of their time fundraising rather than serving the people; that in 2010 about 93 percent of income gains went to the top one percent (in terms of wealth) of the population; and that after the U.S. Supreme Court decision for Citizens United v. FEC, corporate spending for election ads skyrocketed to 1,139 percent.

Support for Prop 59 comes from the California Democratic Party, Consumer Watchdog, California Labor Federation and a host of elected officials in the state senate and assembly. (This movement is not limited to California – organizations across the nation are calling to Overturn Citizens United.)

Who’s Voting No on Prop 59?

In 2014 the Howard Jarvis Taxpayers Association filed a lawsuit to strike the Overturn Citizens United measure (then called Prop 49) from the ballot. They succeeded, but the California Supreme Court reversed in January with a 6-1 ruling. The primary argument seems to be that this initiative just crowds the ballot, and is a waste of voter time. 

 

Proposition 60: California Safer Sex in the Adult Film Industry 

 

This is the initiative that keeps on giving – the legislative gift that keeps on spreading. In 2012, Measure B started as a Los Angeles City measure, but was later put on the county ballot. When it passed, adult film production companies threatened to leave, and one porn company filed a federal suit to overturn it.

The state’s Prop 60 for 2016 voters is similar to Los Angeles County’s Measure B. It will: 

  • Require performers to use condoms when sexual intercourse is filmed;
  • Require porn producers to foot the bill for vaccinations and testing for sexually transmitted infections (STIs), obtain California health licenses; and post condom use requirements on location;
  • Impose liability on those with monetary interests in an adult film, including the producers, performers, and talent agents who refer their clients to producers who don’t comply to the condom law;
  • Specify that anyone involved in the adult film or living in California can enforce the law, if passed. 

Who’s Voting Yes on Prop 60?

Proposition 60 supporters say that condoms have already been required for pornographic films in California since 1993 – Prop 60 will just improve enforcement. Since 2004, over two dozen adult film actors and actresses were infected with HIV on the job, which costs California taxpayers millions of dollars in care. Additionally, the threats of adult film producers to leave the state are not reliable:  California and New Hampshire are the only states where the adult film industry is legal, and Nevada, which legalizes prostitution in some areas, also has condom laws.

Prop 60 endorsers include the Aids Healthcare Foundation, the American Sexual Health Association, the California State Association of Occupational Health Nurses, among others.

Who’s Voting No on Prop 60?

Opposition to Prop 60 is primarily headed by the Free Speech Coalition, which claims a new condom law will affect more than adult film studios, but also smaller business endeavors and hobbyists: individuals with cams, performer websites, and clips and content trades. Additionally, Prop 60 will open the door to private citizens wanting to sue anyone in the adult film industry; and that anyone involved in porn production, down to the crew members could be held liable in lawsuits.

A Mercury News editorial states Prop 60 is dangerous for another reason:  As written, the measure sets up the CEO of the AIDS Healthcare Foundation as a state porn “czar”, with seemingly unlimited powers. And a writer for The Advocate expresses another concern re Prop 60:  in the adult entertainment industry, many performers are also film producers and have their own, independent, adult websites. Under Prop 60 they too are liable to be sued by anyone, and thus have real names, addresses and other information provided to stalkers, vigilantes and the public in general.

 

Proposition 61: California Drug Price Relief Act

 

The aim is to ensure state agencies don’t pay more for prescription drugs than the Department of Veteran’s Affairs. Prop 61 would apply to any health program in which the California government pays for a drug, regardless of whether or not the state actually bought the drug directly from the drug maker or not. It gives the state the power to negotiate, and exempts drugs provided by programs funded through Medi-Cal (which already negotiates with the pharmaceuticals).

Who’s Voting Yes on 61?

Those who endorse Prop 61 claim the VA pays 40 percent less than Medicare Part D (the federal drug program for seniors) for medications because the VA has the power to negotiate with the pharmaceuticals. The savings to the state of California would total billions, which could be better used to fund other health programs. Supporters also claim the pharmaceuticals spend 19 times as much money on advertising than they do on research and development of new products – any arguments regarding fewer new cures are just a scare tactic.

This measure is endorsed by AARP California, the AIDS Healthcare Foundation, California Nurses Association, U.S. Senator Bernie Sanders, and various elected officials at the state, county and local levels.

Who’s Voting No on 61?

Most Californians would be excluded from the purported benefits, say the Prop 61 opposition. Additionally, armed forces veterans could be hurt by the measure, as the pharmaceutical discounts are given by drug makers in honor of military service – if the pharmaceuticals must apply the same discount to government agencies they may have to increase prices across the board, affecting not just veterans but all prescription drug buyers. Finally, the opponents complain the initiative is vague and red-tape laden.

Veteran’s organizations across the state are opposed, as well as the California Medical Association, California Psychiatric Association, the California Taxpayers Association, several labor associations, the California Chamber of Commerce, California NAACP, and others.

Next in our voting guide series: the death penalty; guns & ammo; marijuana; and plastic bags – Prop 62 through Prop 67.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

 

 

Tuesday
Aug302016

The Curious Case of Employment Arbitration Agreements

Lawyer for EmployersLawyer for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

Oh boy, what a year 2016 is shaping up to be! Employers faced some daunting changes to: Sick Leave, California Minimum Wage, the DOL final rule  re salary thresholds and now – class action waivers. We feel like doing a Liz Lemon style “12 month rap wrap up”. But unlike Avery Jessup in 30 Rock, reading some US Weeklies won’t resolve the situation. (If you don’t understand, go watch ”The Return of Avery Jessup”. It’s hilarious!) 

Class Action LawsuitMeanwhile, in the real world, we noticed a trend in California to limit the scope of employment arbitration agreements. Two years ago the California Supreme Court ruled that PAGA (Private Attorneys General Act) representative claim waivers in employment arbitration agreements are unenforceable (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348).

And last year the legislature attempted to pass AB-465 which would have prohibited employers from requiring employees to sign arbitration agreements as a condition of employment. Governor Brown however, vetoed the bill opining, in part, that “[A] blanket ban on mandatory arbitration agreements is a far-reaching approach...”

Last week the Ninth Circuit took part in the “arbitration debate” and held that Class Action Waivers in employment arbitration agreements are unenforceable. In Morris v. Ernst & Young LLP (9th Cir. 8/22/2016) No. 13-16599 plaintiffs brought a class action against the accounting firm Ernst & Young for misclassification,  FLSA (Fair Labor Standards Act) and California labor laws violations.

The professional services firm moved to compel arbitration pursuant to the arbitration agreements signed by plaintiffs, which contained a “concerted action waiver” requiring employees to pursue legal claims against E&Y exclusively through arbitration, and arbitrate only as individuals and in “separate proceedings.”  Plaintiffs argued the class action waiver was unenforceable as it violated the National Labor Relations Act (NLRA).

Section 7 of the NLRA guarantees the right of employees to engage in concerted activities. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the NLRA.

The Ninth Circuit in a majority decision agreed with plaintiffs and sided with the National Labor Relations Board (NLRB) position in Horton I, 357 NLRB No. 184, which held that an employer violates the NLRA “when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial.”

The Majority opined that a lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is “concerted activity” under Section 7 of the NLRA and reasoned that “an employer violates § 8 (...) by conditioning employment on signing a concerted action waiver.” [Emphasis added]. 

Employment ArbitrationWith this decision, the Ninth Circuit teamed up with the Seventh Circuit which recently held that a class action waiver in arbitration agreements was unenforceable as it violated employees’ rights under the NLRA. Other circuits (the Second, the Eighth and the Fifth) held to the contrary, validating class action waivers in employment arbitration agreements. Due to the circuit split, it is likely the matter will be taken up to the U.S. Supreme Court. 

It will be interesting to see how California courts would handle the matter (if at all). Notably, while the California Supreme Court prohibited PAGA waivers in employment arbitration agreements it rejected the argument that class action waivers are unlawful under the NLRA (Iskanian, supra, 59 Cal.4th at 372). “As the Fifth Circuit explained, neither the NLRA’s text nor its legislative history contains a congressional command prohibiting such waivers.” 

Thus, on its face, it appears the California Supreme Court position regarding the enforceability of class action waivers currently differs from the Ninth Circuit’s recent ruling.

To be continued . . .

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Aug242016

California Ballot 2016: Pros and Cons of Props 51-56

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

 

Californians must decide on 17 initiatives in the November election this year, and those are just the proposed measures of state-wide concern. Never mind the many local initiatives affecting counties and neighborhoods. The state props cover a range of topics like porn, drugs, guns, and death. Then there are the more tedious but still critical initiatives regarding bonds, legislative transparency, education, etc.

That’s a lot to think about, so we thought we’d break it down with a quick ballot reference guide. You’ll find a brief description of each measure, and then a who’s for, who’s against, and why section – with reference links for more information. (If you want the full text of each prop, click on the title for each measure.)

We begin the first segment in our 2016 Election Guide series: California Propositions 51-56, below. (Click Props 57-61 or Props 62- 67 to read about the others.)

Proposition 51: California Public Education Facilities Bond Initiative 

Should the state issue $9 billion in bonds for constructing or improving public schools educating students from Kindergarten through community college? The proposed funds generated would be allocated as follows: 

  • $3 billion to build new schools
  • $3 billion to modernize existing schools
  • $2 billion to buy, build, and improve community colleges
  • $500 million for charter schools
  • $500 million for technical education facilities 

Who’s Voting Yes on Prop 51?

Proponents of Prop 51 claim the state’s schools are deteriorating to the point of becoming unhealthy and unsafe for students; and that California’s last school bond initiated 10 years ago is now out of money. They also claim a current $2 billion backlog of improvement projects for seismic renovations, other safety concerns and technology needs.

Both the California Democratic and Republican parties, the California Chamber of Commerce, numerous school districts and state elected officials have endorsed this bill.

Who’s Voting No on Prop 51?

The opposition to Prop 51 describes its organization as a coalition of supporters of California taxpayers and educators opposed to sprawl and developer abuse. Their Facebook page posts links to more opposition from The Mercury News, East Bay Times, among others. Both articles cite Governor Jerry Brown who calls the referendum a “blunderbuss effort that promotes sprawl and squanders money that would be far better spent in low-income communities.”

The opponents also cite a need for better planning by local school districts, and for developers to foot their fair shares of the costs, noting that this initiative was bankrolled by the construction industry. 

Proposition 52: California Medi-Cal Hospital Reimbursement Initiative 

In order to receive federal Medicaid funding, the states must contribute their own money. California does this partly through the Hospital Quality Assurance Fee (HQAF) assessed on both public and private hospitals since 2009 – resulting in about $3 billion in federal funds disbursed annually for Medi-Cal programs. Some of the HQAF monies however, have been diverted into California’s general fund over the years. Prop 52 aims to make it harder for the state to divert hospital fees by requiring 2/3 voter approval before doing so.

Who’s Voting Yes on Prop 52?

The Yes on 52 Campaign says the hospital fee program is set to expire in 2018. The program generates about $3 billion in federal money for Medi-Cal (about $18 billion over seven years), which primarily benefits children, seniors and working families. Citing the Legislative Analyst’s Office, Yes on 52 further claims the program will save California $1.5 billion in costs for children’s health care by 2020, and increases support to local public hospitals. The state legislature will need voter approval to dip into the program.

Support for Prop 52 include the California Children’s Hospital Association, the California Association for Nurse Practitioners, both the Los Angeles and California Chambers of Commerce and various elected officials of both the Democratic and Republican parties.

Who’s Voting No on Prop 52?

Those who oppose Proposition 52 seem to be less organized but include the Service Employees International Union-United Healthcare Workers West, according to Kaiser Health News. The post cites SEIU-UHW’s director of governmental relations:

…SEIU-UHW supports the arrangement in principle but that the legislature is the most appropriate venue for deciding how to use the money raised. Lawmakers can respond to an evolving health care system, but if Californians vote directly on the hospital proposal, their decision would be harder to undo later…

Proposition 53: No Blank Checks Initiative 

Should bond projects that cost more than $2 billion require voter approval? Government projects of that amount or more that are billed to the state’s general fund already require voter approval – but revenue bonds do not. This initiative targets state over-spending by giving voters the right to greenlight or stop big ticket projects, and prevents large projects from being broken down into smaller jobs to get around voter approval requirements.

Who’s Voting Yes on Prop 53?

The Stop Blank Checks’ first priority is to keep elected officials from creating new debt to pay for multi-billion dollar projects, at the cost of California taxpayers. The Pro-Proposition 53 website says California’s debt exceeds $330 billion – the third worst of all the states. It also cites the cost of California’s high-speed bullet train: nearly $10 billion was approved by voters for the project, but costs are now estimated at $68 billion, which may be paid for through revenue bonds.

Dean and Joan Cortopassi – owners of large food and agri-businesses based in Central California, are the initiative’s primary supporters.

Who’s Voting No on Prop 53?

The opposition is much bigger than the support so far. The No on Prop 53 faction claims the initiative will take away local government’s ability to issue revenue bonds to make improvements. For example, voters in Northern and Central California could theoretically vote against raising funds to improve the sewer system in Encino, if it comes with a price tag of over $2 billion. On a larger scale, can Los Angelenos wait up to two years to vote on I-405/US 101 interchange repairs after a devastating earthquake? (Presumably the federal or state governments would provide emergency funding in such a scenario.)

The opposition to Prop 53 include the Association of California Water Agencies, State Sheriff’s Association, League of California Cities, California Chamber of Commerce, California Hospital Association and others. 

Proposition 54: California Legislature Transparency Act 

If this initiative is approved, the legislature would be required to publish every bill (except some regarding emergency measures) in print and online at least 72 hours before a legislative vote; and to record public proceedings to be posted online within 24 hours of the proceedings. Members of the public may also record these public proceedings. All recordings, whether made by legislators or private persons, may be used for any legitimate purpose.

Who’s Voting Yes on Prop 54?

This one gets bipartisan support. The Yes on Prop 54 coalition cites a need to rein in special interest groups who have a history of getting 11th hour revisions made to bills benefitting themselves – without giving lawmakers an opportunity to read, or the public an opportunity to comment on those changes. The audiovisual recordings stipulations provide a record of proceedings, since most members of the public are unable to attend those proceedings and thus have no opportunity to comment.

The bill is supported by the California Chamber of Commerce, the California State Conference of the NAACP, and the state’s League of Women Voters, among others.

Who’s Voting No on Prop 54?

There is a group pushing for a no vote, for the same reason, believe it or not: to deny special interest groups. The No On Proposition 54 alliance says the bill will hinder legislators in developing bipartisan solutions; 72 hours gives special interest groups more time to launch a counter-attack, and it will be more difficult for lawmakers to take action in emergencies.

The group counts the state’s Democratic Party, Labor Federation and others among those who want to defeat the initiative. 

Proposition 55: California Children’s Education and Health Care Protection Act of 2016 

About $6 billion per year was raised when voters approved Proposition 30 back in 2012, through increased taxes imposed on those earning more than $250,000 per year, and through an increased sales tax. The money benefitted K-14 education (11 percent to community colleges; the remaining to grade, middle and high schools). Under Prop 30, the personal income tax increase will expire in 2019, and the increased sales taxes will expire the end of this year.

Prop 55 maintains the current tax rate on high-income individuals and couples for an additional 12 years. (The sales tax is not addressed in this measure and will presumably sunset on December 31st.) Additionally, the measure will allocate up to $2 billion to healthcare programs for children and their families in certain years.

Who’s Voting Yes on Prop 55?

The Yes on 55 Help Our Children Thrive website claims the reversion to a lower income tax rate on high earners will cost California schools about $4 billion per year, and that all taxpayers will benefit when the sale tax increase (0.25 percent) expires.

Yes on 55 is chiefly supported by the Association of California School Administrators, California Federation of Teachers, and the California Medical Association.

Who’s Voting No on Prop 55?

An organized opposition force doesn’t seem to exist at this time, but the California Chamber of Commerce recommended a no vote on Prop 55 last May. The Chamber doesn’t like the virtual permanency of what was supposed to be a temporary tax increase, and cites a state surplus of $3 billion, a proposed balanced budget by Governor Jerry Brown, and the volatile nature of personal income tax revenues. In short, the Cal Chamber characterizes the higher taxes as unnecessary. 

Proposition 56: California Healthcare, Research and Prevention Tobacco Tax Act of 2016 

This is a proposal to raise cigarette taxes by $2.00 per pack to fund healthcare, tobacco use prevention, tobacco-related medical research and law enforcement. Other tobacco products and nicotine e-cigarettes will be similarly taxed. The current tax on tobacco is $0.87 per pack – the lowest in the nation.

Who’s Voting Yes on Prop 56?

The Yes on 56 organization says the tax will reduce youth smoking, help fight cancer, and only target tobacco and nicotine users. Citing studies, they claim 90 percent of smokers start using tobacco as teenagers, and that flavored e-cigarettes are targeting that age group. Additionally, Yes on 56 says every ten percent increase on cigarette costs has a direct correlation to reduced teen smoking – a seven percent drop.

Yes on 56 is endorsed by the American Cancer Society’s Cancer Action Network, the American Heart Association, the American Lung Association, as well as various other health, dental and business groups.

Who’s Voting No on Prop 56?

A few websites by tobacco and vaping, or e-cigarette concerns are showing opposition to this measure, and a Sacramento Bee article reports a $17 million effort to defeat Prop 56. An organization called Not Blowing Smoke has taken to social media, particularly Instagram, to make their points, including: 

  • Government and pharmaceuticals will lose money when smoking rates decline;
  • The bill is full of loopholes – revenues could be used to fund other projects not related to tobacco use;
  • Over 9 million smokers in the U.S. have traded in their cigarettes for less harmful vape products – but a nearly 70 percent tax increase could hinder those transitions. 

A seemingly more organized effort to defeat the tobacco tax encourages voters to “follow the money” – claiming it’s the health insurance companies and special interest groups will benefit financially. The Stop the Special Interest Tax Grab is fronted by Phillip Morris, R.J. Reynolds and a “coalition of taxpayers, educators, healthcare professionals, law enforcement, labor and small businesses.”

Check back with us: we’ll tackle initiatives to regulate felony parole, bilingual education, campaign finance, pornography and prescription drugs – Props 57-61 next.

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. 

 

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