Court of Appeal Holds Claims For Alleged Harassment And Discrimination Are Time-Barred When Brought More Than One Year After Last Alleged Bad Act

By Christopher S. Andre and Scott K. Dauscher

In Travato v. Beckman Coulter, Inc., the California Court of Appeal issued a decision potentially helpful to employers defending claims of alleged harassment and/or alleged retaliation, holding that the plaintiff's claims were time barred because she failed to present them within one year of the last alleged bad act and holding there was no evidence to support application of the continuing violations doctrine, which, under some circumstances, can save claims that would otherwise be time-barred. 

A current or former employee who wishes to bring suit for alleged discrimination, harassment, or retaliation in violation of the Fair Employment and Housing Act ("FEHA") must first submit to the Department of Fair Employment and Housing a complaint.  Such complaints generally must be submitted to the DFEH within one year of the alleged discriminatory, harassing, or retaliating conduct.  If the complaint is timely submitted, the would-be plaintiff has one year from the date the DFEH provides to the would-be plaintiff a right-to-sue notice within which to file suit. 

In this case, the Court of Appeal affirmed the trial court's decision to grant summary judgment in favor of the employer and in favor of the plaintiff's supervisor who allegedly harassed and retaliated against the plaintiff because the plaintiff submitted the required pre-suit complaint to the DFEH more than one year after the last act of alleged harassment could have taken place based on the deposition testimony of the plaintiff.  

Significantly for employers defending such lawsuits, the Court of Appeal held also that the continuing violation doctrine, which "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to the unlawful conduct within the limitations period," did not apply because the plaintiff failed to identify during her deposition any such conduct taking place within the one-year statute of limitations period (i.e., within the year preceding the date she first submitted to the DFEH her complaint).  The Court of Appeal held that the following conclusory statements contained in a declaration the plaintiff submitted after her deposition were not sufficient to defeat the employer's motion for summary judgment:  "From January 2007 through May 22, 2007, Alyn is not my manager at Beckman, but he is still harassing me," and Allyn was "running . . . roughshod" and "didn't have any boundaries."  In addition, the Court of Appeal held the fact that the plaintiff remained assigned to the allegedly harassing supervisor during the statute of limitations period without evidence of at least one act of harassment or retaliation by that allegedly harassing supervisor during the statute of limitations period was not sufficient to invoke the continuing violation doctrine. 

This case serves as a reminder there are sound reasons for an employer to take a proactive approach when an employee complains of or the employer otherwise learns of alleged harassment or retaliation.  To begin with, the law requires an employer to promptly investigate such conduct and to take reasonable steps to put a stop to it if it has occurred.  Further, putting a stop to such conduct if it has occurred starts the statute of limitations running and may provide the employer with a defense to later filed claims. 

Failure To Provide Seats To Employees Class Action Lawsuits Start To Roll In

By Scott K. Dauscher and Christopher S. Andre

As we reported here, the California Court of Appeal recently issued a decision holding that an "aggrieved" employee can seek against his or her current or former employer penalties under the California Private Attorneys General Act of 2004 penalties for failing to provide to employees as required by an applicable Industrial Welfare Commission ("IWC") wage order.  Specifically, In Home Depot U.S.A., Inc. v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders.  In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements.  Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order." 

Today, plaintiff attorneys filed in the Los Angeles County Superior Court three class action lawsuits against major retailers seeking seeking PAGA penalties for alleged failure to provide to employees seats as required by IWC Wage Order 7-2001.  Unfortunately, we expect many more such class actions will follow.

9th Circuit Court of Appeals Holds Employees Who Quit After Announcement of Plant Closing Are Entitled To WARN Act Notice

By Ronald W. Novotny

The United States Court of Appeals for the Ninth Circuit as recently faced with a question of first impression under the federal Workers’ Adjustment and Retraining Notification (WARN) Act -- whether  employees who leave a job because a business is closing have “voluntarily departed” within the meaning of the statute.  In Collins v. Gee West Seattle, LLC issued January 21, 2011, the court answered the question in the negative and held that such employees are entitled to receive the sixty days’ notice required by the statute. 

The case arose out of a claim by approximately 150 employees that an auto dealership had failed to provide them with the required notice in advance of closing its facilities, by announcing on September 26, 2007 that it would be “closing its doors” only ten days later.  By October 5, 2007, only 30 employees remained, and the company shut its doors that day.  The suit was brought on the ground that the dealership failed to provide the required notice to each “affected employee,” which the statute defines as anyone who “may reasonably be expected to experience an employment loss as a consequence of a plant closing.”  “Employment loss” is in turn defined as an employment termination other than a discharge for cause, retirement, or “voluntary departure.”

The district court dismissed the case on the ground that the 120 employees who left their jobs before October 5 did not suffer an “employment loss” because they “voluntarily departed” their jobs, and that the statutory notice was therefore not required because there was no “plant closing” resulting in job losses for at least 50 employees within a 30-day period as is required to trigger the statute.  However, the Ninth Circuit disagreed with this interpretation and held that it was inconsistent with the purpose and structure of the statute, which is to provide time to employees who lose their jobs as a result of a plant closing to find new employment without “being pressured to mitigate damages by taking any job offered.”  The employees were accordingly permitted to proceed with their claim against the dealership for failing to provide them with the required notice, and to seek recovery of back pay and benefits for the full sixty days. 

U.S. Supreme Court Holds NASA Background Checks Of Employees Not Previously Subject To Background Checks Does Not Violate Constitutional Rights To Privacy

By Jay G. Trinnaman

On January 19, 2011, the United States Supreme Court held in NASA v. Nelson that the government’s implementation of a background check program for current employees did not violate their constitutional right to informational privacy.  At the time of their hire, the contract employees at NASA’s Jet Propulsion Laboratory were not subjected to government background checks.  However, the Department of Commence subsequently ordered that all employees with long-term access to federal facilities complete a standard background check for purposes of uniform identification for all federal employees.  JPL notified its employees that if they failed to complete the background check process, they would be denied access to the facilities and face termination.

The background check included questions pertaining to employee illegal drug use, treatment and counseling.  It also required that employees sign a waiver granting access to personal information from schools, employers and other sources.  Those references would be subject to broad questions as to whether they had cause to doubt the honesty or trustworthiness of the JPL employees or if they had any “adverse information” about a variety of other matters.

The employees initiated suit on the grounds that the mandatory background checks violated their constitutional right to informational privacy.  The Ninth Circuit granted injunctive relief in favor of the employees, holding that the questions pertaining to drug treatment and counseling did not further a legitimate interest and were therefore likely unconstitutional.  The Ninth Circuit also held that that the broad questions directed to the employees’ references were not sufficiently narrowly tailored to further the government’s interest in identifying contractors and ensuring the security of JPL’s facilities.

After granting certiorari, the Supreme Court rejected the Ninth Circuit’s decision.  In a unanimous decision, the Supreme Court held that the background check questions were reasonable in light of the government’s interests at stake.  The decision was set against the backdrop that similar background checks have been in place for federal civil-service candidates for years without issue.

The Supreme Court noted that the government has a legitimate interest in conducting such background checks to securing its worksite facilities and employing a competent workforce.  With respect to the legitimacy of the questions pertaining to drug treatment, the Supreme Court therefore held that they were reasonable inquiries related to evaluating its employees.  Specifically, these questions were seeking to distinguish those employees that were drug users from those that had actively sought treatment to overcome their issues.  The Court used the same analysis with respect to the open-ended conduct questions directed towards the employees’ references, finding that that they were reasonable methods from identifying strong and weak candidates.  These were deemed to be reasonable inquiries that furthered the government’s interest in having capable employees.

The Court noted that the government did not have the burden of proving that the background questions were the least restrictive means available to achieve its reasonable goals.  Finally, the Supreme Court concluded that any information collected through the background checks was subject to substantial protections against unwarranted disclosure to the public based on the Privacy Act.

This decision should be of particular interest to public employers, as it illustrates their ability to make potentially sensitive inquiries into the backgrounds of both prospective and current employees, if there is an identifiable and reasonable, employment-related purpose for the questioning.  Notably, the Supreme Court established that the efficient management of a government entity’s internal operations is satisfactory to meet that burden.

NLRB Tells States Secret Ballot Only Union Election Laws Are Preempted By Federal Labor Law

By Thomas A. Lenz, Scott K. Dausher, and Christopher S. Andre

On January 14, 2010, the National Labor Relations Board ("NLRB") issued a press release stating it informed the Attorneys General of Arizona, of South Carolina, and of Utah that recently-approved constitutional amendments to those states' laws requiring that union elections be conducted only by secret-ballot elections and not by submission of signed union authorization cards or by other means.  The NLRB informed those states also that the NLRB would file suit in federal court to enjoin those states from enforcing those laws. 

The NLRB does, occasionally, take an active interest in changes to law at the State level.  In 2007-2008 the NLRB joined the Chamber of Commerce's attack on California legislation restricting labor-related communications by employers who receive state funds.  There, the NLRB argued that California law's restrictions on non-coercive employer communications with employees about labor issues conflicted with employers' protections under federal law in the National Labor Relations Act.  The Supreme Court agreed with NLRB and struck down the California law in the 2008 Chamber of Commerce v. Brown ruling.

The posture taken by NLRB may, on its face, appear hostile to the concept of secret ballot elections.  However, the NLRB's position is supported by decades of legal authority allowing for bargaining relationships between employers and unions to be created with mechanisms other than secret ballot elections.  Voluntary recognition, providing for a bargaining relationship without a secret ballot election, has long been a way for employers and unions to commence relationships provided that the union first gathers uncoerced evidence of majority support from the employees the union claims to represent.

By limiting lawful employee representation to instances where a secret ballot election has been held, the various state enactments would effectively eliminate voluntary recognition as a viable mechanism for private sector labor relations governed by the National Labor Relations Act.  Additionally, the enactments if allowed to remain in effect may very well call into question the ongoing validity of preexisting bargaining relationships where there has been no secret ballot election conducted by NLRB or otherwise.  In that light, the enactments clearly call into question matters regulated by the NLRB and which affected employees, employers, and labor unions should reasonably expect to be stricken down as enacted.

Court of Appeal Issues Decision Helpful To Employers Defending Against Claims Of Harassment And Similar Claims

By Christopher S. Andre and Andres C. Hurwitz

As the job market continues to flounder and the number of lawsuits alleging claims for alleged discrimination, harassment, retaliation, wrongful termination, and similar claims continues apace, the Court of Appeal has issued a decision that should prove helpful to employers defending such cases.  In Holmes v. Petrovich Development Company, the court affirmed the trial court's grant of summary adjudication in favor of Petrovich Development and Paul Petrovich and against Gina Holmes on her claims she was harassed, retaliated against, and constructively wrongfully terminated on account of her pregnancy in violation of the Fair Employment and Housing Act ("FEHA"). 

Much of the court's decision focuses on a series of email messages between Ms. Holmes and her immediate supervisor, Mr. Petrovich, concerning her pregnancy and her request for a leave of absence connected to that pregnancy.  By way of example, one the email messages Mr. Petrovich sent to Ms. Holmes stated: "I need some honesty.  How pregnant were you when you interviewed with me and what happened to six weeks? . . . That is an extreme hardship on me, my business and everybody else in the company.  You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure."   After consulting with an attorney, initially via email using her work computer, Ms. Holmes quit her job and later filed filed suit. 

The trial court found the email exchanges between Ms. Holmes and Mr. Petrovich "could not be objectively found to have been severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment based on her pregnancy."  The Court of Appeal affirmed and explained in order to establish a claim for sexual harassment based on a hostile work environment, there must be comments or conduct "sever enough or sufficiently pervasive to alter the conditions of . . . employment and create a hostile or abusive work environment" and that one generally cannot recover for alleged harassment "that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature."  The Court of Appeal states:  "It appears Holmes expects FEHA to be a civility code.  It is not."  

The Court of Appeal explained, also, that because Ms. Homes' harassment claim could not succeed, neither could her claim for constructive wrongful termination:  "Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge."  

As for Ms. Holmes' retaliation claim, the court explained: "An 'adverse employment action,' which is a critical component of a retaliation claim [citation], requires a 'substantial adverse change in the terms and conditions of the plaintiff's employment.'"  The Court of Appeal agreed with the trial court there was insufficient evidence to establish an adverse employment action."  Finding none, the court reiterated that "[A] mere offensive utterance or . . . a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of FEHA."

Ms.Holmes took issue, also, with the trial court's decision to admit into evidence the email messages Ms. Holmes exchanged with her attorneys using her work computer.  The Court of Appeal agreed with the trial court that the attorney-client privilege was waived as to those email messages because, under the circumstances, Ms. Holmes could not have a reasonable expectation of privacy as to those email messages on account of the employer's policies regarding use of the company's computers.  (1) Ms. Holmes was informed of the company's policy that company computers were to be used only for company business and not for personal email, (2) Ms. Holmes was warned the company would monitor the use of its computers, and (3) Ms. Holmes was advised employees have not right of privacy as to any personal information or messages placed on company computers in violation of the company's policy.  The court states:  "[t]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him" thus waiving the attorney-client privilege. 

We believe this decision will likely help employers to defend against and dispose of  before trial emotionally charged claims that are legally tenuous but carry potential jury appeal.  In addition, the decision further establishes that employers can restrict how company computers are used and when sufficient policies are in place monitor employees' use of company computers. 

NLRB and DOT Consider New Regulations Affecting California Employers

By Ronald W. Novatny

In a spate of recent activity, the federal National Labor Relations Board and U.S. Department of Transportation have issued proposed regulations that would affect employers in the transportation and other industries affecting interstate commerce.  The proposed regulations are:

● A Notice of Rulemaking issued by the NLRB which would require employers to post 11 x 17 posters in their workplaces, or in either email or web postings if they normally communicate in that manner, advising their employees of their right to join, form, and assist unions under the National Labor Relations Act.  The poster, which would mirror the one required by the Dept. of Labor for federal contractors, would specifically inform employees of their rights to organize, bargain collectively, and engage in other union-related activities without retaliation for discrimination by their employer.  The proposed rule would also provide that failure to post the notice is an unfair labor practice and could be used as evidence of an unlawful motive, and that the statute of limitations for bringing unfair labor practice charges would continue to run if the notice is not posted.  The rule was published in the Federal Register on December 21, 2010, and may be adopted following the expiration of the sixty-day comment period which began to run on that date.  The proposed poster can be found in the Appendix to Subpart A of the Notice of Proposed Rulemaking by clicking here. 

● On December 29, 2010, the D.O.T.’s Federal Motor Carrier Safety Administration (FMCSA) issued proposed regulations revising the hours of service for drivers of property-carrying commercial vehicles.  The proposed rule would maintain the required off-duty period for drivers of at least 10 hours, but would reduce the period of time during which a driver can then be “on duty” from 14 hours to 13 -- with “on-duty” time consisting of such activities as waiting for cargo, unloading, and taking meal and rest breaks, as well as driving.  In exigent circumstances, drivers would also be able to extend their “on-duty” windows to 16 hours twice a week, so long as they took three-hour breaks.  The weekly limits in the current rule, of 60 hours in 7 days or 70 hours in 8 days, would remain unchanged.  However, the 34-hour “break” which permits drivers to restart the workweek clock would be changed to require at least two 6-hour break periods between midnight and 6 a.m.  The American Trucking Association is lobbying heavily against the proposed rule changes, which have also been put out for comment for 60 days.  The text of this proposed rule can be accessed by clicking here.

AALRR is monitoring the both of these proposed rules and will provide updated alerts on any final rules that are adopted by these agencies.

Court of Appeal Reiterates That PAGA Penalties Are Available For Wage Order Violations

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the California Court of Appeal held an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats.  The court rejected the employer's argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of nonwage labor standards contained in the IWC's wage orders. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use.  She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful.  The court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.  

In Home Depot U.S.A., Inc. v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders.  In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements.  Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order." 

California courts have yet to squarely address the issue raised by Bright and now by Home Depot as to whether in some circumstances a plaintiff current or former employee could in some circumstances seek both wage order civil penalties and PAGA civil penalties.  Although we do not believe an award of such double penalties would be lawful, we think it is likely plaintiff attorneys will argue based on remarks contained in  he Bright and Home Depot cases that such double recoveries are permitted. 

U.S. Supreme Court Schedules Oral Argument In Dukes v. Wal-Mart Stores, Inc.

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here,  on April 26, 2010, in Dukes v. Wal-Mart Stores, Inc., a divided Ninth Circuit Court of Appeals decided 6-5 en banc to affirm the decision of the trial court to grant class certification in a discrimination lawsuit alleging Wal-Mart Stores discriminates against its women employees. The nationwide class is reputed by the Los Angeles Daily Journal to number upward of 1.6 million women employees, which would make the class the largest class in United States history.

Given the stakes involved and the issues involved, we believed it was a virtual certainty that Wal-Mart Stores would petition the United States Supreme Court for review of the 9th Circuit's decision.  Although review by the Supreme Court is discretionary, we also thought the Supreme Court would very likely be interested in this case given the importance of the issues not only to Wal-Mart Stores and its employees but to numerous other large employers and their employees. Further, the 9th Circuit Court of Appeals is not only the largest of the Circuit Courts of Appeal; it also the most frequently reversed Circuit Court of Appeals.  

On December 23, 2010, only 17 days after it granted Wal-Mart's petition for review on December 6, 2010, the Supreme Court set the case for oral argument on March 29, 2011.  Click here to review the case docket.  We will continue to report significant developments in the case as we learn of them.

Are Non-Compliant Wage Statements Putting Your Company At Risk?

By Christopher S. Andre and Scott K. Dauscher

In defending numerous wage and hour class action lawsuits, one thing is constant.  Such lawsuits nearly always include allegations that the employer failed to provide employees with wage statements (aka check stubs) that comply with Labor Code section 226, which specifies nine items of information that must be stated on each wage statement.  Such allegations take one or both of the following forms: (1) allegations that the employer did not pay employees for all hours worked and, therefore, failed to comply with the requirement of Labor Code section 226(a)(2) that wage statements show all hours worked and/or (2) allegations that the employer's wage statements fail to comply with the requirements of Labor Code section 226(a) in some other respect, such as failing to include the full name and address of the legal entity that is the employer as required by Labor Code section 226(a)(8).  

It is not hard to understand why plaintiff attorneys pursue claims for allegedly non-compliant wage statements -- the awards of penalties and attorney's fees can be very substantial.  Labor Code section 226(e) states that an employee "suffering injury as a result of a knowing and intentional failure by an employer" to comply with Labor Code section 226(a) is entitled tor recover the greater of his or her actual damages or $50.00 for the initial pay period in which a violation takes place and $100 "per employee for each violation in a subsequent pay period" up to $4,000.00 per employee.  In a class action involving 100 employees, those penalties could total $400,000.00.  In a class action involving 500 employees, those penalties could total $2 Million.  Plaintiff attorneys typically also seek additional penalties under the Labor Code Private Attorneys General Act of 2004, which provides for penalties of $100.00 "for each aggrieved employee per pay period for the initial violation" and $200.00 "for each aggrieved employee per pay period for each subsequent violation."  Again, in a class action, such penalties can add up quickly.  To add insult to injury, in class action cases, courts routinely approve attorney's fees awards to the plaintiff(s)'s attorneys in excess of $1 Million.  

The good news is the risk of being subjected to such awards of penalties and attorney's fees on account of non-compliant wage statements is generally easily avoided.  We recommend that employers consult  competent employment counsel and take the appropriate steps to make certain that their employees are paid for all hours worked and that the wage statements issued to their employees comply with the requirements of Labor Code section 226.

AALRR Attorney Marilou Mirkovich To Co-Present State Bar Webinar Entitled "The Basics of Investigating Workplace Complaints of Harassment, Discrimination and Retaliation"

Employers are frequently presented with or learn second-hand about complaints by employees ranging from the trivial to serious.  An employer's response to such complaints or to second-hand reports of workplace harassment, discrimination, and/or retaliation can help reduce or eliminate liability on the part of the employer or even create liability on the part of the employer. 

On Thursday, January 6, 2011, from 11:30 a.m., to 12:30 p.m., AALRR attorney Marilou Mirkovich will co-present with other experts in the field a California State Bar Labor and Emploment Law Section Webinar entitled" "The Basics of Investigating Workplace Complaints of Harassment, Discrimination and Retaliation."  Among other things, participants will learn about how to determine which complaints should be investigated, how to determine who should conduct a necessary investigation, and what an adequate investigation should include. 

Click here to learn more about and to register for this informative and timely presentation. 

Quiet 2010 for California Employment Legislation Not Likely to Repeat in 2011

By Jonathan Judge

In 2010, former Governor Arnold Schwarzenegger vetoed nine out of the eleven employment-related bills we were tracking that made it to his desk for approval. Among the vetoed legislation were bills: limiting the use of credit checks in employee background checks, requiring employers to provide unpaid bereavement leave, increasing damages in minimum wage actions, increasing penalties for failure to pay final wages actions, and removing overtime and meal period exemptions for certain agricultural employees.

With Jerry Brown as Governor, California employers should prepare for a resurgence of employee-friendly legislation on a level not seen since the 2003 legislative session--the last session before Governor Schwarzenegger defeated Governor Gray Davis in the recall election. It would not be surprising to see the Legislature revisit many of the bills vetoed over the last few years in the upcoming legislative session, including those of last year.

Two bills Governor Schwarzenegger did sign were effective January 1, 2011:

AB 569 (Emmerson) Meal & Rest Periods - This bill amends Labor Code Section 512 and exempts from meal and rest period provisions, employees in construction, commercial drivers, employees of local publically owned electric utilities, and security officers, as defined, if such employees are covered by a valid Collective Bargaining Agreement (“CBA”). To qualify for the exemption, the CBA must provide for: wages, hours of work, and working conditions of employees, and meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.

SB 1304 (DeSaulnier) Marrow Donation Leave - This bill requires employers with 15 or more employees to permit employees to take paid leaves of absence for organ donation (up to 30 days) and bone marrow donation (up to five days), and to restore an employee returning from such leave to the same or equivalent position. The bill also prohibits an employer from interfering with, or retaliating against, an employee taking such leave, or opposing an unlawful employment practice related to such leave. The bill also creates a private right of action for aggrieved employees to seek enforcement of these provisions. Covered employers may require an employee take up to five days of earned but unused sick or vacation leave for bone marrow donation, and up to two weeks of earned but unused sick or vacation leave for organ donation as a condition of receiving such leave.

Please check back regularly for updates on California legislation as we track legislation in 2011.