Hunton Employment & Labor Perspectives

On August 15, 2024, the California Supreme Court held in a unanimous decision that public employers are not “employers” within the meaning of the meal-and-rest-break provisions of the California Labor Code, and the California Private Attorneys General Act (“PAGA”) exempts public employers from penalties for violations of Labor Code provisions carrying their own penalties.  The Court’s ruling substantial limits public employees’ ability to sue for wage-and-hour violations.

California lawmakers are considering passing a bill that would give employees the “right to disconnect” by ignoring after-hours calls, emails, and other communications from their employers.  The bill, AB 2751, introduced by Assemblyman Matt Haney (D-San Francisco), would add a Section 1198.2 to the Labor Code that would effectively prevent employers from contacting employees outside of working hours, with limited exceptions.

On September 30, 2023, California Governor Gavin Newsom signed Senate Bill 553 creating new workplace violence prevention standards in California. The law consists of the first general industry workplace violence prevention requirement in the United States.  Under the law—specifically Labor Code Section 6401.9, this law amends California’s Code of Civil Procedure (“CCP”) to change the process by which employers may petition for temporary restraining orders (“TROs”) on behalf of employees.  CCP Section 527.8 previously allowed employers to petition for a ...

Courts have repeatedly upheld California’s “strong public policy” prohibiting agreements that restrain individuals from “engaging in a lawful profession, trade, or business of any kind.”  Indeed, under Section 16600 of the California Business and Professions Code, these agreements—generally referred to as noncompete agreements—are generally void.  California now seeks to enshrine additional laws strengthening its prohibition on noncompete agreements.

On May 31, 2023, the California Senate passed Senate Bill (“SB”) 553 creating new workplace violence prevention standards in California.  Under the Bill, employers are mandated to develop and maintain written prevention plans tailored to their specific workplaces.  The Bill is next set to go through policy committees in the State Assembly.  If approved by the Assembly and signed into law by the governor, the measure would likely go into effect next year.  However, several policymakers have expressed concern regarding the effect of the Bill as written; thus, it is far from assured that the legislation will be approved without changes.

California’s new bereavement leave law, which became effective beginning January 1, 2023, requires most employers to allow their employees to take up to five days of leave upon the death of certain family members.  Although previous bills providing for bereavement leave had been stymied by vetoes, Governor Gavin Newsom signed the new legislation—Assembly Bill (“AB”) 1949—into law as an “important step” to ensure that low-wage workers “can access the time off they’ve earned while still providing for their family.”  The new law makes California one of the few states requiring employers to provide bereavement leave.

On September 18, 2022, California Governor Gavin Newsom signed into law Assembly Bill (“AB”) 2188, which prohibits employer discrimination based on employees’ use of cannabis off the job and away from the workplace.  While recreational use of cannabis, or marijuana, has been legal in California since 2016, the new law goes farther in specifically providing protections for employees who consume the substance.  AB 2188 makes California the most recent state to provide workplace protections for use of marijuana away from the workplace.  The bill will become effective beginning January 1, 2024.

San Francisco has significantly expanded its Family Friendly Workplace Ordinance to guarantee flexible or predictable work arrangements for employees with qualifying caregiver responsibilities when the employee provides notice of their preferred arrangement, unless the employer can demonstrate an undue hardship to the employer.

Assembly Bill 1651 or the Workplace Technology Accountability Act, a new bill proposed by California Assembly Member Ash Kalra, would regulate employers, and their vendors, regarding the use of employee data.  Under the bill, data is defined as “any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular worker, regardless of how the information is collected, inferred, or obtained.”   Examples of data include personal identity information; biometric information; health, medical, lifestyle, and wellness information; any data related to workplace activities; and online information.  The bill confers certain data rights on employees, including the right to access and correct their data.

On March 14, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document providing guidance when it comes to claims of discrimination against employees and applicants with caregiving responsibilities in connection with the COVID-19 pandemic (“Guidelines”).  The Guidelines, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, examine discrimination against employees and applicants based on pandemic caregiving responsibilities, noting that such discrimination may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other federal laws.

SB 606, which took effect January 1, 2022, greatly increases the California Division of Occupational Safety and Health’s (“Cal/OSHA’s”) enforcement powers by creating two new violation categories – “enterprise wide” and “egregious” violations.

New York Governor Kathy Hochul has signed S.B. 4394, an amendment of Section 740 to the New York Labor Law that dramatically expands safeguards against employer whistleblower retaliation. The new law expands protected activity that entitles an employee to whistleblower protection, the categories of covered workers protected by the statute, and the definition of prohibited retaliatory actions, among other changes.  The new law takes effect on January 26, 2022. Some of the key provisions that New York employers should carefully review are listed below.

On September 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the “ADA”). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation.