Governor Brown Signs End of Session Employment Laws Part II

Here are some of the other employment laws that Governor Jerry Brown has signed, which will result in new obligations and liabilities in 2015.  

AB 1897 (text is here)  This new law states that employers that use temp agencies ("labor contractors") are liable for the unpaid wages and liability for failure of the contractor to secure workers' compensation insurance.  There are exceptions for certain types of labor.  Additionally, this law applies only to employers of > 25 workers, who hire more than 5 temps from agencies at a time.  So, for example, if your company hires a vendor to work in your manufacturing plant during a busy season. Then the vendor doesn't pay the employees.  You, the employer, will be liable for those payments on the same basis as the vendor.  Neat, right?  Also, employers and vendors cannot contract away this liability in the service agreement.

AB 1660. (text is here).  The California legislature is not done passing employment laws that make it illegal to take action against those applicants / employees who cannot lawfully be employed.  See, if you intentionally employ people who are unauthorized to work, it can be a federal crime. If you don't employ them, you can get sued for violating California law.  Another reason it's fun to be a California employer, eh gang?

The most recent law is AB 1660. This one addresses California's new driver's license that is specially created for "persons of undocumentation," or whatever the term is now.  If you see such a driver's license, do not take negative action against an employee for having one.  That's because:

It is a violation of the California Fair Employment and Housing Act (Part 2.8 . . . for an employer or other covered person or entity, pursuant to Section 12940 of the Government Code and subdivision (v) of Section 12926 of the Government Code, to discriminate against a person because the person holds or presents a driver’s license issued pursuant to this section, or for an employer or other covered entity to require a
person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law. Nothing in this section shall be construed to limit or expand an employer’s authority to require a person to possess a driver’s license.

So, first, it's "national origin" discrimination to take action against someone who has one of these special driver's licenses. Therefore, if an employee can present sufficient documentation to satisfy the I-9 requirements, it's probably a FEHA violation to deny employment based on the fact that the employee cannot establish the bona fides needed for a "regular" driver's license.

Second, it's illegal to ask to see a driver's license, unless the employer requires the employee to have one.  So:  It's probably best not to inspect an employee's driver's license for driving authorization until after the employee is hired.

The law also provides that driver's license information is confidential.  That means it should not be copied and routinely given out. The law does not designate personnel files as confidential, but they are treated as such to protect employees' privacy. So, there's an argument that third party subpoenas for personnel records should not mandate automatic disclosure of driver's licenses unless there is a sufficiently important reason.

That all said, this law recognizes that the employer has the right to obtain proper authorization for an employee to work, including proper documentation to support an I-9 Form.  The law also says it's not a violation to enforce the IRCA by refusing to hire someone who cannot pass the I-9 Form requirements.  So, there's that.

Did the California Legislature Kill Arbitration?

Could be.  Certainly, arbitration services should be concerned that their services may not command the interest they once did.

Governor Brown just signed AB 802. This law applies to new arbitrations administered after 1/1/2015.

I'm going to call this law the "Slow Death to Arbitration Act."  Catchy? The plaintiff trial lawyers legislators who came up with this one are evil geniuses. If your company conducts arbitration, you are going to want to read this one.

One of the benefits of arbitration is that it's private. Not anymore. The major arbitration services, such as JAMS, AAA, etc. must publish at least quarterly a report and post it on its website.  The information will list the good and the bad, will give anyone who looks a free directory of plaintiff attorneys who have sued your companies, and more.  How about the number of mediations you've been involved in?

I'm highlighting in bold what employers should be most concerned about.

(1) Whether arbitration was demanded pursuant to a pre-dispute arbitration clause and, if so, whether the pre-dispute arbitration clause designated the administering private arbitration company.

(2) The name of the nonconsumer party, if the non consumer party is a corporation or other business entity, and whether the nonconsumer party was the initiating party or the responding party,

if known.

(3) The nature of the dispute involved as one of the following: goods; credit; other banking or finance; insurance; health care; construction; real estate; telecommunications, including software and Internet usage; debt collection; personal injury; employment; or other. If the dispute involved employment, the amount of the employee’s annual wage divided into the following ranges: less than one hundred thousand dollars ($100,000), one hundred thousand dollars ($100,000) to two hundred fifty thousand dollars ($250,000), inclusive, and over two hundred fifty thousand dollars ($250,000). If the employee chooses not to provide wage information, it may be noted.

(4) Whether the consumer or nonconsumer party was the prevailing party. As used in this section, “prevailing party” includes the party with a net monetary recovery or an award of injunctive relief.

(5) The total number of occasions, if any, the non consumer party has previously been a party in an arbitration administered by the private arbitration company.

(6) The total number of occasions, if any, the non consumer party has previously been a party in a mediation administered by the private arbitration company.

(7) Whether the consumer party was represented by an attorney and, if so, the name of the attorney and the full name of the law firm that employs the attorney, if any.

(8) The date the private arbitration company received the demand for arbitration, the date the arbitrator was appointed, and the date of disposition by the arbitrator or private arbitration company.

(9) The type of disposition of the dispute, if known, identified as one of the following: withdrawal, abandonment, settlement, award after hearing, award without hearing, default, or dismissal without hearing. If a case was administered in a hearing, indicate whether the hearing was conducted in person, by telephone or video conference, or by documents only.

(10) The amount of the claim, whether equitable relief was requested or awarded, the amount of any monetary award, the amount of any attorney’s fees awarded, and any other relief granted, if any.

(11) The name of the arbitrator, his or her total fee for the case, the percentage of the arbitrator’s fee allocated to each party, whether a waiver of any fees was granted, and, if so, the amount of the waiver.

So, now, the enforceability of an arbitration agreement will be one issue. Whether you want the results of all your arbitrations posted online, with all the above information included, is something else.  Employers will have to consider whether to use private arbitration services, and whether this information revealed to the public makes arbitration an attractive alternative.

Good luck in 2015.