The California Private Attorneys General Act (“PAGA”) is set to undergo a significant overhaul, the first since its enactment nearly two decades ago.  On June 18, 2024, Governor Gavin Newsom announced that an agreement was reached between business and labor groups to reform PAGA.  The agreement comes on the heels of the looming June 27, 2024 deadline to remove a PAGA proposition from the November 5, 2024 ballot.  The agreement, if passed by California’s state legislature, would overhaul several aspects of PAGA and withdraw a ballot measure that would have repealed PAGA’s statutory scheme altogether.  

Continue Reading Will PAGA Be Reformed?

The Supreme Court Rejects a Watered-Down Approach to Preliminary Injunctions

On June 13, 2024, the United States Supreme Court held that when considering the National Labor Relation Board’s (the “Board” or “NLRB”) request for a preliminary injunction under Section 10(j) of the National Labor Relations Act (the “NLRA”), district courts must apply the traditional four-factor test for injunctive relief rather than a less stringent two-factor test used by many courts in evaluating the Board’s injunction requests.  Starbucks Corp. v. McKinney, No. 23-367 (See here).

Continue Reading Can I Please Get Four Shots of Espresso Instead of Two?
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On April 29, 2024, the U.S. Equal Employment Opportunity Commission (the “EEOC” or the “Commission”) published its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”), which is the first harassment guidance issued by the EEOC since 1999.  (See here.)  Harassment claims continue to be prevalent in the workplace.  During the five fiscal years (“FY”) ending with FY 2023, over one-third of the discrimination charges received by the EEOC included an allegation of unlawful harassment based on race, sex, disability, or other protected characteristic.  The Guidance now serves as a single resource for workplace harassment laws and includes discussion of several timely topics, including, but not limited to, protections for LGBTQ+ workers, harassment in the remote workplace, and the interplay between religious freedom and unlawful harassment.  To read more, see our recent article.

On May 16, 2024, the U.S. Supreme Court unanimously held that lawsuits involving an arbitrable dispute must be stayed upon the request of a party.  Rather than dismiss the case, section 3 of the Federal Arbitration Act (the “FAA”) compels the court to issue a stay until the arbitration is completed.   Smith, et al. v. Spizzirri, et al., No. 22-1218  (See here). 

Several current and former delivery drivers sued their employer in Arizona state court alleging their employer violated state and federal employment laws by misclassifying them as independent contractors, failing to pay them required minimum and overtime payments, and failing to provide paid sick leave.

After removing the case to federal court, the employer filed a motion to compel arbitration and dismiss the lawsuit.  Although the parties agreed that the claims were subject to arbitration under the FAA, they disagreed on how the district court should handle the lawsuit.  The employer argued that section 3 of the FAA permitted the district court to dismiss the case, while the plaintiffs argued that the FAA required the district court to stay the action pending arbitration.  The district court dismissed the action without prejudice and the Ninth Circuit affirmed.

The delivery drivers filed a petition for a writ of certiorari and the Supreme Court reversed the Ninth Circuit’s decision and remanded.

Citing section 3 of the FAA, the Supreme Court held that when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial of the action until such arbitration” has concluded.   9 U. S. C. §3.   The Court found that the FAA’s structure and purpose confirm that a stay is required.

Delivering the Court’s opinion, Justice Sotomayor emphasized that the statutory text, structure, and purpose of section 3 all point to its requirement for a court to stay the proceeding upon request.   Id.   Not only does staying a suit upon the completion of arbitration comport with the supervisory role the FAA envisions for courts, it also avoids invoking procedural mechanisms for the filing of an immediate appeal, which would be permissible upon a dismissal of the suit.   Id.

On May 7, 2024, in Ryan, LLC v. FTC et al., Judge Ada Brown of the U.S. District Court for the Northern District of Texas set a briefing schedule on Ryan’s Motion for Stay of Effective Date and Preliminary Injunction (the “Motion”) attacking the FTC Final Rule banning employer-employee non‑compete restrictions, and ordered that she would rule on the merits of the Motion on or before July 3, 2024—two months before the FTC Final Rule is scheduled to become effective on September 4, 2024. 

Continue Reading Motion Seeking to Stay or Enjoin FTC Final Rule Banning Employer-Employee Non‑Competes Set for Ruling by July 3, 2024

The California Department of Industrial Relations recently released its FAQs regarding the new fast food minimum wage law, AB 1228, which took effect on April 1, 2024.  The legislation sets an industry-wide minimum wage for employees in fast food establishments at $20.00 per hour and applies to employees at fast food restaurants that are part of a chain with 60 or more nationwide locations, offer limited or no table service, and are engaged in selling food and beverages for immediate consumption.  Significantly, franchises, regardless of their ownership structure, must comply if they meet these criteria.

Continue Reading Navigating New Minimum Wage Requirements for California’s Fast Food Industry

On April 12, 2024, the U.S. Supreme Court, in a unanimous decision, held that transportation workers need not work in the transportation industry to be exempt from coverage under section 1 of the Federal Arbitration Act (“FAA”).  Bissonnette, et al. v. LePage Bakeries Park St., LLC, et al., No. 23-51.  (See here.)  The Court found the determining factor to be the nature of the employee’s work for the company, not what the company does generally.  

Continue Reading Delivering the Goods:  The Exemption from Arbitration Focuses on the Worker, Not the Industry
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The U.S. Department of Labor’s announcement of the final rule concerning Occupational Safety and Health Administration (“OSHA”) inspections has employers ringing alarm bells.  Set to take effect on May 31, 2024, the rule amends 29 C.F.R. § 1903.8(c) and makes significant changes to who is eligible to accompany OSHA Compliance Safety and Health Officers (“CSHO”) during workplace inspections, which are commonly referred to as “walkarounds.”

Continue Reading Navigating the New OSHA Walkaround Rule

The Los Angeles County Board of Supervisors recently passed the Fair Chance Ordinance for Employers (“Ordinance”), L.A. Cnty. Code § 8.300 et seq., in an effort to ensure  “individuals with criminal records have fair and equitable access to opportunities for gainful employment.”  By September 3, 2024, employers in the unincorporated areas of Los Angeles County with five or more employees must comply with the Ordinance.

Continue Reading L.A. County Board of Supervisors Passes Fair Chance Ordinance

Several key changes to UK employment rights  will come into effect in April 2024. By way of brief summary, the key changes for employers to be aware of, and those that will require immediate attention to ensure legally compliant and up-to-date HR policies and practices in the UK, include the following:

Continue Reading Key Changes Impacting UK Employment Law From April 2024