Thursday, September 14th marked the deadline for California’s two legislative bodies – the state assembly and state senate – to pass bills. Bills passed by both bodies will now head to Governor Gavin Newsom’s desk, where the governor will have one month to determine which bills to sign into law.
The employment bills Mr. Newsom will consider for approval run the gamut, from legislation on caregiver discrimination to bills increasing paid sick days. Below is a recap of the bills at the governor’s desk that figure to have the greatest impact on California’s workers if approved.
Family Caregiver Discrimination – AB 524
AB 524 would amend the state’s Fair Employment and Housing Act (FEHA) by adding “family caregiver status” to the list of protected characteristics that employers cannot take into account when making employment decisions such as hiring and firing.
Consideration of this bill comes at a critical time. Caregivers are the fastest growing workplace identity group and may make up us much as 73% of the American workforce. More than 63 million Americans care for at least one child, and 40.4 million Americans provide unpaid care to someone aged 65 years or older. The pandemic’s aftermath and America’s rapidly aging population have only exacerbated the challenges faced by caregivers.
Arbitration Appeal Delays – SB 365
When trial courts find that a forced arbitration agreement is invalid, employers frequently use delay tactics, such as filing an appeal, that can effectively pause a case for years at a time. If signed into law, SB 365 would undercut such tactics and allow employment lawsuits to move forward when defendants file appeals involving a petition to compel arbitration.
WARN Act Expansion – AB 1356
California’s Worker Adjustment and Retraining Notification (WARN) Act protects employees by requiring employers to give a 60-day notice to affected employees before a plant closing or mass layoff. AB 1356 would expand the WARN Act’s protections by requiring employers to provide employees with 75 days of advance notice. It would also prohibit employers from requiring employees to waive their rights by signing onerous severance agreements with releases and non-disparagement provisions in exchange for the payment of back wages. The bill was inspired by the massive layoffs at tech companies like Google and Meta, particularly Elon Musk’s alleged mishandling of layoffs at the company formerly known as Twitter.
Additional Paid Sick Days- SB 616
SB 616 would require California’s employers to provide workers with five days of paid sick leave instead of the current allotment of three. Increasing the number of paid sick will reduce the frequency at which workers, particularly low-income workers, are forced to make difficult decisions between foregoing pay and going to work sick. If signed into law, the bill is also expected to strengthen public health protections. According to the Washington Center for Equitable Growth, “paid sick leave guarantees are seen by many public health experts as one of the strongest tools in stopping the spread of infectious diseases.”
For a list of other employment bills heading to Mr. Newsom’s desk, click here. The governor will have until October 14th to sign bills from this year’s legislative session into law.
Lauren Teukolsky will speak on a panel for the Alameda County Bar Association’s (ACBA) Labor and Employment Symposium on Friday, September 15th. The panel is titled, “In Viking River’s Wake: Two Supreme Courts on the Future of PAGA,” and will focus on the viability of PAGA actions following the US Supreme Court’s opinion in Viking River and the California Supreme Court’s decision in Adolph v. Uber Technologies.
Ms. Teukolsky will appear on the panel alongside Arthur Gaus, a partner at Kaufman Dolowich. The pairing will allow viewers to hear analysis from an employee’s perspective, represented by Ms. Teukolsky, and an employer’s perspective, represented by Mr. Gaus.
Ms. Teukolsky’s commentary on both Viking River and Adolph v. Uber has been featured in a variety of publications, including Bloomberg Law, Daily Journal and Law.com. She also previously discussed the cases on panels presented by the Beverly Hills Bar Association, Los Angeles County Bar Association, and California Employment Lawyer Association.
The panel will take place over Zoom in addition to several other panels being presented at the ACBA symposium. For more information on the panels and how to view them, click here. For more information on Ms. Teukolsky’s work and her firm, click here.
Lauren Teukolsky will speak on a Beverly Hills Bar Association (BHBA) webinar on August 22 on the future of California’s Private Attorneys General Act (PAGA) following the state’s highly anticipated Supreme Court ruling in Adolph v. Uber Technologies, Inc.. Chris Jalian, a Partner at Paul Hastings, LLP, will join Ms. Teukolsky on the webinar. Nazgole Hashemi, Co-Founder of LegalAxxis, Inc., will serve as moderator for the event.
The webinar will examine what the Adolph v. Uber ruling means for employees and employers, with Ms. Teukolsky representing the employees’ perspective and Mr. Jalian representing the employers’ perspective. In the ruling, the Court held that California’s workers could continue to pursue PAGA labor claims on behalf of their coworkers even if their individual labor claims were forced into arbitration. Experts considered the ruling to be a big win for the state’s workers.
Ms. Teukolsky’s commentary on Adolph v. Uber was previously featured in several articles by Bloomberg Law and Law.com.
The BHBA’s Labor and Employment section will present the webinar. The section provides a forum for labor and employment attorneys and neutrals to network, share ideas, and learn about the latest issues and trends in the field.
The webinar will take place on Tuesday, August 22 from 12:30 pm to 1:30 pm PT via ZOOM. To register, click here.
Lauren Teukolsky Quoted by Bloomberg Law and Law.com on long-awaited CA Supreme Court Ruling in Adoph v. Uber
Lauren Teukolsky was quoted by Bloomberg Law and Law.com in a pair of articles this week on the CA Supreme Court’s Monday decision in Adolph v. Uber Technologies, Inc.. In the highly anticipated ruling, the Court held that the state’s workers could continue to pursue representative PAGA labor claims even if their individual labor claims were forced into arbitration. The Court’s ruling is considered a huge win for California’s workers.
PAGA (Private Attorneys General Act) is a state law that authorizes employees to collect civil penalties for violations against themselves and their coworkers on behalf of California’s Labor Commissioner, which has struggled to manage a backlog of cases for the past several decades.
Arbitration is a private dispute resolution process that overwhelmingly favors employers and shields corporations from public scrutiny and accountability. Employers frequently require their employees to sign agreements stipulating that all claims made by them will be resolved in private arbitration as opposed to being litigated through the courts, a process that is public and more favorable to workers.
A ruling in Uber’s favor would have made it very difficult to bring PAGA cases forward – due to the prevalence of arbitration agreements – and would have seriously eroded workers’ ability to enforce the state’s labor laws.
Uber’s lawyers have indicated that the company is considering appealing the Court’s decision. According to analysis Ms. Teukolsky published on LinkedIn, the U.S. Supreme Court is unlikely to hear such an appeal, especially in light of its 2022 decision in Viking River Cruises, Inc. v. Moriana. She said, “It's unlikely SCOTUS will hear a case from a state supreme court involving entirely state-law issues; there must a federal question involved.”
Ms. Teukolsky has represented workers for over two decades and her commentary on the latest developments in employment law is regularly featured by major publications such as Bloomberg Law, Law360, Law.com, and the Los Angeles Times.
To access the Bloomberg Law article in its entirety, click here. To access the Law.com article in its entirety, click here.
We’re halfway through 2023, and so far it’s lived up to experts’ predictions of being one of the most active years for labor strikes in recent memory. Below is a round-up of some of this year’s most significant strikes and strike authorizations.
LAUSD Teachers’ Strike
In late March, workers for the Los Angeles Unified School District (LAUSD), the nation’s second largest public school system, embarked on a three-day strike hoping to secure pay increases as the cost of living in Southern California rapidly outpaced their wages.
The worker’s efforts were ultimately successful. In April, LAUSD ratified a contract negotiated with the teachers’ union, UTLA, that raises teachers’ pay by 21% over the course of three years, bringing the average LAUSD teacher salary to $106,000 by 2025. The agreement also included salary increases for LAUSD’s nurses, mental health workers, and special education teachers, along with promises to reduce class sizes. More than 94% of the 27,171 ballots cast by UTLA members were in favor of the new contract.
Hollywood Writers’ Strike
On May 2, the membership of the Writers’ Guild of America (WGA), a union representing approximately 11,500 Hollywood writers, went on strike. Hollywood writers are fighting against numerous trends in the entertainment industry that have caused their pay and job security to decline significantly over the past decade while industry profits have ballooned, particularly for the likes of streaming companies such as Netflix, which reported a $5.6 billion operating profit for 2022.
The writer’s strike is still ongoing with no end in sight. Highly anticipated TV projects such as “Stranger Things” and a “Game of Thrones” spinoff have been delayed and other major series are expected to be postponed. Beyond the changes Americans may see on their television screens, the strike also figures to have significant consequences for the economy at-large. The last writers’ strike in 2008 cost the California economy $2.1 billion as writers and countless other workers that support the entertainment industry– designers, electricians, grips, and restaurant workers – felt the crunch of the work stoppage.
UNITE HERE Local 11 Strike Authorization
On June 9, members of UNITE HERE Local 11, a union representing service and hospitality workers across the American Southwest, overwhelmingly voted to authorize a strike. The union could now call for 15,000 of its members across dozens of Southern California hotels to strike. Doing so would amount to the largest industry wide strike in U.S. history.
The top priority for the hotel workers is securing higher wages to combat the persistent rising cost of living in Southern California. Even though Hotel profits in Los Angeles and Orange County now exceed their pre-pandemic levels, the workers that form the backbone of their operations still struggle to make ends meet.
A strike may take place as early as July 4th weekend.
Teukolsky Law commends workers for the gains they’ve made this year and recognizes them for the courage it takes to put themselves on the picket line.
Last week, UNITE HERE Local 11, a union that represents service and hospitality workers across the American Southwest, asked 15,000 of its southern California members to vote on a strike authorization. Workers overwhelmingly voted to authorize the strike, with 96% of Local 11 members voting in favor. The strike authorization is a significant step towards convincing the region’s hotel operators to consider pay increases for their workers, many of which struggle to make ends meet.
Local 11’s move comes less than a month before 62 of its contracts with Southern California hotels are set to expire. For months, the union and hotels have attempted to negotiate new agreements but have failed to reach a consensus on Local 11’s proposals, including pay increases for its members and other provisions meant to address employees’ healthcare, pensions, work eligibility, and issues related to understaffing.
As California has emerged from the pandemic, the hospitality and tourism industries have roared back, with visitor spending expected to set new records in 2023. However, the workers that form the backbone of the two industries have largely not reaped the rewards of rebound. Rent hikes and increased living costs continue to force many hotel workers out of their homes while their employers fail to address persistently low wages.
Teukolsky Law stands in solidarity with Southern California’s hotel workers and commends the work Local 11 is doing to ensure workers are fairly compensated and protected heading into the summer.
NLRB levels Complaint Against USC, Pac-12, and NCAA, bringing a multibillion-dollar enterprise one step close to unionization.
Last week, the National Labor Relations Board (NLRB) alleged in a complaint that the University of Southern California (USC), the Pac-12, and the National Collegiate Athletics Associations (NCAA) are joint employers and willfully misclassify their football players, men’s basketball players, and women’s basketball players as “non-employee student athletes” to discourage them from engaging in protected activities such as unionization. The complaint calls for USC, the Pac-12, and the NCAA to reclassify those athletes as “employees” in their handbooks and rules.
The employment-status of college athletes is the most pressing issue facing the world of college sports and threatens to upend the foundation of the multibillion-dollar industry. For decades, the NCAA has argued that amateurism - a model in which college athletes get 0% of the revenue generated by their sports – was necessary to maintain the value and integrity of college athletics.
However, as coaching salaries have ballooned and TV deals for college sports approach nearly $10 billion, the amateurism model is increasingly seen as exploitative and has come under increasing scrutiny, leading some experts to expect the model to collapse under mounting pressure in federal courts and state legislatures.
If the NCAA’s amateurism model were to collapse, whether due to the aforementioned pressures or NLRB complaints, the repercussions would be monumental, prompting questions of how to compensate over 500,000 NCAA athletes, 85% of which live below the poverty line.
According to the NLRB’s complaint, a hearing on their case is scheduled for November 7, 2023, in Los Angeles.
Bloomberg Article on Landmark California Supreme Court Case Features Commentary from Lauren Teukolsky
Lauren Teukolsky was quoted in a Bloomberg Law article outlining the issues at stake in Adoph v. Uber Technologies, a closely watched California Supreme Court case set for oral arguments on Tuesday, May 9 at 9:00 a.m. Pacific Time.
The question at the heart of Adolph v. Uber is whether an employee can continue litigating PAGA claims on behalf of her coworkers once the individual component of her PAGA claim has been sent to arbitration, a private, quasi-court forum that is favored by employers.
If the Court rules that such plaintiffs maintain their standing, it would allow employees to continue holding employers accountable for company-wide violations of the Labor Code under the Private Attorneys General Act ("PAGA"), a state law that authorizes employees to collect civil penalties for violations against themselves and their coworkers on behalf of California’s Labor Commissioner, which has struggled to keep up with a backlog of cases for the past several decades.
The Bloomberg article features Ms. Teukolsky’s predictions for how the Supreme Court will likely rule:
“’I would be very surprised if the California Supreme Court chose to eviscerate the PAGA statute,’ said Lauren Teukolsky, founder of Teukolsky Law in Pasadena, Calif.
‘And if they agree with Uber’s position, PAGA would be eviscerated because companies would be able to send individual PAGA claims to arbitration and have the remainder of the PAGA claims, the claims on behalf of others, dismissed,” Teukolsky said. “It is entirely contrary to the stated purpose of PAGA, which is to encourage private attorneys to augment the state’s ability to enforce the labor code.’”
A decision in Adolph v. Uber is expected by August 2023. Oral arguments, which will be held remotely, are scheduled for Tuesday, May 9 at 9:00 a.m. and can be watched via the Supreme Court’s website.
Lauren Teukolsky to Discuss Hot Topics in Employment Settlement Agreements for Labor and Employment Relations Panel
On April 26, 2023, Lauren Teukolsky will discuss hot topics in employment settlement agreements for a program put on by the Southern California Labor and Employment Relations Association (SoCal LERA). Ms. Teukolsky will be joined by fellow panelists Jonathan Judge, a partner at Atkinson, Andelson, Loya, Ruud & Romo, and Jade M. Brewster, an associate at Jackson Lewis. The panel will be moderated by Angela J. Reddock-Wright, a mediator at Signature Resolution.
The webinar’s focus will be confidentiality and non-disparagement provisions in settlements and separation agreements, a subject that has taken on increased complexity in light of the recent McLaren Macomb decision from the National Labor Relations Board.
Ms. Teukolsky’s commentary on the decision was recently featured in an article by Law360. Ms. Teukolsky has also written about employment settlement agreements for Advocate Magazine.
SoCal LERA is a regional chapter of the Labor and Employment Relations Association, an organization where Human Resources professions and attorneys from both sides of the aisle share ideas and learn about new developments and practices in the field.
To sign up for the webinar, click here. To learn more about Ms. Teukolsky and her practice, click here. If you’re an employee and believe you’re being treated unlawfully, click here to get in touch with our office.
Lauren Teukolsky’s commentary was featured this week in a Law360 article discussing the future of non-disclosure agreements (NDAs) in severance agreements in light of the National Labor Relations Board’s recent ruling in McLaren Macomb. In McLaren Macomb, the NLRB found that offering severance agreements to employees that include NDAs and non-disparagement clauses is unlawful because doing so dissuades them from engaging in employee activity that is protected by Section 7 of the National Labor Relations Act, such as discussing their working conditions or pay.
Following the NLRB’s decision, however, some attorneys have expressed skepticism that employers will tailor their severance agreements to comply with the NLRB’s ruling. Ms. Teukolsky discussed her own experience with severance agreements in California following the state’s implementation of laws to restrict the use of NDAs and non-disparagement:
“’After California passed its own restrictions, what I'm seeing is employers will continue to include very broad nondisparagement provisions, and then they'll have a carveout’ stating that nothing in the agreement is intended to violate the law, Teukolsky said. ‘And when I come back and say, 'This nondisparagement is too broad,' they say, 'Well, we have a carveout.’'"
The NLRB decision, along with the General Counsel’s memo about the decision, suggest that carveouts are not sufficient to overcome the chilling effect of NDAs and non-disparagement provisions. The memo states: “It is critical to remember that public statements by employees about the workplace are central to the exercise of employees’ rights under the Act.”
The McLaren Macomb decision is a victory for workers that should be celebrated. Employers act at their peril if they continue to include overly-broad NDAs and non-disparagement provisions in any contract they ask an employee to sign, whether it be an employment agreement signed on hire, a severance agreement offered to a laid-off employee, or a settlement agreement to settle claims that have been filed.
To read the article in its entirety, click here. If you have questions about a severance agreement you’ve received and want to get in touch with our office, click here.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.