Out with the old and in with the new?  Not so fast.  For California employers, it’s more like keep the old and add the new.  And, as so often happens, the new year brings new concerns.  While this list is not exhaustive, California employers should keep their sights on the following new state and local regulations or requirements for 2017:
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As we near the end of this election season, employers should be ready for requests from employees for time off to vote. Polling places are expected to be crowded and employers in many states must accommodate their employees’ right to vote if an employee’s work schedule prevents that person from going to the polls.  (Even in states where it is not legally mandated, considering this election year, and the general feelings around fundamental right to vote, all employers should strongly consider a plan to enable employees to vote if at all possible.)
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As we all learned in school, the First Amendment to the U.S. Constitution prohibits Congress from making laws that “abridge the freedom of speech.”  Employer-created rules and decisions are not acts of Congress, of course, and are not subject to the First Amendment.  So, employers can terminate their at-will employees (all employees without an employment contract) for a good or even a bad reason, including having a bad attitude, right?  Wrong, according to the National Labor Relations Board, at least when that bad attitude expresses itself in voicing concerns about their job.

In another example of the National Labor Relations Board (“the Board”) reaching into a non-union employer’s workplace, it ordered dance production companies that run two Las Vegas shows (Vegas! The Show and The BeatleShow) to reinstate several dancers whose employment was terminated for performance and attitude problems that spanned several years of time.  David Saxe Prods., LLC, 364 NLRB No. 100 (Aug. 26, 2016).  In a letter to one of these employees, the owner of the production companies stated:
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As discussed in Part I (posted earlier this week), a number of states and local municipalities have enacted paid sick leave legislation mandating paid time away from work for employees. While some of these laws are already in effect, others are coming soon.  Employers with operations in the following areas should revisit their policies and make adjustments as needed to plan for these upcoming changes:
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A number of states and local municipalities have recently enacted paid sick leave legislation mandating paid time away from work for employees. Unfortunately for employers, many of these laws contain provisions that conflict with already-enacted paid sick legislation and require an adjustment of current policies, leading to confusion about requirements and entitlements.

Employers with operations in the following areas should revisit their policies and make adjustments as needed to remain current or to plan for upcoming changes:
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Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting.  It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action.
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The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF).   The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade.  Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed.
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Estimates are that nearly 1 in 4 non-union employers require their employees to sign mandatory arbitration agreements as a condition of employment.  These agreements are designed to keep workplace disputes out of courthouses and avoid expensive and protracted litigation.  More and more, these arbitration agreements include clauses that bar employees from pursuing class or collective claims.  Among other perceived benefits, these waivers eliminate the risk associated with high exposure aggregate litigation that plagues many industries.  The enforceability of these agreements is governed by the Federal Arbitration Act (FAA).  Generally speaking, under the FAA, an arbitration agreement can mandate the waiver of a procedural right but not a substantive one.  Until recently, federal courts have largely held that these waivers of class or collective actions were lawful because the right to pursue aggregate litigation under the Fair Labor Standards Act (FLSA) and Federal Rule of Civil Procedure 23 was procedural, not substantive.
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