Exclusive Q&A On Labour & Employment With Jacqueline Beaumont
Posted: 13th February 2015 08:59
1. Have there been any recent regulatory changes or interesting developments regarding labour and employment laws in your jurisdiction?
California’s Supreme Court recently approved the use of class action waivers in employment arbitration agreements, but denied the application of such waivers to California’s Private Attorney General Act (“PAGA”.). PAGA is a 15 year-old law that permits an employee, on behalf of other aggrieved employees and the State, to collect penalties for Labor Code violations. The courts have ruled that a PAGA employee need not meet class action certification requirements, but are still creating new law defining discovery and trial burdens in such actions. Expect significant developments in PAGA law as plaintiff’s attorneys seek to push its limits.
2. Are you experiencing any particular trends in disputes and conflicts in the workplace?
Wage-and-hour litigation surrounding California’s Private Attorney General Act, as discussed above, is a key trend, especially since PAGA potentially allows plaintiff’s attorneys to recover fees. In addition, disability leave litigation has been popular, in part because California and federal leave laws are complex. California allows claims based on disability discrimination, a failure to provide reasonable accommodation for a disability, a failure to engage in the required interactive process for determining accommodations prior to termination, harassment, and retaliation for requesting leave. A final trend is the filing of claims by employees hired through temporary staffing agencies against the client employer.
3. Does the current regulatory system offer adequate protection against discrimination in the workplace?
The employers I work with take discrimination seriously. Virtually all companies have internal anti-discrimination policies and provide employees the opportunity to address discrimination before escalating the dispute to a regulatory body or the courts. Most employers have open-door policies, formal reporting mechanisms, and even anonymous ethics hotlines. California also requires its employers to provide manager harassment training, which just expanded this year. In California and under federal law, employees must first file a discrimination complaint with the appropriate regulatory body before a civil lawsuit takes place. This provides opportunities for pre-litigation mediation, which also exist in the arbitration context.
4. What particular skills are most in demand and which job roles are hardest to fill?
Today’s fast-paced, high-tech world makes multi-tasking and prioritization necessary skills for almost every job. These skills are particularly required at the higher levels, and in the many positions where employees are now required to wear multiple “hats” due to reductions in force. I have lately seen terminations of employees who perform tasks generally well, but whose inability to prioritize makes them ineffective at performing well at the level required. Such employees may turn to legal action when terminated. Employers’ job descriptions should articulate the level of performance required, and employers should set appropriate expectations with job applicants and employees.
5. How has the increased use of autonomous technology impacted labour and employment?
California culture has always embraced new technologies. Silicon Valley and now San Francisco and “Silicon Beach” in Santa Monica are leading the charge both in developing and implementing increasingly autonomous technologies. This is not always bad news for employees. Instead, I see workers in computerized fields being required to obtain more education and skills, to practice at a higher level in their occupation. On the employer side, regular auditing of exemption status is key, because professional employees whose jobs become automated may no longer be using sufficient independent judgment and discretion to be exempt from wage and hour laws.
6. What should be included in a well-drafted employment contract?
In California, where all employment is presumed at-will unless a contract exists to the contrary, I advise most employers to keep most employees “at will.” This generally reduces company obligations and liabilities. That being said, it is crucial for employers to distribute handbooks, policies, and topical agreements communicating expectations to employees. I advise California employers to include the most detail on the most frequently litigated subjects: (1) overtime, timekeeping policies and meal and rest breaks; (2) trade secret and confidential information; (3) a robust anti-harassment policy that also discusses discrimination, retaliation, and reporting; and (4) disability leaves and accommodations.
7. Can you talk us through the identified issues with zero hour contracts?
This is not an issue in my jurisdiction
8. Can you outline the effectiveness of alternative methods to redundancy, and in the worst case scenario what selection criteria should be applied to identify the employees who will be at risk?
California employers have several options to retain employees, including job transfers, organizational restructuring, and work-sharing. There is also a sanctioned partial benefit program for unemployment insurance if the employer anticipates that the reduction in hours is temporary. If a layoff is anticipated, employers must provide notice under the federal and state WARN Acts. Severance agreements offered to workers over 40 must comply with protections under the federal OWBPA. Lastly, employers should document legitimate business reasons for selection criteria used in a reduction in force, and analyze personnel data for possible disparate impacts on protected classes.
Jacqueline Beaumont is a shareholder at Call & Jensen, a California-based litigation boutique firm. Her areas of expertise include class action wage and hour disputes, where she is currently representing employers in cutting-edge cases under California’s Private Attorneys General Act, and discrimination and retaliation litigation under Title VII and California's Fair Employment and Housing Act. Ms. Beaumont also focuses her practice on employment-based unfair competition litigation, including notable victories defending claims of employee-raiding and misappropriation of trade secrets. She is recognized as a Southern California Rising Star by Super Lawyers. She frequently lectures and publishes articles on the influence of new technologies and social media on employment law matters.