14 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Removing IWC licenses to pay less to individuals with disabilities. The Industrial Welfare Commission is prohibited from issuing special licenses that authorize the employment of a person with a disability for less than the minimum wage. (See § 7.2.) Warehouse distribution center quotas. Employers with over 100 California employees at a single warehouse distribution center—or with 1,000 or more California employees at multiple warehouse distribution centers—must now give each nonexempt employee (including employees of third-party employers, temporary services, or staffing agencies) a written description of any quota that applies. (See § 7.22.3) Hospitality preferential hiring for pandemic layoffs. Certain hospitality employers—hotels, private clubs, event centers, and airport hospitality services—and their successor employers, must offer preferential hiring to employees laid off because of the pandemic. (See § 7.23.2.) Emailing required postings to employees: Employers may now distribute required notices and posters as an email attachment, though there remains a duty to physically display the required posting. (See § 9.2.1) Cal/OSHA citation authority expansion and new protection. There are now two additional categories of violations for which Cal/OSHA can issue citations: (1) “Enterprise-wide Violations” and (2) “Egregious Violations; and, new agricultural workers wildfire smoke protections. (See § 14.18) AB 5 Exemptions: Newspaper distributors and carriers and manicurists: Exemptions from the application of the ABC test for independent contractor status for construction trucking subcontractors, newspaper distributors working under contract with a newspaper publisher and for newspaper carriers and for licensed manicurists have been extended to January 1, 2025. (See § 19.7.) Retailer burdens. Large retail department stores now must display a “reasonable selection” of genderneutral items for children; and retailers are now jointly and severally liable for brand guarantors and garment manufacturers. (See § 20.10.) Judicial Developments Here are highlights from decisions rendered in 2022 and 2023 by courts applying California law, up until the time this volume went to press (July 2023). Judicial Developments Create More Challenges for Employers During 2022 and 2023 California courts continued the general trend of expanding employer liability to employees. Labor Code whistleblower claims are not subject to burden-shifting analysis. Labor Code section 1102.5 claims are evaluated under the framework delineated in Labor Code section 1102.6, rather than under the U.S. Supreme Court’s 1973 burden-shifting framework outlined in McDonnell Douglas Corp. v. Green. (See § 3.5.1.) An at-will employer cannot defraud employees into accepting employment. At-will employment does not give an employer free reign to make false representations to a prospective employee regarding the kind, character, or existence of work in order to induce the employee to accept employment, but the atwill employee cannot rely on any promises about how long he or she will be employed. (See § 5.9.1.)
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