Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 15  Second-arbitrator provision deemed unconscionable. The Court of Appeal held that a second- arbitrator provision that neutrally permitted either party to seek review of an arbitration award without regard to any monetary threshold was unconscionable. (See § 5.2.5.)  Statutes of limitations run from employee discovery of basis for claim. The Court of Appeal held that the statutes of limitations on contractual and statutory discrimination claims ran from the employee’s knowledge of the alleged wrongs. (See §§ 5.7.5.)  Joint employment criteria expanded for franchisors. The Court of Appeal held that when a franchisor exerts substantial control over a franchisee’s finances, procedures, and hiring decisions, the franchisor may be a joint employer that bears the risk of the franchisee’s inability to pay its employees’ wages. (See § 5.11.3.)  Proper venue for PAGA action not limited to employer’s principal place of business or employee’s place of work. The Court of Appeal held that venue is proper in any county where alleged Labor Code violations occurred because PAGA plaintiffs are not suing on behalf of themselves but as the State’s proxy on behalf of all aggrieved employees. (See § 5.15.)  Appellate costs may be awarded to an employer only when the underlying FEHA claim was frivolous . The California Supreme Court held that costs on a successfully defended appeal cannot be awarded unless the underlying claim was objectively groundless. (See § 6.13.)  Failure to pay meal, rest, and recovery premiums by the end of employment can trigger waiting- time penalties. The California Supreme Court held that the extra hour of pay owed for a meal-break violation is a “wage” that must be paid by the end of employment. (See § 7.5.3.)  Employers may not round time to establish compliant meal periods. The California Supreme Court held that even if a rounding policy generally benefits employees, the law requires “premium pay for any violation, no matter how minor.” (See § 7.8.5.)  Premium pay must be calculated based on regular rate. The California Supreme Court held that the extra hour of pay provided for non-compliant rest breaks must be calculated in the same way as the regular rate for overtime. (See § 7.10.4.)  Premium pay must be reflected on wage statements . The California Supreme Court held that the extra hour of pay provided for non-compliant meal periods or rest breaks must be shown on employees’ wage statements. (See §§ 7.10.4, 16.3.1.)  California’s Labor Code applies to flight attendants. The Ninth Circuit held that the Labor Code applies to flight attendants working only 31.5% of their time in California because no other single state accounted for more than 50% of the attendants working time. (See § 7.24.1.)  CalSavers survives ERISA preemption claim. The Ninth Circuit held that the state-managed individual retirement account program is not preempted by ERISA because it does not require employers to establish or maintain their own ERISA plans. (See § 8.6.)  Employee retrieval of otherwise available company information does not exceed authorized access. The U.S. Supreme Court held that an employee who accesses company information available to the employee, and therefore not off-limits, does not “exceed authorized access” within the meaning of the Computer Fraud and Abuse Act. (See § 12.6.)