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

60 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com Similar provisions appear in California’s pay-equity law. Under these provisions, employers must not forbid employees to (1) disclose their own wages, (2) discuss the wages of others, (3) inquire about other employees’ wages, or (4) aid or encourage other employees to exercise those rights. The Legislature added an afterthought for those employees who do not want to discuss their own or others’ wages: “Nothing in this section creates an obligation to disclose wages. ” 14 3.3 Disclosure of Working Conditions California employers must not forbid employees to disclose information about working conditions. More specifically, as to working conditions, an employer must not (a) require an employee to refrain from disclosing information, (b) require an employee to waive the right to disclose information, or (c) discharge, formally discipline, or otherwise discriminate against an employee for disclosing information . 15 T he Ninth Circuit has indicated that this law may invalidate a clause in an arbitration agreement forbidding the sharing of information about the specifics of an arbitration case . 16 This law may be preempted by federal labor law to the extent that it concerns concerted complaints about working conditions and not health or safety complaints . 17 This California law runs roughly parallel to NLRA law that empowers employees to engage in concerted activity for their mutual protection. The NLRB once ruled that employers run afoul of the law when they require employees to observe confidentiality during workplace investigations , 18 but in 2019 the NLRB reversed course, to close a previous gap between California law and federal law . 19 W e expect another reversal in NLRB-made law as the composition of the NLRB changes during the current federal administration. In addition, when an employer uses a nondisparagement provision, or a clause that otherwise restricts an employee’s ability to disclose information related to conditions in the workplace, the agreement shall include a phrase along the lines of, “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct you have reason to believe is unlawful. ” 20 A n agreement that fails to adhere to this requiremenet is contrary to public policy, and shall be unenforceabl e. 21 3.4 Right to Designate Counsel Under Labor Code section 923, California employers must not discriminate against an employee for designating a representative to bargain over conditions of the employee’s employment . 22 Courts have construed Section 923 to empower an employee to designate an attorney to bargain with the employer with respect to conditions of employment, and to prohibit an employer from firing an employee who has made that designation . 23 T he Court of Appeal has held that an employer’s refusal to deal with its employee’s workers’ compensation attorney raised a triable issue as to whether the employer had failed to comply with its duty, under the FEHA, to engage in an interactive process to see if it was possible to accommodate the employee’s disability . 24 Nonetheless, a California employer may still insist on dealing directly with an employee, without the presence of counsel when investigating employee misconduct or assessing employee job performance . 25 3.5 Employee Whistleblowing California employers must not retaliate against employees who have—or are perceived to have—engaged in whistleblowing activities protected under Labor Code sections concerning working conditions or pa y. 26