An excerpt from the article which can be viewed on the Los Angeles Times website, Emil Davtyan, Todd B. Scherwin and Carney R. Shegerian Share Insights on Labor & Employment Law, or in our Archived PDF.
Q: What were the most meaningful changes to labor and employment law and policy last year?
Carney R. Shegerian, Founding Partner, Shegerian & Associates: In California, the minimum wage increased to $15 for employers with 26 or more employees and $14 per hour for companies with 25 or fewer employees, addressing the long and deep-rooted social and economic issue where the cost of living expenses have dramatically outpaced wage growth. Employee and consumer protections have had a significant contribution to making California one of the largest economies in the country. If we want our state to continue to thrive and attract top performers, we must ensure that we give everyone a chance to earn a fair wage.
Q: How would you describe the current climate for employee whistleblowers in 2023?
Shegerian: 2023 is a continually improving and favorable climate for employee whistleblowers in California. In 2022, the California Supreme Court and Appellate Courts broadly construed whistleblower provisions and retaliation protections in a number of cases. Coupled with a more just and protected legal environment, juries also have weighed in on whistleblowers’ societal value, as a bulwark against illicit and or dangerous conduct. In Rudnicki v. Farmers, a Los Angeles jury awarded a whistleblower $155.4 million after showing that his role as a potential witness in a sex bias class action resulted in retaliation against him and ultimately his firing. The best protection for employers against these types of awards is to avoid illegal conduct altogether and encourage a system where such instances are not covered up but instead brought to light as lessons of prevention. In the long run, both companies and societies will benefit.
Q: How do you advise employers wanting to do a better job with diversity, equity and inclusion policies?
Shegerian: More than ever, both consumers and potential employees are scrutinizing business diversity practices and programs. Diversity and inclusion programs have become the baseline for organization employment practices, and virtue signaling is quickly recognized. Employers seeking to attract top talent and customers must prioritize diversity, equity and inclusion policies through unique programs fit to match their industry. A one-size-fits-all program reveals a program’s inferiority to the bottom line. Employers must also recognize that the bottom line can be fundamentally improved through novel diversity programs through diverse thought and a widened, loyal customer base.
Q: What trends are you seeing related to arbitration agreements in the employment context?
Shegerian: A 9th Circuit Court of Appeals panel recently ruled that California’s bill prohibiting employers from requiring job applicants and workers to sign arbitration policies was preempted by the Federal Arbitration Act. While this ruling was a blow to both employee rights and the fundamental American right to a jury trial, Congress, in 2022, notably carved out in an exception for sexual harassment and sexual assault cases by passing a bill guaranteeing victims of such workplace harassment the right to pursue lawsuits in court. While arbitration can be helpful for disputes where both parties are entities with comparable resources, mandatory arbitration, particularly in the employment and consumer context, serves to exacerbate inequity, weaken constitutional rights, inhibit access to justice, and punish the wronged.
Q: How does the California WARN Act help employees that have been terminated?
Shegerian: The California WARN Act is a state law that requires covered employers to provide employees with at least 60 days’ notice before implementing a mass layoff. Its purpose is to protect employees who have been laid off or terminated, due to a covered event, by providing advance notices for employees to prepare for their job loss and to seek new employment. If an employer violates the California WARN Act by failing to provide the required notice, affected employees may be entitled to receive back pay and benefits for up to 60 days. Employees who have been terminated in violation of the California WARN Act may also have other legal claims, such as claims for wrongful termination, discrimination, or retaliation. These claims can provide additional remedies for damages for lost wages, emotional distress, or other harm caused by the termination.
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