On October 7, 2023, Governor Newsom signed Senate Bill 808 (“SB 808”) into law, which amends the California Health and Safety Code to require the California State University (“CSU”) Chancellor’s Office and each of the CSU system’s 23 campuses to make certain annual disclosures about sexual harassment reports on campus. Specifically, the system will be required to disclose the number of sexual harassment reports they receive each year, how many of those reports resulted in investigations, how long it took the investigations to commence and conclude, and how many investigations triggered hearings and appeals. These annual reports must be posted on the system website for the public to access.

On July 10, 2023, Governor Newsom signed Senate Bill 132 (“SB 132”). SB 132 extends California’s $330 million Film and Television Tax Credit program by five years. An important change in the law allows production companies receiving the tax credit to submit for a refund if the credit exceeds the company’s state tax liability.

Under existing law, California employers may seek a restraining order when one or more of their employees have suffered unlawful violence or a credible threat of violence connected to the workplace. Now, Senate Bill 428 (“SB 428”) enables employers to seek harassment-related restraining orders as well.

For decades, California’s farmworkers could only gain union recognition through on-site elections. Last year, Governor Newsom signed a law allowing farmworkers to form a union through mail-in ballot elections or through card-check agreements. But he did so on the condition that the United Farm Workers and California Labor Federation agree to roll back the mail-in ballot option.

California law already says that noncompete agreements in an employment contract are void. But some employers put noncompetes in their contracts anyway. Employers know that a noncompete agreement might coax workers to stay in their jobs—even though it has no legal effect. It’s a misleading and unfair way to do business.

When is the action of one employee protected, concerted activity? The National Labor Relations Board answered this question in Miller Plastic Products, Inc. 372 NLRB No. 134 (Aug. 25, 2023) by returning to the totality of the circumstances test for determining whether an employee acting on their own is engaged in protected, concerted activity.

ExxonMobil Research & Engineering Company, Inc., 372 NLRB No. 138 (Aug. 25, 2023) arises out of bargaining a successor collective bargaining agreement (“CBA”) between ExxonMobil (“Exxon”) and the Independent Laboratory Employees Union.  Prior to the start of negotiations, Exxon subcontracted out bargaining unit work, changed the process for approval of paid time off (“PTO”) requests for union-represented employees, offered 8 weeks of paid parental leave to all non-union employees, and unilaterally changed performance evaluation methods for union-represented employees.  The Union filed unfair labor practices alleging numerous violations, including that Exxon engaged in overall bad faith bargaining.

The Board recently issued a decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying what needs to be proven to show that an employee was disciplined on account of union or protected concerted activity.

On August 26, 2023, the National Labor Relations Board (“NLRB”) issued American Federation for Children, Inc., 372 NLRB No. 137 (2023) restoring protections for employees who show support for nonemployees, including unpaid interns working alongside them.

In Hood River Distillers, 372 NLRB No. 126 (2023) the National Labor Relations Board retroactively applied a prior, more union-friendly standard for dues check off provisions.

On August 26, 2023, the NLRB issued Wendt Corporation overruling Raytheon Network Centric Systems, in which the Trump Board broke with decades of established precedent by drastically reinterpreting the rule established by the Supreme Court in NLRB v. Katz. Four days later, the NLRB announced Technocap LLC, 372 NLRB No. 136, which overrules the aspects of Raytheon that Wendt did not address.  The NLRB’s restoration of the Katz rule eliminates a major employer-friendly loophole and represents a significant victory for organized labor.

Breaking news: two major developments last week will reshape the legal processes for organizing a union in the private sector.

On August 25, 2023, the National Labor Relations Board issued a landmark decision that promises to speed organizing and deter employers from committing unfair labor practices once a union demands recognition.

The Private Attorneys General Act (“PAGA”), California Labor Code §§ 2698-2699, allows employees to sue employers for wage and hour violations and recover monetary penalties for those violations. Employees may bring PAGA claims for violations of their own wage-and-hour rights and on behalf of other employees. But last year, the U.S. Supreme Court limited the ability to bring such claims in Viking River Cruises. In Viking River Cruises, the high court held that an employer and employee could waive the employee’s right to bring PAGA claims to court, and instead, arbitrate them. The question of whether bringing wage and hour claims in arbitration, as compared to in court, favors workers or only employers remains an ongoing hot-button issue.

The Davis-Bacon and Related Acts (DBRA) require contractors performing work on federally funded or assisted contracts for the construction, alteration, or repair of public buildings or public works above $2,000 to pay their laborers and mechanics no less than the locally prevailing wages and fringe benefits as determined by the Secretary of Labor.

A crucial question many workers and labor unions face is whether a worker is an employee or an independent contractor. The question arises because employees receive unemployment benefits, and they are protected under wage and hour laws, workers compensation, and workplace discrimination laws. Employees are also covered by the National Labor Relations Act, meaning they have a legal right to organize unions. Independent contractors do not receive these same protections.

In Stericycle Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board established a new union-friendly standard for evaluating employer handbooks and work rules. Under the new standard, the Board must analyze whether the work rule has a reasonable tendency to chill employees from engaging in protected union-related activities. In doing so, the Board first must interpret the work rule from “the perspective of the reasonable employee who is economically dependent on her employer” and who is contemplating how the rule might impact their protected rights.

In Lion Elastomers LLC II, 372 NLRB No. 83 (2023), the National Labor Relations Board overruled a bad anti-Union decision from 2020 and restored the long-established “setting-specific” standard for evaluating cases where employees are disciplined for alleged misconduct that occurs while the worker is engaged in protected activity.

Under the “setting-specific” standard, the Board evaluates the severity of an employee’s misconduct and the context in which it took place under three different tests

In August 2022, President Biden signed the transformational, $740 billion Inflation Reduction Act (IRA). The IRA provides massive tax credits for energy efficient buildings, home, and EV charging stations—if the contractor provides good jobs for their workers. Most of these tax credits are not available unless contractors: (1) offer jobs to apprentices, and (2) pay prevailing wages. Contractors can receive five times the base tax credit for projects that meet these requirements.

In a February 2023 decision, the NLRB overruled two Trump-era rulings that permitted employers to offer employees severance agreements that require employees to broadly waive their rights under Section 7 of the NLRA, and had also limited the Board’s review of severance agreements to the circumstances under which the severance agreement was presented to the employees. In the decision in McLaren Macomb, the NLRB returned to prior precedent of reviewing the language of the proffered severance agreement to determine whether the language would have a reasonable tendency to interfere with, restrain, or coerce employees’ exercise of their Section 7 rights.

In November 2022, President Biden’s appointees at the National Labor Relations Board (NLRB) proposed the Fair Choice and Employee Voice rule to reestablish the “blocking charge” policy for private sector employees, and other changes related to recognition. Former president Donald Trump’s NLRB appointees changed the blocking charge policy in 2020. Before the 2020 change, the rules had been in place since the 1930s.