Employment attorney Curt Surls comments on an ongoing lawsuit between the U.S. Justice Department and the State of California and its effect on Assembly Bill 450 (“AB 450”)


Veteran employment attorney Curt Surls comments on an ongoing lawsuit between the U.S. Justice Department and the State of California and its effect on Assembly Bill 450 (“AB 450”).

              California’s AB 450, which went into effect at the beginning of 2018, prohibits employers in California from taking certain actions in an effort to ameliorate the Trump Administration’s immigration enforcement at the work place.
              AB 450 prohibits employers from granting access to non-public areas of a business to immigration enforcement officials without a judicial warrant.  It also prohibits employers from providing immigration enforcement officials with employee’s employment records without a judicial warrant, except for I-9 audits.  Employers must also notify employees of any I-9 audits within 72 hours of receipt of notice of inspection and also notify any affected workers of any findings by ICE that specifies that the employee has immigration status issues.  Lastly, employers may not reverify I-9s unless required by federal law.
              In a lawsuit challenging several California statutes, the Eastern District of California ruled on United States’ motion for preliminary injunction on AB 450 in July of 2018.  With respect to provisions of the bill prohibiting employers from voluntarily consenting to grant access to immigration enforcement officials, the court ruled that AB 450 was not preempted by federal immigration law, but still superseded by the Supremacy Clause due to intergovernmental immunity doctrine.  “Even though these two subsections of AB 450 interfere with immigration enforcement’s historical practices, the Court hesitates to find the statutes preempted. In preemption analysis, the Court presumes ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” (internal quotation marks omitted).  The court went on to explain that “[u]ltimately, however, the Court need not resolve the preemption issue because Plaintiff is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine. The doctrine applies in these circumstances even though the laws regulate employers and not the Federal Government directly.”  Thus, the court found “that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government.”
              The court, however, did not find that the notice provisions of AB 450 to be preempted or superseded by federal law.  Unlike the prohibition against voluntary cooperation, nothing in the notice provisions would prohibit employer from cooperating or working with the federal government.  The ban on reverification, however, was enjoined as it appeared to obstruct the purpose of federal immigration law.  
              Although these are the district court’s rulings on preliminary injunction, it should be a good indication on how the court intends to rule on the permanent injunction.  The case is likely to continue on appeal, however, thus it may be sometime until the dust finally settles on AB 450.  The district court case in the Eastern District of California is United States v. California, 2:18-cv-490-JAM-KJN.


*** Lawyer Curt Surls specializes in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: www.curtsurlslaw.com; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33

Employment Attorney Curt Surls comments on recently passed legislations in California to strengthen protection against Sexual Harassment in the Workplace


Experienced Employment Attorney Curt Surls comments on recently passed legislations in California to strengthen protection against Sexual Harassment in the Workplace

California Governor Jerry Brown recent signed four bills that toughens the protection against sexual harassment in the workplace.  The bills were part of a legislative package that received strong support from the entertainment industry, which had to deal with numerous cases of highly publicized cases of sexual misconduct in recent years.

Senate Bill 820 deals with confidentiality provisions in settlements relating to sexual misconduct.  Specifically, settlement agreements “that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action . . . is prohibited”, if such agreement is regarding sexual assault, sexual harassment, workplace sexual harassment or discrimination, or sexual harassment or discrimination by owner of housing accommodation.  The bill also prohibits courts from entering any order that prohibits the disclosure of such information.  Interestingly, the bill does contain an exception that allows the claimant to request the inclusion of a confidentiality provision to keep such information private.  While the purpose of such exception is understandable, it remains to be seen as to whether the exception could eventually swallow the whole, especially if most defendants or accused will simply require the claimant to request such a confidentiality provision as a condition of settlement.

Senate Bill 826 requires California public companies to have at least 1 female board of director by end of 2019.  Then, by 2021, any public company with 5 board of directors must have at least 2 female directors and any public company with 6 or more board of directors must have at least 3 female directors.  The presence of female decision makers on the board have been advocated by sexual harassment experts as a way of meaningfully impacting the corporate response to sexual harassment and discrimination problems.
Senate Bill 1300 and 1343 seek to broaden the scope of protection by sexual harassment laws.  Specifically, Senate Bill 1300 strengthens employer liability where sexual misconduct is committed by independent contractors and non-employees in the course of business.  This was viewed as a very important measure by the entertainment industry.  Senate Bill 1343 strengthens employer requirements pertaining to sexual harassment training.

California’s legislative actions are in line with a growing trend among states across the United States.  Many states are enacting or amending laws to strengthen the protection against sexual harassment in recent years. 
About Curt Surls, Employment Lawyer in California

About Curt Surls

Curtis Surls is an Attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties.

Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/






*** Curt Surls specializes in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: www.curtsurlslaw.com; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33

Employment attorney Curt Surls comments on a recent U.S. Supreme Court opinion issued in Epic Systems Corp. v. Lewis



Employment attorney Curt Surls comments on a recent U.S. Supreme Court opinion issued in Epic Systems Corp. v. Lewis

In his first article in his series of instructional articles, Employment Lawyer Curt Surls reviews a recent Supreme Court case that reverses NLRA precedent

              U.S. Supreme Court recently issued an opinion that reverses Obama era National Labor Relations Board’s interpretation of the National Labor Relations Act (hereinafter “NLRA”) that individualized arbitration provision in employment contracts were not enforceable.
              In Epic Systems Corp. v. Lewis, the Supreme Court addressed whether employment contract provision requiring individual arbitration between the employer and employee, instead of collective or class action, is enforceable.  In doing so, the opinion also decides two other cases presenting substantially the same issue, Ernst & Young, LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc.  Ordinarily, Federal Arbitration Act requires that courts recognize and enforce the parties’ arbitration agreement.  The exception is where the agreement’s provision violates another federal law.  In these cases, the employees argued that the individualized arbitration requirement violates the NLRA. 
              Majority opinion, written by Justice Gorsuch, noted that “[a]lthough the Arbitration Act and the NLRA have long coexisted—they date from 1925 and 1935, respectively— the suggestion they might conflict is something quite new.  Until a couple of years ago, courts more or less agreed that arbitration agreements like those before us must be enforced according to their terms.”  The Court explained that “[i]n 2012, the Board— for the first time in the 77 years since the NLRA’s adoption—asserted that the NLRA effectively nullifies the Arbitration Act in cases like ours.” 
              Majority opinion noted that the origin of the Federal Arbitration Act was from a perception, perhaps justified, that courts were hostile to arbitration agreements and regularly refused to recognize their validity.  Therefore, Congress passed the Arbitration Act that “establishes ‘a liberal federal policy favoring arbitration agreements.’”  Also, “[n]ot only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.”  Thus, “[o]n first blush, these emphatic directions would seem to resolve any argument under the Arbitration Act. The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely.”
              Employees sought to avoid individualized arbitration due to the Arbitration Act’s savings clause, which “allows courts to refuse to enforce arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract.’”  Employees argued that “illegality under the NLRA is a ‘ground’ that ‘exists at law . . . for the revocation’ of their arbitration agreements, at least to the extent those agreements prohibit class or collective action proceedings. 
              The Court went on to explain that even if the employees’ argument could survive various issues that may not be in their favor, the fundamental problem is that “the saving clause recognizes only defenses that apply to ‘any’ contract. In this way the clause establishes a sort of ‘equal-treatment’ rule for arbitration contracts.”  In essence, “the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.’”
              The Court also rejected the argument that in these circumstances, the NLRA displaces the mandates of the Arbitration Act.  “A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing ‘a clearly expressed congressional intention’ that such a result should follow.”  The employees failed to do so here.  A hardly surprising result, explains the Court, considering that “[t]he notion that Section 7 [of the NRLA] confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years.” 
              Epic Systems Corp. and related cases signals a return to pre-2012 era when individualized arbitration provisions were enforced by the courts.  Unless the law is amended by Congress, employers will be able to contract with employees to foreclose collective or class action when employment contract dispute arises.  The case is Epic Systems Corp. v. Lewis, No. 16-285, decided May 21, 2018.

The full article will be published on the Blog of Mr. Surls at https://CurtSurlsBlog.Blogspot.com


*** Curt Surls is a Specialist in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: https://www.curtsurlslaw.com/; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33

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