The California Court of Appeal in the Fourth Appellate District recently held that a nursing student who was required to participate in clinical rotations was protected by FEHA when her rotation supervisor allegedly harassed her. 

The case focused on the fact that, in addition to employees, FEHA protects “unpaid interns.”  The employe – a community college – argued that the plaintiff was a student, not an unpaid intern, and therefore not protected by FEHA.  The trial court agreed.

In reversing, the Court of Appeal pointed to various expressions of legislative intent that “unpaid interns” and “students” often overlap, holding:  “[A] postsecondary nursing student like [Plaintiff] doing a clinical rotation at a hospital qualifies as an ‘unpaid intern’ under FEHA.  Her student status does not deprive her of FEHA protection.”   

Note:  after the plaintiff complained, the College investigated and confirmed that her rotation supervisor had been sexually harassing her and another female student.

The case establishes an important protection for a vulnerable group of student interns who often (as in the present case) face a power imbalance with supervisors that creates risk of sexual harassment.  The case is Walton v. Victor Valley Community College District, and is available here.

Posted by William Jhaveri-Weeks and Sofia Schnurer

Jacqueline Crispino and Sarah Abraham have published an article in Law360 and Lexis Practical Guideline on recent amendments to California's Equal Pay Act and Pay Transparency Act. These amendments create new employer obligations with respect to pay for female and nonbinary employees. Employers who do not take steps to comply face exposure to claims under the revised law. The article can be found here. 

On October 8, 2025, Governor Gavin Newsom signed Senate Bill 642, which amends California’s pay transparency law (Labor Code Section 432.3) and the California Equal Pay Act (Labor Code Section 1197.5).  The pay transparency law, originally enacted in 2023, requires employers to disclose the pay scale for open positions to counteract women being offered different pay than men for the same position.  The Equal Pay Act outlaws discrepancies in pay for members of different sexes, races, and ethnicities.  SB 642 continues the effort to reduce the gender pay gap, with the following changes that will go into effect on January 1, 2026:

• Extends the statute of limitations to file an Equal Pay Act claim from two years (or three, for a willful violation) to three years from the date of the last violation, and, significantly, allows workers to recover for a period of up to six years.
• Revises the definition of “wages” in the California Equal Pay Act to mean actual overall compensation, which is crucial when equity and other forms of non-salary compensation are major components of pay.
• Revises the definition of the “pay scale” that must be disclosed to applicants under the pay transparency law to mean what the employer expects to pay for the position “upon hire,” which closes the loophole of employers providing an unhelpfully broad range including what the employee might eventually make in the position.
• Revises existing language to be more inclusive of all genders. The Bill changes binary language in the Equal Pay Act from “the opposite sex” to “another sex.” 

The Bill strengthens protections for women in the workforce and places increased scrutiny on employers to ensure fair pay practices for all sexes across the board. The Bill was co-sponsored by the California Employment Lawyers Association (CELA), Equal Rights Advocates, and the Commission on the Status of Women and Girls.

Posted by Netra Char Bhat

Sarah Abraham and William Jhaveri-Weeks recently published an article in Plaintiff Magazine discussing the rights of employees in California to engage in political activity.  The article may be of interest to employees and their attorneys confronting negative employer actions based on an employee's political activities.

The Ninth Circuit held yesterday that a warehouse worker in an Adidas distribution warehouse in California was not subject to arbitration because he was engaged in foreign or interstate commerce.  Key facts included that the employee transported packages to and from storage racks, helped prepare packages for shipment, and played a necessary role in facilitating the continued movement of goods that were still moving in interstate commerce when the employee interacted with them.  The case is an important reminder to employment lawyers to consider whether an employee who has signed an arbitration agreement falls within this exception to the Federal Arbitration Act.  The case, Ortiz v. Randstad Inhouse Services, LLC, No. 23-55147 (9th Cir. Mar. 12, 2024) is available here.

Today, the California Supreme Court settled a split of appellate court authority by concluding that trial courts in California do not have the authority to strike PAGA claims on manageability grounds, including based on class action manageability requirements.  The ruling is a positive development for employees seeking to enforce the Labor Code through PAGA.  The opinion, Estrada v. Royalty Carpet Mills, Inc. (January 18, 2024) (S274340) is available here.

The Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections Act (“PUMP Act”) are new federal laws that create additional protections for pregnant and lactating employees, expanding upon existing protections under Title VII, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and the Fair Labor Standards Act (“FLSA”).  The new laws clarify existing rules and are a positive development for pregnant and lactating employees, but California law still has stronger protections for this group of workers.

Pregnant Workers Fairness Act (PWFA). Effective June 27, 2023, the PWFA requires employers with at least 15 employees to provide reasonable accommodations to pregnant employees and applicants with limitations related to pregnancy, childbirth, or related medical conditions, unless providing an accommodation would cause undue hardship.  Previous rules required employers to provide reasonable accommodations only when the pregnancy-related condition qualified as a disability under the ADA.  The PWFA also protects pregnant employees who are temporarily unable to perform essential job functions, whereas the ADA only protects employees able to perform essential job functions with or without reasonable accommodations.  The Equal Employment Opportunity Commission has provided FAQs about the PWFA and is expected to issue regulations.  A copy of the PWFA is available here.

Existing California law has more stringent rules than the PWFA.  California’s Pregnancy Disability Leave (“PDL”) law applies to employers with 5 or more employees, does not have an undue hardship exception, and specifies that employers must provide an unpaid leave of absence, a job transfer to an existing open position, or a reasonable accommodation if the employee’s doctor deems the accommodation “medically advisable.”

Providing Urgent Maternal Protections Act (PUMP Act) The PUMP Act expanded existing federal protections that required employers to provide break time and a private location for lactating employees to express breast milk.  Whereas prior law (under the Affordable Care Act of 2010) only applied to employees classified as nonexempt under the FLSA, the PUMP Act expands these protections to exempt/salaried employees.  The PUMP Act also creates a private right of action, with the requirement that employees seeking to enforce their right to a private location must provide employers notice and an opportunity to correct violations.  The existing rules are otherwise unimpacted:  The FLSA requires employers to provide break time “each time [a lactating] employee has need to [breastfeed]” for one year after the child’s birth, and to provide a functional private location other than a bathroom.  The PUMP Act took effect on December 29, 2022, and employees could begin bringing private lawsuits as of April 28, 2023.  A copy of the PUMP Act is available here.

California Labor Code section 1030 requires employers to allow a reasonable time for lactating employees each time the employee has a need to breastfeed.  The state law does not contain the one-year limitation on the employer’s obligation to provide break time.  California law also does not require the employee to provide prior notice to the employer before filing a lawsuit. 

​Posted by Ally Girouard

Today the Ninth Circuit Court of Appeal struck down a 2020 California law that forbade employers from requiring employees to waive their right to file certain employment law claims in court, including claims for discrimination or violation of state wage laws.  The clear intention of the law (known as Assembly Bill 51, or AB51) was to prevent employers from forcing arbitration agreements on employees, and the Ninth Circuit held that the Federal Arbitration Act conflicted with and preempted AB 51.  The law had been drafted in an attempt to avoid such a preemption decision – an attempt now proven to be in vain.  The decision likely puts to rest more than two years of uncertainty about the state of the law.

In response to a suit by the United States Chamber of Commerce, a federal district court issued a preliminary injunction suspending enforcement of the law shortly after it was passed.  A Ninth Circuit panel reversed in part in September 2021, vacating the preliminary injunction as to the key portion of the law but leaving it in place with respect to the portion that imposed criminal and civil penalties for its violation.  See Chamber of Comm. of the U.S. v. Bonta, 13 F.4th 766 (9th Cir. 2021).  Judge Ikuta, who has authored key Ninth Circuit decisions protective of arbitration, dissented.  The Chamber of Commerce petitioned for a rehearing en banc, and the panel put the petition on pause to await the U.S. Supreme Court’s decision in Moriana v. Viking River Cruises, Inc.  After the Viking River opinion came out, the panel voted to withdraw its September 2021 opinion, with Judge Fletcher joining Judge Ikuta in the order.  Thus, it was perhaps not a surprise that in today’s opinion, Judge Fletcher changed positions and joined the opinion authored by Judge Ikuta. 

Today’s opinion relied on U.S. Supreme Court precedent from the past ten or so years that has greatly expanded the role of arbitration agreements in employment and consumer disputes.  Under those authorities, Judge Ikuta’s opinion holds that AB 51 is void “[b]ecause the FAA’s purpose is to further Congress’s policy of encouraging arbitration, and AB 51 stands as an obstacle to that purpose.”  The court rejected arguments from the State based on the legislature’s explicit attempt to avoid preemption when drafting the statute – i.e., the law was drafted to forbid parties from entering into agreements that waive the judicial forum, but it did not actually render such agreements unenforceable.  The Ninth Circuit responded that “AB 51’s penalty-based scheme to inhibit arbitration agreements before they are formed” is the type of device “evincing hostility toward arbitration that the FAA was enacted to overcome.”
​
In dissent, Judge Lucero pointed out that the Supreme Court “has never held nor implied that employers may require arbitration as a condition of employment,” and stated that AB 51 merely codified the noncontroversial principle that “arbitration is a matter of contract and agreements to arbitrate must be voluntary and consensual.”  The late Justice Ginsburg pointed out in powerful dissents in some of the cases relied on by Judge Ikuta that the FAA was not intended by Congress to have the kind of power that the Supreme Court has given it in recent years.  Given the make-up of the Supreme Court, chances of reversal of today’s decision seem small.

The decision, Chamber of Commerce v. Bonta, No. 20-15291 (Feb. 15, 2023), is available here.

Posted by Ally Girouard and William Jhaveri-Weeks

On September 27, 2022, in an ongoing effort to combat gender-based pay inequity among California workers, Governor Newsom signed S.B. 1162, creating new pay disclosure and reporting requirements for employers.  According to data from the U.S. Bureau of Labor Statistics, women in California make 88 cents for every dollar a man makes for the same work, and the wage gap is greater for women of color.

The new law requires employers with 15 or more employees to include a pay scale in any job posting and to provide a pay scale to current employees upon request.  A pay scale is the “salary or hourly wage range that the employer reasonably expects to pay for the position.”  The law also requires all employers to maintain records of job title and wage history for each employee until three years after the end of employment, and the Labor Commissioner has authority to inspect these records to determine if there is a “pattern of wage discrepancy.”  If an employer fails to comply, an aggrieved party may file a complaint with the Labor Commissioner or a civil action seeking injunctive relief, and the Labor Commission may impose a civil penalty ranging from $100 to $10,000 per violation.  The failure to maintain the required records creates a rebuttable presumption in favor of the aggrieved party’s claim.

S.B. 1162 also builds on an existing law that requires companies with more than 100 employees to provide annual reports to the Civil Rights Department (“CRD,” formerly the DFEH) containing pay data organized by establishment, job category, sex, race, and ethnicity.  The new law expands the categories of information that companies must include in their annual reports.  For instance, employers must now provide the mean and median hourly rates for each combination of race, ethnicity, and sex within each of ten job categories, such as executive-level employees, laborers, and service workers.  The CRD can seek a court order requiring compliance, and a court may impose civil penalties of up to $100 per employee per violation, and up to $200 per employee for continual violations.

S.B. 1162 amends Labor Code section 432.3 and Government Code section 12999, and takes effect January 1, 2023.

Posted by Ally Girouard