authentication of electronic signatures. Section 1633.9(a) allows proof “in any manner” that shows the electronic signature was the act of the person at issue. Evidence a person affixed an electronic signature can include security procedures—such as a unique log-in and password—that prove which person affixed a signature.

ARBITRATION MOTION WAS DENIED IN LIGHT OF CONFLICTING EVIDENCE REGARDING WHETHER EMPLOYEE OPERATED COMPUTER WHICH AFFIXED E-SIGNATURE

Although movant Marinidence (the employer) provided evidence the nonmovant Ms. Bannister (the employee) completed an onboarding process that included the arbitration agreement, the employee submitted evidence that “she did not touch the computer during that process and never reviewed or signed any arbitration agreement.” Ms. Bannister reported that an HR manager completed the forms and merely asked for certain information such as W-4 withholdings. The HR manager had access to Ms. Bannister’s log-in credentials and other information; as such, it was unclear whether Ms. Bannister took any action to affix an electronic signature on any agreement or whether she even reviewed the document. The trial court held the employer did not satisfy its burden of proof. The Court of Appeal affirmed because the ruling was supported by “substantial evidence.”

Congratulations to CELA member Allison Ehlert of Ehlert Hicks LLP!

COA 1st District, Div. Five. Filed 4/30/21, publication ordered 5/21/21. 64 Cal.App.5th 541.  Opinion by Justice Burns.

bills and other priority bills we are tracking.

• SB 331(Senator Leyva) – This will expand the prohibition on non-disclosure agreements (“NDA’s”) in settlement agreements involving sexual harassment, sexual assault, and sex discrimination to cover settlement agreements involving all forms of harassment or discrimination.  This bill will also expand the prohibition on overly broad confidentiality and non-disparagement clauses in employment agreements to cover workers who are required to sign these types of clauses as part of a severance agreement.  Status: This bill passed the Senate 29-8 and is now on the Assembly Floor awaiting a floor vote.
• AB 1041(Wicks) – This bill will expand the definition of “family member” for purposes of paid sick leave and family and medical leave under the California Family Rights Act, to allow workers to take time off to care for a “designated person.”  Status: This bill passed the Assembly 52-16 and is now in the Senate Appropriations Committee.
• AB 1119(Wicks) – This bill will prohibit discrimination against employees based on their family responsibilities and will ensure working families have access to reasonable accommodations to deal with school and care closures.  Specifically, this bill will add “family responsibilities” to the list of protected categories under the Fair Employment and Housing Act (FEHA) and will also provide employees with caregiving responsibilities with the right to reasonable accommodations to deal with school or care closures under FEHA.  Status: This bill was held in the Assembly Appropriations Committee and is now a 2-year bill. The bill will be eligible to move forward next year.
• AB 95(Low) – This bill will require employers with 25 or more employees to grant an employee 10 business days of unpaid bereavement leave upon the death of a family member. Employers with fewer than 25 employees will be required to grant 3 business days of bereavement leave.  Status: This bill was held in the Assembly Appropriations Committee and is now a 2-year bill. The bill will be eligible to move forward next year.
• SB 321(Durazo) – This bill will remove the unjust exclusion of domestic workers from California’s health and safety laws.  Status: This bill passed the Senate 30-10 and is now in the Assembly Appropriations Committee.
• SB 762(Senator Wieckowski) – This bill will strengthen recently enacted legislation (sponsored by CELA) that established that an employer is in breach of the arbitration agreement (and waives its right to compel or proceed in arbitration) if they do not pay their arbitration fees within 30 days of the due date.  To ensure compliance, this bill will require the arbitration provider to send both parties a copy of the invoice with the due date as soon as all filing requirements necessary to initiate an arbitration are met by the parties.  This statement must include the full amount owed and the date when that payment is due. Additionally, should an extension of a due date for payment for continued arbitration be sought, the new due date must be agreed to by all parties.  Status: This bill passed the Senate unanimously and is now on the Assembly Floor awaiting a floor vote.

Other Key Labor and Employment Bills

For a complete list of bills we are tracking, please visit www.cela.org/legislation.

SB 774 (Hertzberg D) Lawyer-client privilege: Department of Fair Employment and Housing.  Summary: Would specify that the lawyer-client privilege applies to confidential communications between a lawyer of the Department of Fair Employment and Housing and a person who files a complaint with the department or another person on whose behalf a complaint is filed. The bill would state that these provisions are declarative of existing law and apply retroactively.

SB 665 (Umberg D) Employment policy: voluntary veterans’ preference.  Summary: This bill would enact the Voluntary Veterans’ Preference Employment Policy Act to authorize a private employer to establish and maintain a written veterans’ preference employment policy, to be applied uniformly to hiring decisions, to give a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee. The bill would require a private employer with a veterans’ preference employment policy to annually report to the Department of Fair Employment and Housing the number of veterans hired or retained under the preference policy and any demographic information about those veterans that the employer is already required to report, as specified.

AB 1576 (Committee on Judiciary)  Superior court: lactation rooms. Summary: This bill would require the superior court to allow an attorney or other officer of the superior court access to a lactation room, or another location, as specified, that is provided to court employees with priority to court employees.

AB 286 (Gonzalez, Lorena D) Food delivery: purchase prices and tips. Summary: The bill would make it unlawful for a food delivery platform to retain any portion of amounts designated as a tip or gratuity. The bill would require a food delivery platform to pay any tip or gratuity for a delivery order, in its entirety, to the person delivering the food or beverage, and to pay any tip or gratuity for a pickup order, in its entirety, to the food facility.

AB 701 (Gonzalez, Lorena D) Warehouse distribution centers. Summary: This bill, among other things, would require specified employers to provide to each employee, defined as a nonexempt employee who works at a warehouse distribution center, upon hire, with a written description of each quota to which the employee is subject, including the quantified number of tasks to be performed, or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota. Establishes a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates or takes any adverse action against an employee, within 90 days of the employee requesting information or making a complaint related to a quota.

AB 1003 (Gonzalez, Lorena D) Wage theft: grand theft. Summary: This bill would make the intentional theft of wages including gratuities, in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period punishable as grand theft. The bill would authorize wages, gratuities, benefits, or other compensation that are the subject of a prosecution under these provisions to be recovered in a civil action by the employee or the Labor Commissioner. This bill would specify that, for the purposes of these provisions, independent contractors are included within the meaning of employee and hiring entities of independent contractors are included within the meaning of employer.

SB 62 (Durazo D) Employment: garment manufacturing. Summary: The bill would prohibit any employee engaged in the performance of garment manufacturing to be paid by the piece or unit, or by the piece rate, except as specified. The bill would impose statutory damages of $200 against a garment manufacturer or contractor, payable to the employee, for each pay period in which the employee is paid by the piece rate.

SB 646 (Hertzberg D) Labor Code Private Attorneys General Act (PAGA): janitorial employees. Summary: This bill would except from the PAGA a janitorial employee, as defined, with respect to work performed under a valid collective bargaining agreement in effect any time before July 1, 2024, that contains certain provisions, including, among others, a grievance and binding arbitration procedure to redress violations that authorizes the arbitrator to award otherwise available remedies. The bill would authorize the exception until the collective bargaining agreement expires or until July 1, 2024, whichever is earlier, and would repeal the bill’s provisions on July 1, 2024.