Stay Prepared for Physical Threats

Ryan Faith, TEAM Software by WorkWave, CALSAGA Network Partner

Physical security decision-makers at major U.S. companies reported a dramatic increase in threat activity in 2021 and expect that threat to grow, according to a 2022 study examining security challenges and opportunities.

The number of threats that companies will receive or investigate is expected to increase, and the scale of the threats that guards are expected to miss will expand, reports that same study.

Reasons for the expected uptick in physical threats include labor shortages, as there are currently one or fewer unemployed persons per job opening, which makes adequate guard staffing difficult, and economic uncertainties that could simultaneously encourage criminal activity.

Despite the current economic conditions, early preparation that focuses on reducing job hazards, improving safety protocols and ensuring that guards feel safer on the job can help combat physical threats. Staying prepared for physical threats also involves leveraging technology and working closely with staffers to review and improve current hazard plans.

Better monitor guard patrols

For guard monitoring, location tracking technology offers increased visibility over security operations by physically locating guards on duty and electronically recording and tracking their movements. Security professionals can use this type of technology to better identify incidents and respond in a timely, appropriate manner.

Risk mitigation requires making sure that guards are in the right place at the right time, so guards can respond to incidents as quickly as possible. Guard software that uses location tracking technology creates a digital log of incidents that automatically keeps track of updates and assigns security guards to help respond to physical threats.

Digital logs also ensure that physical security decision-makers have the information they need via email and those messages are sent immediately, whenever a new incident is reported. The accurate data derived from location tracking technology is available via on-demand reports, which can be reviewed at a later date to improve hazard plans and continue to mitigate risks.

Expand on-site visibility

While GPS is the most widely used location tracking technology in the industry, it is primarily designed for outdoor location tracking and can therefore be less effective when needing to track guards indoors. This is particularly true for multi-story and high-rise buildings since GPS has no ability to distinguish which floor a guard is located on. To track guards indoors more accurately, modern security software will oftentimes supplement GPS tracking with additional technologies such as QR codes, NFC tags, or Bluetooth Beacons.

QR codes and NFC (near-field communication) tags supplement GPS tracking by providing fixed points in a building that enable a guard to confirm their exact location on a particular floor. Modern software options will also pair data collection alongside these points, making it easy for guards to log any notable information (i.e., a back gate can have a QR code that when scanned, opens a “back gate log form”).

Bluetooth beacons are a powerful, albeit less commonly available, technology used for indoor guard tracking. Using beacons, security companies are able to track each guard’s location in real-time across multiple floors without the guard ever even needing to take their device out of their pocket. This technology is most commonly utilized in large facilities such as airports, high-rise buildings, or shopping malls where implementing individual QR codes/NFC tags might be cumbersome.

Regardless of which tracking is utilized, all of the listed options offer massive improvements over inefficient paper processes and manual record keeping. More so than ever before, having detailed data and analytics has proved paramount to staying prepared for physical threats, but also winning new business.

Automate periodic checks

At times, managers may notice their guards missing regular safety check-ins. Naturally, guards can get distracted, simply forget or find it difficult to respond in a timely manner. As a result, company operating centers can become inundated with missed check alerts and notifications, which can delay the response time to physical threats or other types of emergency situations.

There are tools that aid in the check-in process to help ensure that alerts are being sent and received during emergencies, so incidents can be quickly resolved. With an integrated workforce management system, when a scheduled periodic check is missed, operation centers are alerted and supervisors in the field can also be contacted. This helps employers follow up quickly to ensure their guards are safe and confirm whether or not support is needed.

Guarding software can also send SMS text messages to remind guards to complete their periodic checks. Employees can respond to those text notifications to close period checks without calling in. Enabling SMS text messaging reduces the number of outbound calls necessary to check on remote employees and  makes it easier for guards to complete their periodic checks.

A log of all SMS messages sent to and received from opted-in employees and job phone numbers can help a back office troubleshoot missed messages in the field. It also reinforces the importance of timely communication, especially during emergencies.

Encourage security guard safety

Industry advancements are being made every day in terms of physical security systems. TEAM Software by WorkWave offers a number of software tools to help support security guard safety. Lighthouse is our mobile workforce management solution, which specializes in location tracking technology and guard monitoring to help teams better respond to high-risk situations.

Ryan is a customer advocate who partners with TEAM Software by WorkWave customers to help identify where software can make their businesses more efficient, competitive and profitable. In his five years with TEAM, Ryan has worked alongside many of the world’s leading security firms and has developed a specialized understanding of the unique challenges faced by the industry.

Navigating the Increasingly Difficult Waters of California Compliance

Jordan Wallach, Belfry Software, Associate Member

The recent Annual Conference was an eye-opener on how shifting California regulations are reshaping the compliance scene for guard services firms. It’s clear: the back office is now in the hot seat, juggling more than ever – from sick time tracking and overtime calculations to break compliance. This could mean less time for those strategic moves that set your business apart from the crowd.

The updated California regulations necessitate meticulous tracking of sick time accruals and carryovers, with the recent law increasing annual sick days from three to five and enhancing carryover provisions. Weighted overtime calculations demand a methodical approach to identify overtime hours and decide on the applicable overtime rate, adhering to California’s specific rules. Break compliance is equally crucial, mandating meal breaks and rest breaks, with non-compliance resulting in significant fines.

Here’s where Belfry strides in as the industry’s purpose-built Payroll & HR platform, integrated with all the other components you need to run a guard services firm. Its end-to-end solution smartly handles time-off tracking, automates those overtime calculations based on California’s rules, and has got break compliance covered too. Belfry isn’t about adding another tool to your stack; it’s about easing compliance to free up your back office. With Belfry, compliance becomes a breeze, letting you focus on what truly matters – delivering exceptional service and carving a distinctive niche in the security sector.

Jordan Wallach is the Co-Founder and CEO of Belfry, the modern operating system for security guard services companies and a CALSAGA Member. Prior to founding Belfry, Jordan was a consultant at McKinsey & Company and a Product Manager at Microsoft, building software used by millions of people worldwide. He has a bachelor’s degree in Data Science from Stanford University.

Back to Business: Prepping Security Guards for the Return-to-Office Movement

Gamble Cuce, The Brownyard Group

The return-to-work debate has dominated headlines in recent months as businesses big and small lay out requirements for their employees to return to office. 

This past summer, Google was in the public eye when leadership announced that employees would be required to spend at least three days per week in the office with attendance reflected in their employee performance reviews. Similarly, Amazon leadership recently cracked down on employee in-office attendance after instating a three-day per week return to office policy.  Google, Amazon and others throughout California have worked to incentivize employees to return to the in-person workplace with appealing campus-like offices, attractive community spaces and even offering discounts on nearby overnight accommodations for those who may not live nearby. 

What does all this mean for the security guards who may be new to the site or may have been working in a largely empty office building? With this shift, private security roles will likely be in higher demand as companies look to safeguard their properties and protect employees.  Security guard firms will have to be ready for this increase.

 The Risk Factor 

Given the impact of the pandemic, the great resignation and ongoing staffing struggles in the private security industry, many guards are fairly new to security. As demand for security services increases alongside the return-to-work movement, even seasoned guards could be facing unfamiliar territory as their job descriptions change.

With new guards on the scene and new ground for industry veterans to cover, come new risk exposures for security firms to consider. Some of those risks might include: 

  • Exposure to Elements: Despite many office buildings offering protection from the weather, there is always the risk for security guards to be injured or fall ill due to exposure to the elements. If a guard does not know the new territory well, it is possible that they may get locked out of the building or get lost and not be able to find their way back to the guard station, risking dangerous exposure to the elements and suffering injuries such as heat stroke or frostbite as a consequence. 
  • Location Management: A major portion of any security guard’s role is managing the location they are guarding to ensure fulfillment of contractual obligations. Such obligations may include protecting employees from risk, preventing thieves or vandals from accessing the property, preventing loss from internal thieves and more. If a guard is unfamiliar with the physical territory they are assigned to, they run the risk of failing to properly manage and secure the property and potentially cause a security breach. Alternatively, if a guard does not know the schedules of individuals who work on a hybrid basis, they may mistakenly give an individual access to the building who should not have it, or they may accuse an individual of a crime they did not commit. 

Regardless of the risk, it is important for security guards, both new and seasoned, to familiarize themselves with a new property or territory when they are assigned a new client. Additionally, when securing a business office or park that operates on a hybrid schedule, all security guards should be familiar with the schedule and understand who has access to the building and when. 

Best Practices to Consider

To protect security guards and firms from risks related to a return-to-work and more, security firm leadership should prioritize risk mitigation and training. These best practices offer a good start: 

  • Training & Resources: Training is a security guard’s greatest asset. Throughout their career, a security guard should undergo regular training and refresher courses to ensure they are always up to date. Whether a security guard has been in the industry for 20 years or two months, they should be required to complete training that covers communication, patrol methods, emergency response and more. A portion of their training should be related specifically to the locations a guard will be expected to secure. Security firms can access resources to build customized training programs such as those provided by risk management partners. To ensure programs are compliant with safety standards, they can confirm with organizations like the U.S. Occupational Safety and Health Administration (OSHA). An insurance professional who specializes in the security industry can also be a great resource in ensuring training programs are effective and cover the right liabilities.  
  • Get familiar: A smart way for security guards to familiarize themselves with a new territory is to walk through the property several times with a keen eye. Security firm leadership should ensure all guards map out a new property before they begin watching over it. New hires should also go through a period where they are accompanied by an experienced guard or trainer who can teach them what to look out for and what to make note of in a walkthrough. 
  • Consider a triage nurse: The security industry can be dangerous and that, coupled with general risks, such as trips and falls, presents a case for security firms to consider exploring nurse triage programs. Whether through an onsite professional or a service provider, nurse triage programs provide a registered nurse on call for security guards who are injured. Such services encourage that proper protocols are followed which help with quick response times in an emergency. By recording injuries in real time, taking statements and recommending care, security firm leaders can rest assured that events are to be recorded and reported properly. Ultimately, nurse triage programs can reduce the likelihood that claims will spiral into costly litigation. 

As more businesses require their employees to return to work, security firms have an opportunity to review their safeguarding methods before returning their guards to the recently repopulated buildings, campus spaces and other areas. To truly take advantage of these opportunities, security firm leaders should ensure their guards are prepared for the challenge and equipped with the tools to safely succeed. 

 

Gamble Cuce is program manager for workers’ compensation at the Brownyard Group, which administers an industry leading insurance program for security professionals. Gamble can be reached at GCuce@brownyard.com. 

Lead Your People Well Everyday: Tips for Effective Leadership

Anne Laguzza, CEO – The Works Consulting, Network Partner

Laws change. External factors impact the industry. Clients’ needs shift. There are many outside influences that impact how your operations function and the responsibilities of your team. However, what doesn’t change is the principles of effective leadership.

Follow these three tips to effectively lead your employees everyday – no matter the external factors. 

1. Communicate Daily

Communication is a critical component of actively managing your officers. Regular communication solves issues, often before they arise, and instills confidence in your workforce.

Effective communication is made up of 10% words + 35-45% tone + 45-55% body language. Go beyond text messages, instead have a voice or video conversation. Taking that extra step to make a voice or video call is critical to effectively communicating important assignments and avoiding miscommunications that happen when only using text. This is especially helpful for officers who work solo without seeing anyone in management for weeks or months and can get disconnected quickly.

Regular, effective communication builds trust with your team and boosts employee morale.

2. Convey Appreciation

 Conveying your appreciation for your people is another critical principle of effective leadership. You can do so much to make your officers feel valued and important with very little effort or cost and see an incredible return on your investment.

When I worked internally in the industry, my job was to turn around morale and reduce employee complaints among the 600 employees. I was able to do both, just by recognizing the “human” in these officers and treating them with respect with every interaction. The leadership of our company was very good at getting out in the field and communicating with officers and shaking hands. These interactions made our employees feel valued and important.

A simple phone call or other personalized communication to individual officers from the leader of your company to say thank you will go a long way in ensuring your officers feel valued.

3. Set and Communicate Clear Expectations

When you set expectations and communicate them on a regular basis, you provide your team with a clear path for success.

When your employees face a new or unexpected situation, they – on their own – will be able to reason through the problem and find a solution that aligns with your expectations and represents your company appropriately because you were so clear on communicating those expectations.

Another benefit of regularly communicating expectations regularly is that critical performance conversations will be easier to have with your employees because you have set expectations and can clearly point to where performance has not aligned without any confusion.

As we close out another year and look ahead to changes that every new year can bring, it’s important to  stay focused on what never changes – effective leadership because effective leadership builds high performing teams. 

Anne Laguzza is the CEO of The Works Consulting. As a seasoned business executive with human resources management, leadership development, and performance coaching experience, Anne works with clients from a variety of industries to develop better systems, maximize employee productivity, and enable management to focus on business growth.

Prior to founding The Works Consulting in 2001, Anne served as the Regional Human Resources Director for a Fortune 500 distribution company where she led a merger transition team and was responsible for strategic planning, implementing new policies and procedures, workforce restructuring, compensation structures, and integrating the work cultures for over 600 employees.

In addition, Anne was formerly the Human Resources and Training Director for a start-up entertainment company where she organized and implemented a company-wide change management program that involved new company direction and strategic planning. Prior to her work in the entertainment industry, Anne served as the Regional Training Manager for a nationwide retailer where she developed and launched a multi-state training program for human resources managers as part of a corporate expansion project.

Anne earned her Master of Arts degree in Organizational Management from Antioch University, and holds a Bachelor of Arts degree in Psychology from the University of California, Riverside. She is an active member of the Society of Human Resources Management, and is a board member for Harbor Interfaith Services and an advisory board member for Arthritis National Research Foundation. Anne has taught human resources and management courses at Long Beach City College and California State University, Dominguez Hills, and volunteers at non-profit organizations teaching interviewing skills to adults seeking re-entry into the workforce.

Social Media Links:

Instagram – https://www.instagram.com/annelaguzza/

Facebook – https://www.facebook.com/TheWorksHR/

LinkedIn – https://www.linkedin.com/in/annelaguzza/

Better Engage Employees to Reduce Turnover

Chris Shumaker, TEAM Software by WorkWave, CALSAGA Network Partner

Sourcing, recruiting and training new staffers is costly, which makes employee retention and turnover top-of-mind challenges in today’s tough job market. According to the U.S. Bureau of Labor Statistics, there were 8.8 million job openings in July 2023. The unemployment rate was at 3.8 percent, while approximately 3.5 million workers left their jobs that same month.

The job market has been relatively consistent over the past few years. In early 2022, economists stated that the U.S. is at full employment. Currently, there are approximately one or fewer unemployed persons per job opening. However, reducing employee turnover could combat the challenge of hiring quality employees.

For security professionals, employee turnover is generally the highest business expense when compared to other labor costs. Security industry profit margins are reportedly thin, which makes reducing employee turnover even more of a relevant factor during this rough hiring period.

Research shows that companies with engaged employees tend to deliver higher service quality on contracts, leading to higher customer retention. In turn, by lowering employee churn, it’s possible to reduce labor costs related to employee turnover – estimated in some cases at 1.5 – 2 times the employee’s salary.

Earned wage access

Keeping workers engaged can take on different forms. For example, studies have shown that introducing earned pay models resulted in reductions in turnover as high as 90%, decreased hiring costs related to turnover, increased interest from job applicants and fewer employees experiencing financial stress.

Giving a workforce early access to money they have already earned is called earned wage access. This feature enables employees to take a portion of their pay as they need it, versus waiting for their regular pay cycle, and all of this happens without impacting the company payroll.

Employers who have implemented earned wage access have helped their workforce avoid hefty interest from payday lenders, late charges on bills and bank overdraft fees which have been reported as $35 billion annually in the United States. Engaging a workforce through earned pay encourages workers to stay longer, which can reduce hiring time, cut training costs and keep contracts covered.

Self-scheduling and self-service portals

Implementing time and labor management solutions can also help reduce employee turnover through increased engagement. These tools introduce a self-scheduling element, offering several benefits such as reduced overtime and improved employee engagement and retention. Additionally, supervisors can focus more of their time and attention on more important duties.

Self-scheduling enables staffers to offer their shifts to one another, and employees can make these scheduling changes without requiring support from a manager. Additionally, other staffers get to take advantage of the open shifts. All of this supports the company by keeping shifts filled and closing gaps without back-and-forth messaging from supervisors.

Another way that business owners have been keeping their workers engaged is through employee self-service portals, which allow access to paystubs, time off requests, schedules and W2s. By removing the legwork to request that type of information from supervisors, self-service software offers transparency and encourages engagement.

Become an employer of choice

Employee engagement also means speaking with workers directly through meaningful conversations and following up on issues raised during those meetings, which helps managers better understand the challenges and motivations their workers face while showing them that their concerns are valued.

Regular conversations with workers can also provide insights into what they need to do their jobs better and why they value their work. Another transparent way to do that is to give them access to data collected via quality assurance tools, such as checkpoints, audits or inspections. Employees could benefit from being able to better understand their on-site performance.

Without regular conversations and actionable feedback, it can be harder to improve or streamline the work they are doing to earn even better results. Also, an employee benefits program related to performance can engage employees and reduce turnover.

The future of employee retention

Some professionals hold onto the misnomer that it’s easier to find new workers to do the same job, instead of retaining quality employees. Hiring requires advertising, interviewing, background checks, onboarding, training and employee support. Altogether, hiring one employee can cost between $4,000 to $20,000, not including salary and benefits, according to Indeed.com. 

To continue learning more about reducing employee turnover by engaging employees through software tools, such as earned wage access, employee portals and self-scheduling resources, visit www.teamsoftware.com.

Chris has been supporting customers for the bulk of his entire career. He joined TEAM Software by WorkWave in January 2023, and since then he has built connections with customers by understanding their needs, educating them on the software and promoting value through customer experience.

Discover How to Reduce Turnover, Increase Engagement, and Retain Your Security Officers

Jeff DiDomenico, Trackforce Valiant + TrackTik, CALSAGA Network Partner

Around $11 billion is lost annually due to overall employee turnover, according to the Bureau of National Affairs. This isn’t only representative of the physical security industry, and that number considers more than just lost hours. It factors in the cost associated with finding, training, and equipping replacement workers as well as reduced productivity.

But nowhere is the issue of turnover more acute than in the physical security industry. High turnover rates, low retention, and low employee engagement have always been a challenge for security firms and corporate security departments alike. Today, the high turnover rate in the security guard industry is a key challenge almost all face.

Security officer and security guard turnover rates are thought to be over 100% annually. That means  the average private security firm has a completely new workforce every 12 months. And that high turnover has potentially immense consequences.

When short on personnel, the exposure to risk increases. This may lead to people getting hurt, businesses experiencing increased incidents of theft and vandalism, and an increase in stressful situations that quickly get out of hand, like a lost child, crowd control, or medical emergency.

It’s why it’s so necessary for security companies to do things like offer competitive wages for employees who put a lot at risk daily. This is one of many ways to help reduce churn in physical security roles as outlined in our guide.

In addition to speaking about wages, we cover common reasons for employee turnover and offer 10 ideas that can:

  •   Effectively help reduce your turnover rates,
  •   Increase employee engagement, and
  •   Retain your best physical security personnel.

Want to learn more? Download our latest guide, Top 10 Employee Retention Strategies for Security officers!

In 2000, Jeff joined Trackforce Valiant + TrackTik as a partner and took on the role of VP of Sales & Marketing. Before this, he successfully owned a computer supply company, which he later sold to OfficeMax. Throughout his tenure with Trackforce Valiant + TrackTik, Jeff has been dedicated to establishing the company as North America’s foremost provider of security management software.

In addition, Jeff has played a pivotal role in advancing the Valiant Partner Marketplace, the Security Executive Roadshow, and various client events. He is a frequent speaker at various security associations and is recognized as a leading figure and content curator in the security industry.

Moreover, Jeff also serves as the host and co-content creator of Thinkcurity, a dynamic platform revolutionizing education in the physical security industry. Through engaging content and profound thought leadership, Thinkcurity empowers individuals in all aspects of running a thriving security operation.

Remembering Roy Rahn

Kate Wallace, Association Manager

Longtime CALSAGA supporter Roy Rahn passed away in May. During his time with the association Roy served as Board Member, President and finally as Executive Director. Roy retired from the United States Naval Reserve as Commander and served eleven years in law enforcement. Roy was a recipient of CALSAGA’s highest honor, the Al Howenstein Lifetime Achievement Award. ASIS International awarded Roy with the Vincent L. Ruffolo Legislative Advocate Memorial Award in 2017 for his efforts to improve the private security profession. Roy is survived by his wife of many years Laurie, five children and grandchildren. He will be missed by many. “We appreciate Roy’s many years of service to CALSAGA and to the industry,” said CALSAGA President David Chandler. “He was a friend to a lot of people, and he was a gentleman to everyone.”

From left: CALSAGA President David Chandler, Roy Rahn, Legal Advisor Barry Bradley and Treasurer Mark Miller in 2017

How to Effectively Navigate Non-Exempt Employee Meal Break Compliance

Tavon Parris, Trackforce Valiant + TrackTik, CALSAGA Network Partner

It’s no secret that many states have strict laws related to employee meal breaks. In California, for example, employers must provide employees with an uninterrupted 30-minute meal break for every five hours worked.

But for employers looking to provide unpaid meal breaks to their non-exempt employees, compliance can be complicated. Subsequently, failure to comply can be costly. Why? Because merely scheduling an employee for a 30-minute meal break, without more, is simply not enough to ensure compliance.

It’s why employers must take proactive steps to ensure employees:

  • Take their full meal breaks
  • Are relieved of all duties
  • Are not impeded or discouraged from taking their full, uninterrupted meal breaks

But taking these steps is just the start. Additionally, employers should also collect and keep data they can use to prove compliance in case of a legal claim. And with technology transforming compliance opportunities for employers, a variety of tools can now be used to avoid being swept away in the wave of litigation involving meal break violations.

Dive deeper by getting your copy of Trackforce Valiant + TrackTik’s latest white paper. You’ll learn more about:

  • What employers can do to help ensure compliance
    • Appointing a meal break for at least 30 minutes for non-exempt employees
    • Adopting a down-to-the-minute timekeeping system
    • Ensuring no duties are performed during the meal period
    • And more!
  • What’s next for the future of break management
    • Remote workforce tracking
    • Harnessing data
    • Looking for data trends
    • And more!
  • How technology can be used to nail compliance in the years to come
    • What that means for your business
  • How to future-proof your business beyond meal break compliance

This content was written with the help of experts at Littler Mendelson, the largest labor and employment law firm in the United States.

Grab your copy today

Trackforce Valiant + TrackTik combines over 45 years of total experience with the brightest and most influential minds to provide its customers with the industry’s most comprehensive security workforce management solution. Our cloud-based solutions help corporations and security guard service providers handle every aspect of security workforce management.

Tavon Parris
706-960-8158

Deviating from SCOTUS, California Supreme Court Has the Last Word on PAGA

Jaimee K. Wellerstein, Esq.,  Gmelich + Wellerstein, CALSAGA Legal Advisor

On July 17, 2023, the California Supreme Court issued its long-awaited ruling in Adolph v. Uber Technologies, Inc. (Supreme Court Case No. S274671), holding that a Private Attorneys General Act (PAGA) plaintiff retains standing to litigate representative PAGA claims in court after the plaintiff’s individual PAGA claims have been ordered to arbitration. In so holding, the California Supreme Court ignored guidance from the U.S. Supreme Court in Viking River Cruises v. Moriana.

Background

Plaintiff Erik Adolph worked as a food delivery driver for defendant Uber Technologies, Inc. (Uber). As a condition of his employment, Adolph was bound by the arbitration provision in the company’s technology services agreement. The arbitration provision required Adolph to arbitrate almost all work-related claims.

The agreement also stated: “[t]o the extent permitted by law, you and Company agree not to bring a representative action on behalf of others under the [PAGA] in any court or in arbitration. This waiver shall be referred to as the `PAGA Waiver.'” The agreement also included a severability clause: “If the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Arbitration Provision; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties’ attempts to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative actions brought under the PAGA must be litigated in a civil court of competent jurisdiction. . . .”

In 2019, Adolph sued Uber, alleging individual and class claims for relief, claiming that Uber had misclassified him and other employees as independent contractors rather than employees and, as a result, wrongfully failed to reimburse them for necessary business expenses. Adolph later amended his complaint to add a claim for civil penalties under PAGA based on the same theory of misclassification. The trial court granted a motion by Uber to compel arbitration of Adolph’s individual claims and dismissed Adolph’s class action claims.

Adolph filed a second amended complaint, eliminating his individual and class claims and retaining only his PAGA claim for civil penalties. Uber filed a second motion to compel arbitration of Adolph’s independent contractor status and the enforceability of the arbitration agreement. The trial court denied the motion, and Uber appealed.

Both the trial court and the Court of Appeal ruled not only that PAGA claims are not subject to arbitration but that “PAGA waivers” are unenforceable. Uber appealed to the California Supreme Court, but in the meantime, the U.S. Supreme Court issued a ruling that seemed to help employers in the uphill battle.

In June 2022, in Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that PAGA actions could be split into individual and non-individual representative claims through arbitration agreement, but the claims could not be simultaneously arbitrated and litigated in courts. The U.S. Supreme Court held that PAGA permits a plaintiff to maintain non-individual PAGA claims only if they also maintain an individual claim in the same action. In the U.S. Supreme Court’s view, PAGA’s statutory scheme provides no mechanism for a court to adjudicate representative PAGA claims when the individual claim is relegated to a separate proceeding. Consequently, the U.S. Supreme Court determined that while plaintiff’s individual PAGA claim could be arbitrated, the non-individual claims must be dismissed for lack of statutory standing.

Though Viking River appeared to be a victory for employers, the issue of standing under PAGA remained unsettled. In fact, Justice Sotomayor noted in her concurrence that “if this Court’s understanding of state law” as to statutory standing “is wrong, California courts, in an appropriate case, will have the last word.” And now, they have.

The California Supreme Court’s Decision

The California Supreme Court’s ruling in Adolph departs from the U.S. Supreme Court’s ruling in Viking River. In Adolph, the Court stated unanimously and unequivocally that “where a plaintiff has filed a PAGA action comprised of individual and non-individual claims, an order compelling arbitration of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court.”

In rejecting Uber’s arguments, the Court made clear that the outcome of a PAGA plaintiff’s individual arbitration will determine issues of standing for the non-individual claims. If a plaintiff prevails on their individual claims in arbitration (i.e., proves at least one individual Labor Code violation), the plaintiff retains standing to litigate the non-individual claims in court. If, however, the plaintiff does not prevail on their individual claims in arbitration (i.e., is unable to prove at least one individual Labor Code violation), then the plaintiff will lose the ability to pursue the non-individual PAGA claim in court as the individual would not be considered an “aggrieved employee” and would lose standing to proceed with the non-individual action.

Can Employers Still Hope to End PAGA?

Although not unexpected, this decision forces employers to look somewhere other than the judiciary for possible reprieve. The “California Fair Pay and Employer Accountability Act of 2024” is a proposed ballot measure which proposes to repeal PAGA and replace it with increased DLSE enforcement. It has qualified for the November 2024 general election.

Employer Takeaway

In light of this ruling, wage and hour compliance (e.g., overtime, timekeeping, pay, meal period and rest break policies, premium pay, etc.) is more important than ever. Employers should consider utilizing or revising arbitration agreements to specifically comply with the recent laws. Employers are advised to consult with counsel to review pending litigation to determine whether arbitration of individual claims to potentially deprive PAGA plaintiffs of standing to pursue non-individual PAGA claims is a viable option. If you have any questions about how this case may affect your business or need assistance preparing compliant policies or revising your practices, please contact your attorneys at Bradley, Gmelich + Wellerstein LLP. We are here to help.

Jaimee K. Wellerstein, Esq. is a Partner and the firm’s Employment Team Head. Representing employers in all aspects of employment law, Ms. Wellerstein collaborates with her clients to develop proactive business and legal strategies to try to avoid workplace conflict and employment disputes. She provides legal advice and counsel to numerous businesses, including conducting individualized training programs for both management and employees. Ms. Wellerstein performs internal audits of her clients’ employment practices to ensure compliance with the rapidly-changing world of employment laws, and guides investigations of employee allegations regarding harassment, discrimination, and employee misconduct. When litigation cannot be avoided, Jaimee K. Wellerstein aggressively defends her clients against employment law claims in the state and federal courts, as well as at administrative hearings, arbitrations, and mediations. Having defended numerous representative and individual lawsuits on behalf of her clients, Ms. Wellerstein is a skilled litigator and negotiator with a broad spectrum of experience upon which to draw. A frequent speaker on numerous topics, including employment law and contract law, Ms. Wellerstein regularly conducts training seminars and programs for managers and employees in all areas of employment practices and policies.

REGULATION CORNER

David Chandler, CALSAGA President 

Do you have a copy of the certificate for Powers to Arrest training on file for all of your officers? If not, you are in violation of section 7583.6e2 of the Business and Professions Code. I encourage you to rectify the issue immediately. If a certificate cannot be obtained, it is recommended that you offer the PTA training to your officers so that a certificate may be generated. Don’t forget that the regulations are not satisfied until the officer has completed the Powers to Arrest test with a score of 100 percent.

CALSAGA member companies enjoy the benefit of unlimited access to the Security Officer Training Database. The database allows users to create certificates that are BSIS-approved and satisfy the certificate requirements established in the B&P Code. If you have questions about the database or to get started utilizing this Member Benefit, contact Association Manager Kate Wallace at kate@calsaga.org.

 

This content originally appeared in the Q4 2019 edition of The Californian: The Quarterly Newsletter of CALSAGA. Read past editions of The Californian: The Quarterly Newsletter of CALSAGA.