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California’s End to the Independent Contractor?

Author: Kyle R. Maland

Guest Editor: Aydin Emami

September 11, 2019 10:00am

The battle over the controversial decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles rages on in the California Senate via California Assembly Bill 5 (“AB 5”). AB 5, a sweeping bill backed by California labor unions, would make it much harder for California employers to classify employees as independent contractors, a common practice that has allowed in part certain gig economies to flourish. AB 5, a…

California is the First State to Ban Discrimination Based on a Person’s Natural Hair

Author: Natasha K. Zaslove

Guest Editor: Aydin Emami

September 11, 2019 10:00am

California Governor, Gavin Newsom has signed into law SB 188, which protects employees from discrimination based on natural hair and hairstyles associated with race. SB 188, also known as the CROWN Act, is intended to create a respectful and open workplace for natural hair. On April 22, 2019, the California State Senate unanimously passed SB 188. On June 27, 2019, the California State Assembly unanimously passed the bill. On July 3, 2019…

9th Circuit Holds the “but for” Causation Standard Applies to Ada Discrimination Cases

Author: Orlando Arellano

Guest Editor: Aydin Emami

September 11, 2019 10:00am

A recently decided appeal in the 9th Circuit held the correct causation standard to apply in discrimination cases under the Americans with Disabilities Act (“ADA”) is the “but for” standard rather than the “motivating factor” standard.   While not exactly a sea change in employment law, this decision is a welcome relief from the tidal wave of anti-employer statutes and case law in California.

The Common Law Definition of Employee Applies to Retaliation Claims Under Labor Code Section 1102.5(b).

Author: Reece Román

Guest Editor: Aydin Emami

September 11, 2019 10:00am

Following the California Supreme Court’s landmark ruling in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, there has been some uncertainty regarding classification of employees versus independent contractors in cases not involving California Wage Orders, which impose obligations relating to basic working conditions such as meal and rest breaks. In the recent case Bennett v. Rancho California Water Dist., the Fourth…

“Sweat Equity” in California Garage Startups: A Heartwarming and Illegal Story of Innovation

Author: Michaela Jester

Guest Editor: Brian Johnson

June 10, 2019 11:00am

California’s Silicon Valley is known world-wide as the home of successful startup companies with humble beginnings in garages. People find stories about entrepreneurs delaying monetary reward and pouring all assets into fledgling their company while forgoing wages inspiring. Instead, these founders and their initial employees labor in exchange for “sweat equity”, or cheap stock grants, and take a gamble on the return of their investments…

California Federal Jury Gives Walmart Employees Six Million Dollar Break

Author: Natasha K. Zaslove

Guest Editor: Brian Johnson

June 10, 2019 11:00am

A California federal jury decided in April that Walmart owed a class of employees at its Chino fulfillment center $6.1 million because the retailer had not provided meal breaks when it required workers to pass through anti-theft metal detectors before leaving the building. The case is Hamilton et al. v. Wal-Mart Stores Inc. et al., Case No. 5:17-cv-01415, in the U.S. District Court for the Central District of California. The case sheds…

“On-call” Shifts and Policies May Trigger Wage Order 7 Applicability

Author: Michaela Jester

March 11, 2019 12:33pm

California retailers may benefit from reviewing on-call policies to ensure compliance with a recent appellate interpretation regarding the applicability of Wage Order 7. On February 5, 2019, California’s Second Appellate District revived a proposed wage class action against Tilly’s Inc. by holding the company’s requirement of employees to call in before starting a shift, for the purpose of finding out if they are required to work the shift…

Two Recent Cases Further Divide California Federal and State Courts on Whether PAGA Claims are Arbitrable

Author: Orlando Arellano

March 11, 2019 12:09pm

The California Attorneys General Act of 2004, Labor Code section 2698 et seq., often referred to as the “PAGA” is a fairly unique statute. The PAGA statute allows a private party to be “deputized” as a “private attorney general” for purposes of collecting civil penalties for certain enumerated Labor Code violations. Of course, this is in addition to a private party’s right to collect his or her alleged unpaid wages, and other…

U.S. Supreme Court Confirms Employers Cannot Compel Arbitration for Transportation Workers

Author: David Kahn

March 11, 2019 12:07pm

In a unanimous decision, New Prime, Inc. v. Oliveira (2019) 139 S. Ct. 532, the U.S. Supreme Court resolved a nationwide dispute amongst the federal circuits regarding the enforceability of mandatory arbitration agreements in employment contracts for transportation workers classified as independent contractors.  In a unanimous opinion delivered by Judge Gorsuch, the Supreme Court held it is for the court to…

The G4S Secure Solutions Settlement

Author: Rachel Donnelly

March 11, 2019 12:03pm

On January 22, 2019, G4S Secure Solutions (previously known as Wackenhut Corporation) agreed to resolve a consolidated meal and rest period class action for at least $100 million and up to $130 million. This settlement is aimed to resolve the claims of 13,500 employees and ends fifteen years of litigation.

Second Appellate District of California Reinforces the Importance of the PAGA Letter and Rejects a Plaintiff’s Attempt to Get a Second Bite of the PAGA Apple

Author: Orlando Arellano

Guest Editor: Alla Policastro

December 17, 2018 9:00am

Let’s face it.  Some administrative procedure requirements in employment law are like locking a door with a Cheeto – pretty pointless.  For example, California employees wanting to sue their employers for harassment or discrimination pursuant to the Fair Employment and Housing Act (“FEHA”) must first obtain a “right to sue letter.”  Conveniently they can get one automatically by filing a complaint form with the Department of Fair…

Is There Hope for PAGA Relief After All?

Author: Kyle R. Maland

Guest Editor: Alla Policastro

December 17, 2018 9:00am

California’s Assembly Bill 1654 (“AB 1654”) provides a PAGA carve-out for unionized construction workers covered by an applicable collective bargaining agreement (“CBA”).  For Now, AB 1654 is limited to the unionized construction industry, which makes up a small section of California’ workforce.  However, its purpose in providing relief from PAGA may serve as a prequel to further relief from PAGA’s oppressive scope.

Six Sexual Harassment Laws Every California Employer Must Know in 2019

Author: Michaela Jester

Guest Editor: Alla Policastro

December 17, 2018 9:00am

The “Me Too” movement burst onto the social awareness scene in late 2017. Encouraged to speak out to raise awareness of the prevalence of sexual assault and harassment, particularly in the workplace, many victims took to social media as their platform. Among the advocates unveiling their own experiences with sexual violence in the workplace were well-known male and female celebrities, athletes, and politicians, including…

As Work Habits Change, How Will Courts Interpret a “Benefit to the Employer” When Determining the Applicability of the “Vehicle Use” Exception”?

Author: Tara-Jane Flynn

Guest Editor: Alla Policastro

December 17, 2018 9:00am

In California, it is well established if an employee is within the course and scope of his employment at the time of an accident, vicarious liability extends to an employer.  However, CACI jury instruction 3725, known as the “vehicle use exception” or “the going and coming rule” states “an employee is not acting within the scope of employment while traveling to and from the workplace.”  This year, the Second Appellate Court for the…

In California, Potential Employers Can Be Liable Under Fair Employment and Housing Act (FEHA) for Misleading Pregnant Applicants Who Never Submit an Application

Author: Issa Mikel

September 10, 2018 9:00am

Can a potential employer be held liable under the California Fair Employment and Housing Act (FEHA), Government Code section 12900, et seq., for thwarting a pregnant woman from applying for a job by falsely telling her no position is available?  In the recent opinion in Abed, the California Court of Appeal, First District, held that it can. Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726.

California Reinforces State Law Prohibiting Restraints On The Ability To Work

Author: Po Waghalter

September 10, 2018 9:00am

In a recent Court ruling, California showed its continued support for workers. Specifically, the Court of Appeals reinforced California’s preference against any contract, which would restrain the ability to work, and clarified not only are non-compete clauses void, but other contracts of similar nature may also be void. Golden v. California Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir. 2015).

#MeToo Movement Inspires Privilege Designation for Sexual Harassment Claims. Just Do Not Be a Hater!

Author: Natasha K. Zaslove

September 10, 2018 9:00am

A new California law, which provides protection for sexual harassment complaints is coming to a workplace near you. The law, Assembly Bill 2770, goes into effect January 1, 2019, and creates a new category of privilege for complaints of sexual harassment, as well as communications by an employer regarding those complaints. In addition, the law carves out a privilege for answers to the question: “Would you rehire an employee?”

De Minimis Rule Rejected by California Supreme Court

Author: Regina Silva

September 10, 2018 9:00am

In a surprising decision for employers in the State of California, the California Supreme Court in Troester, held the de minimis doctrine, which was adopted under the Federal Fair Labor Standards Act (FLSA) did not apply to California employers. Troester v. Starbucks 2018 WL 3582702 (July 26, 2018.)

Disability Harassment in the Workplace Lands $500K Jury Verdict for Mimicking and Mocking an Employee’s Stutter

Author: Jeremy Freedman

Guest Editor: Natasha K. Zaslove

August 6, 2018 9:00am

In many workplace harassment cases, it is often difficult to gather evidence or produce witnesses to testify regarding instances of harassment for a number of reasons. Often, the harassing conduct may take place in private and is undocumented. Where the offending conduct is witnessed by others, social pressure and fear of retaliation for testifying against an employer exacerbate the challenges in obtaining evidence. 

United States Supreme Court Rules that Class Action Waivers Contained in Arbitration Agreements are Enforceable

Author: Regina Silva

Guest Editor: Jessica Heppenstall

June 8, 2018 10:15am

To employers’ delight, and disappointment to class action plaintiff attorneys, the United States Supreme Court finally issued its decision on the hotly debated issue of whether or not a class action waiver contained in an Arbitration Agreement violates the National Labor Relations Act (NLRA). Short answer: it does not!

Dismissal with Prejudice May No Longer be a Proper Remedy for Misjoinder of Parties in Action Alleging Common Pattern of Employment Discrimination

Author: Reece Román

Guest Editor: Jessica Heppenstall

June 8, 2018 10:12am

When multiple employees sue an employer in a single lawsuit based on a common pattern of discrimination, employers have historically relied on misjoinder of parties as a defense on demurrer. The recent decision by the Fourth Appellate District, Division Two, in Rosa Jensen v. The Home Depot, Inc., et al., 2018 WL 2441175, may force employers to change their defense tactics, at least at the early pleading stage.

NOSHA Adopts The “Rule Of Access” Standard To Determine PPE Training Requirements

Author: Christopher Lund

December 1, 2017 4:55pm

The Nevada Supreme Court recently issued an opinion interpreting the language of a federal regulation which requires employers to provide personal protective equipment (PPE) to employees and training on how to use the PPE in certain workplace situations. The case came about due to an anonymous complaint sent into the Nevada Occupational Safety and Health Administration (NOSHA), in which the complainant stated Sierra…

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