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Q&A: What the Passage of Prop 22 in California Means for “Gig Economy” Employees

Guest Editor: Ashley Kaye

Featured: Andrew Smith, Kathryn Lee Colgan

December 17, 2020 12:22pm

App-based transportation and delivery companies spent the months leading up to election day heavily advocating for and supporting Proposition 22, a ballot initiative that would keep app-based drivers – “gig employees” – classified as independent contractors rather than employees, as mandated by the passage of the controversial California Assembly Bill 5 (AB-5). The effort paid off, and the proposition received enough votes in favor to pass into California law.

Ninth Circuit Denies Class Certification Where Common Claim Does Not Predominate

Author: Orlando Arellano

Guest Editors: Sean McGah, Ashley Kaye

December 17, 2020 8:15am

In a recent ruling by the United States Court of Appeals for the Ninth Circuit, the Court upheld a trial court order denying class certification on the basis that although common issues existed, they did not “predominate.”  It is basically the class action equivalent of having your home run caught just over the wall, but it is also a good lesson for class action litigators that predominance matters, at least when the plaintiff only seeks to certify via 23b(3).

SB 1383: Small Businesses in California Must Prepare for Expanded Employee Leave Benefits Effective January 1, 2021

Author: Kyle R. Maland

Guest Editors: Sean McGah, Ashley Kaye

December 17, 2020 8:14am

On September 17, 2020, Governor Gavin Newsom signed into law new employer requirements for employee leave rights under the California Family Rights Act (CFRA) and the New Parent Leave Act (NPLA). The new law significantly increases the number of California employers subject to the CFRA and NPLA, placing new burdens on small businesses already fighting to keep their doors open.  The change requires California employers with as few as five employees to provide family and medical leave rights to their employees.

Colorado’s Equal Pay for Equal Work Act: Prohibitions, Requirements, Penalties, and Allowable Actions

Author: Blaire Bayliss

Guest Editors: Sean McGah, Ashley Kaye

December 17, 2020 8:12am

Colorado employers, public and private, should prepare to comply with the Equal Pay for Equal Work Act (EPEWA), which will become law on January 1, 2021. The law, formerly Senate Bill SB19-085, contains significant regulations regarding salary requirements, job postings, allowable interview questions, and other aspects of employment. Due to the wide-ranging requirements and impacts of the EPEWA, even employers with equitable workplace practices should consider the requirements of the new law to ensure compliance.

Colorado’s Equal Pay for Equal Work Act: Prohibitions, Requirements, Penalties, and Allowable Actions

Author: Blaire Bayliss

Guest Editors: Sean McGah, Ashley Kaye

December 14, 2020 9:00am

Colorado employers, public and private, should prepare to comply with the Equal Pay for Equal Work Act (EPEWA), which will become law on January 1, 2021. The law, formerly Senate Bill SB19-085, contains significant regulations regarding salary requirements, job postings, allowable interview questions, and other aspects of employment. Due to the wide-ranging requirements and impacts of the EPEWA, even employers with equitable workplace practices ought to carefully consider the requirements of the new law to ensure compliance.

Ninth Circuit Denies Class Certification Where Common Claim Does Not Predominate

Author: Orlando Arellano

Guest Editors: Sean McGah, Ashley Kaye

December 14, 2020 9:00am

In a recent ruling by the United States Court of Appeals for the Ninth Circuit, a trial court order denying class certification was upheld on the basis that although common issues existed, they did not “predominate.”  It is basically the class action equivalent of having your home run caught just over the wall.  But it is also a good lesson for class action litigators that predominance matters; at least when the plaintiff only seeks to certify via 23b(3).

The Downward Spiral: Poor Litigation Often Leads to A Meritless Appeal

Author: Michael Kutzner

Guest Editor: Allen Aho

September 9, 2020 11:00am

Employment discrimination cases may present unique opportunities for plaintiffs and defendants alike. Although typically barred in civil litigation, if a plaintiff prevails in an employment discrimination case, s/he may request attorney’s fee under Washington statute, and said attorney’s fees will likely be awarded. A unique element of employment discrimination cases for defense counsel pertains to case theory. Often, defense counsel wishes to present many alternate theories of a case to a jury to negate many possibilities…

Generic Comments About Plaintiff’s Age Are Insufficient to Prevent Summary Judgment of Plaintiff’s Discrimination Lawsuit in California

Author: Orlando Arellano

Guest Editor: Alla Policastro

September 9, 2020 11:00am

Being an employer these days can be a real minefield.  Some employers are downright paranoid about discrimination and harassment lawsuits.  So much so that they often have a no-tolerance policy about any type of comments about a person’s age, race, sexual preference, etc.  Arnold v. Dignity Health (Cal. Ct. App., July 17, 2020, No. C087465) presents the question of whether routine comments about a person’s protected status (whether it be age, race, or sexual preference, etc.) are sufficient evidence…

Recent California Arbitration Decisions Provide Cautionary Tale for Employers

Author: Regina Silva

Guest Editor: Alla Policastro

September 9, 2020 11:00am

While California still awaits to find out the status of AB 51, which banned mandatory arbitration agreements effective January 1, 2020, but was enjoined by a federal district court in February (and is on appeal), our Courts are still providing guidance with respect to arbitration agreements in place prior to 2020.  More recent decisions suggest the Courts are scrutinizing agreements allegedly signed electronically, as well as conducting strict reviews of the language of agreements.

Watch Out Employers! Employees’ Settlement of Individual Claims Does Not Extinguish PAGA Standing to Sue as State Representative for Labor Code Violations

Author: Po Waghalter

June 9, 2020 9:00am

In a recent holding by the California Supreme Court in Kim v. Reins International California, Inc., (March 12, 2020, CA Supreme Court Case No. S246911) the state’s public policy of supporting employee rights was reaffirmed: an employee does not lose standing to bring an action under the Private Attorney General Act (“PAGA”) on behalf of the State, for particular Labor Code violations, simply because the employee settled and dismissed his own…

Employers Catch a Break on Attorneys’ Fees

Author: Orlando Arellano

June 9, 2020 9:00am

One characteristic of employment law that employers understandably feel is unfair are one-way attorney’s fees provisions.  They only allow a Plaintiff to recover his or her attorney’s fees should they prevail on certain claims.  Although there are some two-way attorney’s fees provisions, they often require more than just prevailing against a Plaintiff, but showing that Plaintiff acted in “bad faith” or that Plaintiff’s claim was “frivolous.”  Those are very…

Employment Claims in the Coronavirus Era

Author: Rachel Donnelly

June 9, 2020 9:00am

As courthouses begin to slowly open their doors following the coronavirus shutdown, attorneys are already filing lawsuits encompassing employment law claims stemming from the coronavirus pandemic. Some trends among these claims are starting to form. This article will explore the types of employment claims being filed related to the coronavirus pandemic and which will likely continue to be filed for the foreseeable future.

Rogue Mid-level Manager Exposes Company to Punitive Damages in Colucci v. T-Mobile

Author: David Kahn

June 9, 2020 9:00am

In the recently published 4th District Court of Appeal decision (Colucci v. T-Mobile, USA, Inc. (2020) 48 Cal. App. 5th 442, WL 2059849) the court upheld an award of punitive damages against the company based on the conduct of a regional manager who terminated a store manager for cause and without warning based on an alleged pretextual conflict of interest. The Plaintiff alleged the real reason for the termination was retaliation for…

COVID-19: What California Employers Ought to Know

Author: Kyle R. Maland

Guest Editor: Kathryn Lee Colgan

March 20, 2020 2:53pm

The federal government just passed the Families First Coronavirus Response Act (the “Act”) to help employees and businesses facing challenges related to the coronavirus. The law becomes effective 15 days after President Trump signs the bill, which will make the bill effective no later than April 2, 2020. In sum, the Act guarantees free coronavirus testing, secures paid emergency leave, expands FMLA leave, and enhances Unemployment…

Workers’ Compensation Risk for After Hours Injuries at the Place of Employment

Author: David Kahn

March 9, 2020 11:27am

Injured employees are entitled to workers’ compensation benefits for injuries arising out of and in the course of employment. But what happens when an employee is injured after work at the place of employment while socializing with other workers or engaged in a recreational activity? The answer depends on the purpose for which the employee is at the place of employment and the degree to which the purpose is a condition…

Reminder of New Laws Effective January 1, 2020

Author: Regina Silva

March 9, 2020 11:24am

As the new year has already commenced, we thought it important to remind our readers of the more significant legislation that went into effect.  Last year, we covered AB 51 – which bans mandatory arbitration agreement, the passage of AB 5 – which codified the Dynamex ABC test, and the CROWN Act – which protects employees from discrimination based on their natural hair and hairstyles associated with their race.

California Supreme Court Declares Apple Inc. Retail Employees Must Be Compensated for Exit Searches

Author: Sean McGah

March 9, 2020 10:02am

In a monumental decision on February 13, 2020, regarding compensation due employees forced to undergo “exit searches,” the California Supreme Court declared such searches cannot be held off-the-clock.  The United States Court of Appeals for the Ninth Circuit requested the California Supreme Court decide the issue of whether an employee’s time spent on an employer’s premises waiting for and undergoing an exit search, constitutes…

Poorly Written Meal and Rest Break Policies Are Not Enough to Obtain Class Certification

Author: Orlando Arellano

March 9, 2020 9:55am

In a now-famous decision, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, the California Supreme Court clarified an employer’s meal break duty as follows: To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes…

California’s AB 5: An End to the “Gig Economy” in California?

Author: Amanda Fornwalt

December 9, 2019 10:00am

On January 1, 2020, California’s sweeping employment legislation, Assembly Bill 5 (“AB 5”), which codifies the much reviled 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles takes effect. The Dynamex decision turned California’s longstanding analysis of worker’s relationships with companies on its head. Since 1989, the…

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