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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 Insurance.

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

Author: David Kahn

Guest Editor: Danielle Vukovich

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

Guest Editor: Danielle Vukovich

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

Guest Editor: Danielle Vukovich

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

Guest Editor: Danielle Vukovich

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

Guest Editor: Danielle Vukovich

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…

Attack of the ADA Compliant Lawsuits in California

Author: Kathryn Lee Colgan

Guest Editor: Danielle Vukovich

December 9, 2019 10:00am

Currently in California there is a full frontal assault of lawsuits being waged against companies and employers big and small pertaining to ADA compliant websites. The most common type of suit being brought is with respect to the lack of proper access for the visually impaired. However, any business that is a “public accommodation” must assure its website complies with all disabilities including visual, neurological, hearing, and physical.

California Supreme Court Clarifies Plaintiffs Can Only Pursue Civil Penalties Under PAGA – Not Wages

Author: Orlando Arellano

Guest Editor: Danielle Vukovich

December 9, 2019 10:00am

For many years wage and hour class actions were commonplace in California.  Plaintiffs’ lawyers could conjure up class action complaints from virtually nothing – sometimes completely nothing.  One claim that was often added was a claim under the California’s Private Attorney General Act of 2004 (“PAGA”).  Since the statute of limitations on a PAGA claim is one year, and the other class action claims often reached back…

AB 51: California Bans Mandatory Employment Arbitration Agreements

Author: Kyle R. Maland

Guest Editor: Danielle Vukovich

December 9, 2019 10:00am

On October 10, 2019, California Governor Gavin Newsom signed Assembly Bill 51 (AB 51) into law. AB 51 seeks to reverse a series of court decisions that permit employers to unilaterally impose pre-dispute arbitration agreements on their employees as a condition of new or continued employment. Under AB 51, California employers will now be banned from compelling employees into entering mandatory arbitration…

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…

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…

“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.

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