California Supreme Court Holds Dynamex ABC Test Applies Retroactively         

Author: David Kahn

Guest Editor: Grace Shuman

March 11, 2022 4:58pm

The California Supreme Court issued an opinion regarding the highly contested “Dynamex ABC” test.  The court held in Vasquez v. Jan-Pro Franchising International, Inc.  the test in Dynamex applies retroactively when determining whether a worker should be classified as an employee or independent contractor for the purpose of wage and hour laws applies retroactively.

California’s Minimum Wage Hike

Author: Kathryn Lee Colgan

Guest Editor: Grace Shuman

March 11, 2022 4:07pm

California employers have had many difficulties over the past years, not only with the ongoing and changing COVID issues, but also with employee retention.  Another challenge employers face this year comes in conjunction with the recent minimum wage increase due to SB3.

California’s Trucking Law Could Increase Exposure to Nuclear Verdicts™

Author: Cynthia Speegle

Guest Editor: Grace Shuman

January 28, 2022 9:00am

The United States Supreme Court refused to hear the case brought by Cal Cartage Transportation Express LLC challenging the appellate court ruling upholding California’s Assembly Bill 5 (“AB5”).  Though AB5’s impact on rideshare companies is often dissected, the law also significantly impacts the trucking industry, and can, without careful planning, expose trucking companies to Nuclear Verdicts™.

New York Updates Vaccination Requirements for In-Person Workplaces

Author: Michael D. Drews

Guest Editor: Grace Shuman

January 13, 2022 8:40am

December 27, 2021 brought a shift in vaccination requirements for New Yorkers. Businesses and employees should be aware of their new obligations.  More employees are now required to be vaccinated.  Employees in eligible positions must take specific steps, and businesses are required to demonstrate their employees have taken such steps.  Businesses who do business with independent contractors should also be aware of special requirements.

AB 701 – America’s First Law Protecting Employee’s Lunch Over Efficiency

Author: Rico Dominguez

Guest Editor: Grace Shuman

January 13, 2022 8:39am

On January 1, 2022, the nation’s first warehouse transparency law will go into effect, permanently changing the quota requirements in the warehouse distribution industry.  AB 701 requires warehouse employers provide employees with written disclosures related to distribution quotas.  Employees will not be required to fulfill these quotas at the expense of meal or rest breaks.

Joint Employment – What Does It Mean?

Author: Steven O'Brien

Guest Editor: Grace Shuman

January 13, 2022 8:37am

The Supreme Judicial Court of Massachusetts recently clarified the “joint employment” test for employers, providing specific guidance on the issue.  In Jinks v. Credico (USA) LLC, the court reviewed standards for independent contractors and whether those should apply to joint employers.

Whose Employee Are They Anyway?

Author: Michael Kutzner

Guest Editor: Kiran Gupta

December 3, 2021 9:00am

Typically, businesses directly hire employees to fill various roles within their organization.  In these situations, the employer is likely responsible for the acts of the employee if the employee is acting within the course and scope of their employment (i.e., “on the job”).  Businesses will also utilize staffing agencies at times to hire temporary workers.  In these situations, who is the employer of these temporary workers – the staffing agency or the host employer?  A recent Washington case, Department of Labor and Industries v. Tradesmen International, LLC, clarified.

New York State Requires Employers to Notify of Electronic Monitoring

Author: Michael D. Drews

Guest Editor: Grace Shuman

December 3, 2021 9:00am

New York Governor Kathy Hochul recently signed Senate Bill 2628 into law.  Senate Bill 2628 provides for a higher level of protection for workers regarding electronic monitoring.  This new bill “requires prior written notice upon hiring and once annually to all employees, informing them of the types of electronic monitoring which may occur.”

Are Employer-Mandated Vaccines the Future? New York State Bar Association Says Yes

Author: Michael D. Drews

Guest Editor: Grace Shuman

September 13, 2021 2:33pm

On August 27th, the New York State Bar Association’s Emergency Task Force on Mandatory Vaccination and Safeguarding the Public’s Health (“Task Force”) released a report detailing its discussions on the COVID-19 vaccine. Among its many recommendations, the Task Force urged lawyers, employers, and their employees to get vaccinated, as well as teachers, students (when approved for their age group), and university students, faculty, and staff. In addition, the Task Force recommended vaccine access be provided in correctional facilities and in immigration detention facilities.

Appellate Court Refuses to Permit Arbitration of Threshold “Employee or Independent Contractor” Issue

Author: Orlando Arellano

Guest Editor: Kiran Gupta

June 9, 2021 11:26am

California adopted a novel approach to enforcing the Labor Code of California when it enacted the Private Attorney General Act of 2004 (“PAGA”). This law allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency (“LWDA”) provided the formal notice and waiting procedures of the law are followed.

Women’s Initiative Article Attorney Spotlight: Lynn Allen

Author: Kelley Harman

Featured: Lynn Allen

June 4, 2021 9:00am

“The future is female.” We hear this phrase often these days. Women are attending law school at high rates and we finally have a female vice-president. At Tyson & Mendes, we have exceptional female partners, women in various leadership roles (attorney and non-attorney), and the number of female attorneys we have practicing law at our firm is higher than the national average. But what about those women who have been practicing law and litigating for more than 20 or 30 years? The women who came before us – what are their stories? Here at Tyson & Mendes, we have many women who fit this bill. Our spotlight is on one such woman—a “trailblazer,” as one of her partners recently called her. This woman is Lynn Allen, the Managing and Equity Partner of Tyson & Mendes’ Arizona office.

Recent Ninth Circuit Court Ruling Effectively Halves California PAGA Penalties

Author: Orlando Arellano

March 8, 2021 8:00am

As anyone who litigates employment law in California knows, the Private Attorneys General Act of 2004, (“PAGA”) can at least superficially create business-closing penalties against the employer.  Last week, in Bernstein v. Virgin America, Inc., the United States Court of Appeals for the Ninth Circuit provided some measure of relief to those companies (and individuals) either facing, or soon to be facing, potential PAGA penalties to be assessed against them.

Can Employers Require COVID-19 Vaccination?

Author: Aurora Levinson

March 8, 2021 8:00am

Last December, the U.S. rolled out its first vaccines against COVID-19, marking a turning point in the pandemic.  Many employers wondered whether they could or should require employees to vaccinate.  Another question is whether this requirement would violate ADA and religious mandate regulations.

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

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

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).

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

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.

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