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Home > Archives for CDF Labor Law LLP

CDF Labor Law LLP

California Court Of Appeal Holds That App-Based Driver And Delivery Businesses Can Properly Classify Workers As Independent Contractors

March 17, 2023 | CDF Labor Law LLP Filed Under: State Law Articles

On March 13, 2023, in Castellanos v. State of California, the California Court of Appeal handed down a pink unicorn decision in favor of app-based driver and delivery businesses that permits them to properly classify workers as independent contractors. In so doing, it breathed life back into Proposition 22 (Bus. & Prof. Code sections 7448-7467) and California’s gig economy.

Proposition 22’s Roots In AB5

In 2019, the California Legislature codified the holding in Dynamex by enacting Assembly Bill No. 5 (“AB5”), which established a test for distinguishing between employees and independent contractors. The net effect of AB5 is that workers are presumed to be employees with few narrow and complicated exceptions. Consequently, AB5 made it nearly impossible for workers and businesses of any kind to lawfully engage with each other on an independent contractor basis and for businesses to retain independent contractors without incurring the risk of, at best, being placed into an arduous audit process or, at worst, being deemed to have improperly classified its workers, and all of the repercussions associated with that finding. AB5 has, not surprisingly, been the subject of much litigation in the time since its original enactment.

Naranjo v. Spectrum Security Services, Inc.

March 3, 2023 | CDF Labor Law LLP Filed Under: General (CA)

Earlier this week, the California Court of Appeal reached a decision that may ease employers’ worries when presented with a wage and hour lawsuit.

California’s plaintiff-friendly laws provide avenues for plaintiffs to fill their pockets with penalties and attorneys’ fees, in addition to any wages they claim are owed. However, as decided on Monday in Naranjo v. Spectrum Security Services, Inc., plaintiffs will have to work a little harder to prove they are entitled to additional penalties and fees.

When an employee claims that they have not been paid all the wages they were entitled to both during and after their employment, they typically seek additional penalties and fees under Labor Code sections 203 and 226. To prevail on these claims, the employee must prove that the employer’s failure to pay certain wages was either “willful” under Labor Code Section 203, or “knowing and intentional” under Labor Code Section 226. In Monday’s decision, the Court held that an employer’s “good faith dispute” can prevent the employee from collecting penalties and attorneys’ fees for “willful” or “knowing and intentional” violations.

In this decision, the Court recognized that California Code of Regulation Section 13520 applies to Labor Code Section 203. Under this regulation, if the employer has a “good faith belief” that it complied with the law at the time final wages were due, then the employer’s violation is not considered “willful.” As a result, an employer who presents evidence establishing a good faith dispute can prevent the employee from collecting penalties under Labor Code Section 203.

Labor Code Section 226 allows plaintiffs to collect both penalties and attorneys’ fees if the employee can successfully demonstrate that the employer knowing and intentionally failed to provide compliant wage statements. In this case, the plaintiff argued that the employer’s mere knowledge that meal period premiums were not included on his wage statements demonstrated a knowing and intentional violation. However, the employer demonstrated that it had a good faith belief that it was not violating any laws when it did not include meal period premiums on its wage statements, therefore the Court held that it could not have knowingly and intentionally violated Labor Code Section 226.

Unfortunately, a minority of federal district courts in California do not hold that an employer’s good faith belief is sufficient to preclude a finding of knowing and intentional violation. These courts adopted the standard the plaintiff argued that “knowing and intentional” can be satisfied by simply showing that an employer provided an inadequate wage statement that was not a result of clerical error or inadvertent mistake. However, this Court disagreed with this interpretation, concluding that a good faith dispute can preclude plaintiffs from being entitled to penalties and attorneys’ fees under Labor Code Section 226.

CDF Wage and Hour Task Force – Monthly Tips (February 2023)

February 28, 2023 | CDF Labor Law LLP Filed Under: Wage & Hour (CA)

This is the second post of a new monthly series of CDF’s Labor & Employment Law Blog providing California employers with wage and hour compliance tips and best practices.

On the heels of the Ninth Circuit’s decision blocking California’s bar to mandatory arbitration agreements, as reported earlier this month in the CDF blog and the United States Supreme Court’s ruling in Viking River Cruises v. Moriana, effectively permitting arbitration of individual Private Attorneys General Act (PAGA) claims, many California employers previously reluctant to roll-out mandatory arbitration agreements given uncertainties in developing case law are now re-considering this decision. California employers with existing arbitration agreements are, or at least should be, reviewing and likely revising existing agreements to comport with recent case law to ensure continued enforcement.

In wage and hour litigation, one of the primary benefits of having an arbitration agreement is the ability to include a class and representative action waiver, thereby requiring an employee to arbitrate his or her individual wage and hour claims, in addition to other purported employment-related disputes (except sexual harassment/assault), in arbitration rather than facing defense of alleged class action or representative/PAGA claims in court. The enforceability of such waivers is an incredibly important and valuable weapon/shield for California employers who are faced with class and PAGA claims filed in court.

CDF Webinar: From First Day to Green Card: The Lifecycle of an Employment Based Immigration Case

February 26, 2023 | CDF Labor Law LLP Filed Under: HR Headlines

March 14, 2023 from 10-11 am (Pacific)

Green card processing continues to be backlogged, causing lengthy wait times, unpredictability and added stress for employers hiring foreign nationals. During this webinar, Chair of CDF’s Immigration Practice Group, Richard Green, will review the process and pitfalls of employing foreign nationals using nonimmigrant visas from the employer’s point of view, all the way from onboarding through green card approval.

Topics covered during this complimentary webinar include:

– An explanation of the types of nonimmigrant visas and limitations on their use
– Permanent Residency/Green Card processing
– The obligations that both the employer and the employee undertake when sponsoring/using an employment-based visa
– Saying goodbye: Terminating a nonimmigrant employee
– Expected timelines and costs

This webinar is geared toward in-house lawyers and professionals in human resources, recruiting and staffing, who are responsible for the immigration function within their organizations.

CA MCLE, SHRM and HRCI credit pending.

Could States and Municipalities in California Use Taxes to Limit Remote Work in the Future?

February 22, 2023 | CDF Labor Law LLP Filed Under: General (CA)

Many large California employers have been granted significant state and local tax incentives to establish the physical locations of their businesses in California, or within certain municipalities in California. These can come in the form of enterprise zone tax incentives, direct tax incentives, or other similar programs. The purposes of these tax incentives are to (a) spur economic growth and activity in the area; and (b) increase the tax base in the area by bringing in well-paid jobs, where the income is taxed. However, this economic growth does not happen if the majority of the workforce is working remotely. The tax incentives disappear when employees work remotely in a different state or jurisdiction.

When these arrangements were contemplated, well before the COVID-19 pandemic, the concept of large portions of the workforce working remotely was never considered (although New Jersey may have been ahead of its time requiring workers to show up at least 80% of the time – but paused this requirement during the pandemic). Now state and local governments, including those in California, are starting to realize that the fluidity of where workers are located is a problem, and are looking at this issue more closely as it could influence the future of remote and hybrid work.

Final Privacy Regulations Anticipated To Go Into Effect In April 2023 – Enforcement Scheduled to Start July 1, 2023

February 20, 2023 | CDF Labor Law LLP Filed Under: General (CA)

By: Final Privacy Regulations Anticipated To Go Into Effect In April 2023 – Enforcement Scheduled to Start July 1, 2023

By: Final Privacy Regulations Anticipated To Go Into Effect In April 2023 – Enforcement Scheduled to Start July 1, 2023

On February 14, 2023, the California Privacy Protection Agency (CPPA) submitted its

California PAGA Law Benefits Attorneys More Than Employees

February 16, 2023 | CDF Labor Law LLP Filed Under: General (CA)

Last week, former CDF Labor Law attorney, and current CEO of the California Chamber of Commerce (“Cal Chamber”), Jennifer Barrera, published a compelling argument surrounding the issues concerning the California Private Attorney General Act and a ballot measure on the Act coming up next year. California Law Helping Workers File Labor Claims Needs Reform – Advocacy – California Chamber of Commerce (calchamber.com). According to Ms. Barrera’s article, over the last six years, attorneys representing employees on PAGA claims obtained an eight billion dollars in PAGA settlements from California employers– an astonishing amount. Ms. Barrera’s article also indicates that despite this number, individual employees receive a pittance from these actions. The article cited to a 2019 report from former California Labor Commissioner Julie Su and other officials of the California Labor Commissioner’s office that expressly provided that “The substantial majority of proposed private court settlements in PAGA cases review by [the Labor Commissioner’s office] fell short of protecting the interests of the state and workers.“

Ninth Circuit Delivers Employers a Valentine – Blocks California’s Bar to Mandatory Employment Arbitration Agreements

February 16, 2023 | CDF Labor Law LLP Filed Under: General (CA)

The Ninth Circuit gave California employers a belated Valentine’s Day present by upholding the District Court’s injunction against enforcement of California Assembly Bill 51 (“AB 51”) because it inhibited arbitration contrary to the Federal Arbitration Act’s (“FAA”) policy of encouraging arbitration of disputes.

In an attempt to avoid federal preemption, AB 51 provided that employment arbitration agreements would be enforced but it created a criminal offense and civil liability against employers who required existing employees or applicants for employment to consent to arbitration as a condition of employment. Chamber of Commerce v. Bonta relied on Supreme Court precedent that concluded that states’ rules burdening the formation of arbitration agreements, or making arbitration agreements more difficult to enforce, ran afoul of the FAA. Chamber of Commerce v. Bonta concluded that AB 51 discouraged the formation of arbitration agreements because the criminal penalties and civil liability presented a severe burden to the formation of arbitration agreements, all antithetical to the Federal policy favoring arbitration. As a result, it held that AB51 was federally preempted by federal law.

FY 2024 H-1B Lottery Registration Period Opens March 1

February 1, 2023 | CDF Labor Law LLP Filed Under: Visas

Employers who recently hired F-1 foreign students and wish to continue to employ them beyond the one or three years of Optional Practical Training employment authorization should contact immigration counsel and start making a plan. USCIS announced that it would begin accepting electronic registrations for H-1B visas on March 1, 2023. The registration period runs until March 17, 2023, at noon Eastern time. Selected registrants will be notified in late March or early April. Selectees will then have 90 days to file an H-1B petition with the US Citizenship and Immigration Service. If the petition is approved, the visa will issue on October 1, 2023.

CDF Webinar: California’s New Pay Transparency/Equal Pay Law in 30-Minutes

February 1, 2023 | CDF Labor Law LLP Filed Under: Wage & Hour (CA)

In September of 2022, Governor Newsom signed Senate Bill 1162 into law. That law creates and expands upon a number of obligations for California employers, including:

1. Requiring all California employers with 15 or more employees to include the pay scale for all advertised positions in all job postings
2. Requiring all California employers to provide current employees with the pay scale for their position, if requested
3. Requiring all California employers to maintain certain additional wage records for the duration of employment, plus three years after employment terminates
4. Requiring California employers with 100 or more employees to submit certain employee pay data, broken down by location and analyzed based on race/ethnicity and gender, to the California Civil Rights Division
5. Requiring California employers with 100 or more employees to provide the California Civil Rights Division with the ownership names of all labor contractors used to supply workers

Last month, the California Department of Industrial Relations published some FAQs to help guide compliance.

In this thirty-minute webinar, attorneys Mark S. Spring and Wanja Guy will review the statutory obligations and FAQs, help clarify these new obligations in practical terms, and provide their insights on what California employers should think about to put themselves in the best position to be in compliance with all the new Pay Transparency and Equal Pay obligations that are now in effect. Spring and Guy will also discuss the new penalties that the state can levy on California employers who are not in compliance with the obligations.

Come join us later this month for this important thirty-minute program.

CA MCLE, HRCI and SHRM credit pending.

CDF Wage and Hour Task Force – Monthly Tips

January 31, 2023 | CDF Labor Law LLP Filed Under: Wage & Hour (CA)

This is the first post of a new monthly series of CDF’s Labor & Employment Law Blog providing California employers with wage and hour compliance tips and best practices.

California’s reputation as a breeding ground for wage and hour litigation – the state is responsible for a disproportionally large share of such lawsuits nationwide – seems set to continue. With that, as the first month of 2023 comes to a close, California employers should ensure that they have complied with new minimum wage requirements to avoid potential costly litigation.

California Court of Appeal Curbs “I Do Not Recall Signing” Defense to Arbitration Agreements

January 27, 2023 | CDF Labor Law LLP Filed Under: General (CA)

By: California Court of Appeal Curbs “I Do Not Recall Signing” Defense to Arbitration Agreements

By: California Court of Appeal Curbs “I Do Not Recall Signing” Defense to Arbitration Agreements

Employers face many challenges when enforcing employment arbitration agreements, including employees disavowing their handwritten signature on the arbitration agreement, claiming that they

Trending: Requested Accommodations For Mental Health Issues

January 20, 2023 | CDF Labor Law LLP Filed Under: Disability Discrimination (CA)

While California’s COVID-19 State of Emergency is set to end on February 28, 2023, and California’s Supplemental COVID Supplemental Sick Pay has already sunsetted, the effects of the pandemic continue to impact California employers. Most recently, there has been a major uptick in employee requests for accommodation for mental issues such as depression, stress, and anxiety related to pandemic issues.

Whether it is depression from being isolated while working from home, stress from being short-staffed during COVID-related leaves, or anxiety from facing an employer mandate to return to in-office work, when a California employee raises a mental health concern, there are many issues the employer should keep in mind.

Here are some quick tips for dealing with mental health accommodations:

Trending:  Requested Accommodations For Mental Health Issues

January 20, 2023 | CDF Labor Law LLP Filed Under: Reasonable Accommodation

By: Trending:  Requested Accommodations For Mental Health Issues

While California’s COVID-19 State of Emergency is set to end on February 28, 2023, and California’s Supplemental COVID Supplemental Sick Pay has already sunsetted, the effects of the pandemic continue to impact California employers. Most recently, there has been a major uptick in

USCIS Announces Further Expansion of Premium Processing Service

January 18, 2023 | CDF Labor Law LLP Filed Under: General (Immigration)

On January 30, 2023, US Citizenship and Immigration Service (“USCIS”) will permit employers petitioning for multinational managers and individuals seeking a national interest waiver to select premium processing for their petition. Premium Processing is a faster adjudication path the employer may select for certain employment-based immigrant and non-immigrant petitions. If selected, USCIS will render a decision in fifteen calendar days. Regular/non-premium processing times are measured in months.

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