Yesterday, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court (Lee), adopting a very broad view of the workers who will be deemed “employees” as opposed to “independent contractors” for purposes of claims alleging violations of California’s Wage Orders. This is a surprising decision that magnifies the risk of classifying workers as independent contractors in California, and is likely to lead to increased claims (in an already litigious area) challenging such classifications in this state. This is particularly true because the Court’s decision makes it easier for plaintiffs to succeed in getting a class certified in an independent contractor misclassification case.
Articles Discussing General Workplace Issues in California.
Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, discuss developments from the ongoing California state legislative session. Bruce and Corinn review key labor and employment measures under consideration in Sacramento, including a spate of bills aimed at curbing sexual harassment. They highlight numerous noteworthy measures on a range of topics, covering wage and hour proposals, potential updates to the Private Attorneys General Act, and assorted anti-discrimination bills.
The Sacramento County Board of Supervisors has approved an Ordinance requiring hotel and motel operators in Sacramento County to provide employees with a panic button or notification device that can be used to call for help when an employee reasonably believes sexual harassment activity is occurring in the employee’s presence. The panic button is designed to be used in emergency situations to summon hotel security or other appropriate staff to the employee’s location.
Fueled by the need of legislators to politicize the “me-too” movement, there has been a lot of media attention in recent months on proposed legislation in many states to limit arbitration and/or confidentiality of sexual harassment-related claims.
A decision out of the Northern District of California serves as a reminder that service industries need to carefully balance their commitment to client care with wage and hour obligations. A case manager at a large medical facility filed a class action claim under the California Private Attorneys General Act (“PAGA”) against the facility for multiple violations of federal and California law, including failure to pay overtime wages and failure to provide meal and rest breaks. The crux of her complaint was that she and other employees felt pressured to work off-the-clock in order to adequately tend to a larger number of patients after “cost-cutting measures” increased each employee’s workload.
Just three years after the enactment of California’s paid sick leave law under the Healthy Workplace Healthy Family Act of 2014 (AB 1522), a new bill has been introduced seeking to increase the amount of sick leave employers must provide employees under California law. The bill, AB 2841, was introduced on February 16, 2018, by Assemblywoman Lorena Gonzalez Fletcher. Assemblywoman Gonzalez Fletcher authored California’s existing paid sick leave law.
Last week, the San Francisco Board of Supervisors approved amendments to the City’s Fair Chance Ordinance, an ordinance that originally was enacted in 2014 to place limits on employers’ consideration of criminal history in making employment decisions.
In 2014, San Francisco enacted its ban-the-box law, which significantly restricted the ability of employers to inquire into, and use, criminal records for hiring and other employment purposes.1 This Fair Chance Ordinance (FCO) lists specific types of convictions and information that employers can never inquire into, including convictions more than seven years old. The FCO also bars employers from asking about an applicant’s conviction history (or requesting a background check) until after either (1) a live interview with the applicant, or (2) a conditional offer of employment made to the applicant. Moreover, if the employer intends to make an employment decision based on conviction history, the FCO requires the employer to first conduct an individualized assessment of whether the conviction is job-related.
California employers can breathe a sigh of relief in light of a recent decision from the Southern District Court of California. In Ruiz v. ParadigmWorks Group, Inc., the Court held that an employer is not required to extend an employee’s “multi-month” medical leave of absence where the employee is totally disabled and cannot provide a definite end date to her leave.
In Hamid H. Khan v. Dunn-Edwards Corporation (January 4, 2018), the California Court of Appeal for the Second Appellate District held that the plaintiff failed to comply with required administrative procedures prior to bringing a claim under the California Private Attorneys General Act (“PAGA”) because he failed to provide sufficient notice to the California Labor and Workforce Development Agency (“LWDA”) and the employer that he sought to bring the PAGA claim on behalf of, not only himself, but on behalf of a group of “aggrieved employees.”
In Lawson v. ZB, N.A. (2018) 18 Cal.App.5th 705, California’s Fourth District Court of Appeal recently ruled that the two elements comprising damages under Labor Code § 558 – (a) underpaid wages and (b) denominated assessments – are indivisible. Because a claim under Labor Code § 558 is indivisible and it is a civil penalty encompassed by the California Private Attorneys General Act (“PAGA”), the entire claim under Labor Code § 558 is not subject to any arbitration agreement between an employee and an employer, even if the employee waived his or her right to bring a class or representative claim against his or her employer.
Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.
California’s public and private employers are prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allow the agent access to employee records unless the agent provides a judicial warrant. Labor Code 90.2(a)(1).
The First Appellate District had a second occasion to rule upon class certification issues in the case of Duran v. U.S. Bank (“Duran II”), and again ruled that class treatment was improper because Plaintiffs failed to demonstrate that common issues predominated or that the case would be manageable as a class action, thereby affirming the trial court’s ruling denying class certification. CDF represented U.S. Bank during the entire pendency of this case, including this most recent appeal.
California employers should remember that they must revise their notice to employees regarding the federal Earned Income Tax Notice to include California’s version of it. Effective January 1, 2017, employers must revise their notice to employees regarding the earned income tax credit when issuing W-2 or 1099 forms.