With May 31st 2019, marking the deadline for bills to be passed by their California house of origin, the following are some key pieces of employment legislation that may find their way to Governor Gavin Newsom’s desk in October. Here is a round-up of potential 2020 legislation worth watching:
Articles about California Labor And Employment Law.
Senate Committee Blocks CCPA Bill to Expand Private Right of Action
The California Senate Appropriations Committee recently blocked a bill that would expand a private right of action under the California Consumer Privacy Act (CCPA). As we reported, in late February, California Attorney General Xavier Becerra and Senator Hannah-Beth Jackson introduced Senate Bill 561, legislation intended to strengthen and clarify the CCPA. Then in April, the Senate Judiciary Committee referred the bill to the Senate Appropriations Committee by a vote of 6-2.
Cal/OSHA Relaxes Proposed Wildfire Smoke Emergency Regulation
After receiving over 40 public comments and holding a public meeting on its proposed wildfire smoke emergency regulation, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has eased some requirements of the proposed rule. (If you would like more information on the proposed regulation, you can check out this previous OSHA Law Blog post). Yet, much of the rule has remained the same.
Looking Back and Looking Forward: Retroactivity and Expansion of the California Independent Contractor Test
In April 2018, the California Supreme Court issued its ruling in Dynamex Operations West v. Superior Court (2018) 4 Cal. 5th 903, 916-17 and set forth the standards for determining independent contractor status for purposes of the California Industrial Welfare Commission Wage Orders. The Court presumed that a worker is an employee unless he or she meets the requirements of the “ABC Test.”
California Rules on Meal, Rest Breaks Preempted by Decision of Federal Trucking Regulator, Court Holds
Ruling it lacked jurisdiction to review the Federal Motor Carrier Safety Administration’s (FMCSA) decision barring enforcement of California’s meal and rest period rules with respect to interstate motor carriers, a federal district court in California has dismissed a driver’s meal and rest break claims based on California law. Ayala v. U.S. Xpress Enterprises, Inc., et al., No. 15-cv-00137-GW-KK (C.D. Cal. May 5, 2019).
Federal Law Preempts California’s Meal and Rest Break Laws for Commercial Drivers
Judge George H. Wu of the United States District Court for the Central District of California recently dismissed meal and rest break claims brought under the California Labor Code in a class action against motor carrier U.S. Xpress.
Dynamex Bites Back: Ninth Circuit Rules California’s New Independent Contractor Standard Applies Retroactively
In April 2018, the California Supreme Court issued its landmark decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, making it much more difficult for businesses to classify workers as independent contractors in California through its adoption of the so-called ABC test. Under this expansive new standard, all workers in California are presumed to be employees subject to Industrial Welfare Commission Wage Orders unless the company can prove that the worker meets all three elements of the ABC test:
Plaintiff Succeeds in Claiming Unpaid Reimbursements for More Than 20,000 Miles
After a one-day bench trial, a sales representative for a security company successfully established that his employer had failed to reimburse him for mileage expenses, using only his odometer reading as the basis to calculate the owed mileage. Plaintiff was a “High Volume Sales Representative,” meaning that he worked almost exclusively in the field making sales to new customers, canvassing neighborhoods, meeting with residential developers, and hosting promotion events.
California’s “Your Data, Your Way” Initiative
California keeps making privacy headlines for its trailblazing California Consumer Privacy Act (“CCPA”), set to take effect January 1, 2020, but there is another set of privacy bills making its way through the California state legislature, that, if passed, will provide consumers with further privacy protections.
California’s “ABC” Test for Independent Contractor Analysis to be Applied Retroactively
California employers were dealt another setback in the responding to claims of misclassification of independent contractor status for violations of the Industrial Welfare Commission Wage Order (“IWC Wage Orders”). Noting California’s “basic legal tradition” that “judicial decisions are given retroactive effect,” the U.S. Court of Appeals for the Ninth Circuit has held that the State’s recently-adopted “ABC” test, used in the employee-versus-independent contractor analysis in cases involving IWC Wage Orders, must be applied retroactively.
Ninth Circuit Applies Dynamex Retroactively
Executive Summary: In 2018, the California Supreme Court adopted the “ABC test” for determining whether workers are independent contractors under California wage orders (the Dynamex decision). For a discussion of that decision, please see our May 3, 2018 Alert. The ABC test makes it more difficult in many cases for companies to classify a worker as an independent contractor than under the prior generally-applied common law test. As such, the adoption of the ABC test increases many California employers’ exposure for minimum wage, overtime, meal and rest periods, and other benefits owed to employees but not to independent contractors. On May 2, 2019, in Vasquez v. Jan-Pro Franchising International, Inc., the Ninth Circuit concluded that the ABC test should be applied retroactively to situations that arose before the Dynamex decision came out.
Wage Statements May Contain Fictitious Business Names, California Court of Appeal Affirms
While best practices would be to use the employer’s registered name, a recent Court of Appeal opinion has upheld an employer’s use of its fictitious business name in its wage statements.
What Should Employers do About the CCPA?
Despite its name, the California Consumer Privacy Act, which goes into effect Jan. 1, 2020, potentially could impose substantial compliance burdens on and create significant class-action exposure for every employer that employs California residents and has more than $25 million in annual gross revenues.
Car Wash Employees CLEAN Up with Help of California Department of Labor
The Labor Commissioner fined a Southern-California car wash for more than $2.36 million for alleged wage and hour violations. These fines included both civil penalties and wages owed to employees. This appears to be a continuation of the agency’s enforcement actions against commercial car washes from 2012 and 2015.
CCPA: Employee Personal Information on the Chopping Block
How will the California Consumer Protection Act (CCPA) apply to us? This is a question 0rganizations have asked since the CCPA was first proposed. There remains a number of important questions about the scope of the Golden State’s sweeping privacy law that still need to be answered.