Employment Law

California Legislation Codifying ABC Test Passes State Assembly

By Amber S. Healy, April Szabo, Jonathan Judge

June 11, 2019

On May 29, Assembly Bill (AB) 5 passed the California State Assembly, moving Californians one step closer to full implementation of a new test for independent contractor classification. AB5, which was introduced by Assemblywoman Lorena Gonzalez of San Diego, seeks to codify the California Supreme Court’s April 2018 Dynamex decision, which established the “ABC test” to determine classification of workers as employees or independent contractors.

An Employer's 7-Step guide to navigating newly revived no-match letters

By Davis C. Bae, Shanon R. Stevenson, Jeffrey D. Winchester

May 20, 2019

The Social Security Administration recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, we recommend you take the following seven steps in conjunction with working with your H.R. counsel.

Supreme Court Limits Availability of Class Arbitration

By Ronald W. Novotny

April 30, 2019

On April 24, 2019, the United States Supreme Court issued a death-knell to attempts to force employers into class arbitration by use of ambiguous language that does not explicitly authorize arbitration of employee claims on a class-wide basis.  In Lamps Plus Inc. v. Varela (2019) –– S.Ct. ––––, the Court held that consent to arbitrate a legal claim as a class proceeding may not be inferred from ambiguous language in an arbitration agreement, and that a contract interpretation rule requiring that agreements be construed “against the drafter” cannot substitute for the requisite “affirmative contractual basis” for concluding that the parties agreed to class arbitration.

The Hidden cost of an osha citation

By Jonathan S. Vick

April 1, 2019

Most employers are familiar with CAL/OSHA Citations and Penalties.  Cal/OSHA has been increasing the penalty amounts over the past few years.  The following is a summary of some of the most common penalty amounts:

  • Regulatory violations:  New penalty is $13,047 maximum per violation.
  • General violations:  New penalty is $13,047 maximum per violation.
  • Serious violations:  New penalty is $25,000 maximum per violation.
  • Willful & Repeat violations:  New penalty is $130,464 per violation.

The amount of the maximum penalties has increased substantionally over the past few years but the cost of a violation can include far more than the penalty issued by Cal/OSHA.  A Cal/OSHA citation can also increase the employer’s exposure for workers compensation claims.

Ninth Circuit Restricts The Use of Combined Federal and State Background check Disclosures

By Casandra P. Secord, Jonathan Judge, April Szabo – Atkinson, Andelson, Loya, Ruud & Romo

February 13, 2019

The FCRA and ICRAA require employers to provide “clear and conspicuous” disclosures to applicants or employees before a background check can be conducted. The disclosures must contain specific information required under these statutes, and applicants and employees must consent to the background check.  Employers must follow specific procedures to deny employment or take other types of adverse employment action based on information contained in a background check report

Travel Time in a Company Vehicle is Not Compensable Unless Mandatory

By David Kang, Amber S. Healy, Jonathan Judge – Atkinson, Andelson, Loya, Ruud & Romo

December 4, 2018

On November 15, 2018, the California Court of Appeal clarified that an employer’s provision of a company vehicle for their employees’ use would not convert commute times into “hours worked.”  (Hernandez v. Pacific Bell Telephone Company (11/15/18, C084350)).  This holding confirms long standing law that an employee’s voluntary use of company transportation cannot be wielded as a knife against his or her employer.

Reminders for Hiring Seasonal Employees

By:  John Monroe, Kristina Griffin – Ford Harrison

October 25, 2018

Last week, the Wall Street Journal reported that Holiday season hiring started as early as June this year.  If your company is one of the many that substantially increases its workforce for the holidays, keeping the following practices in mind throughout the season can help to ensure smooth operations and avoid any unnecessary risks.

Numerous federal rulings have upheld the “de minimis” rule for duties lasting less than ten minutes.  Noting that nothing in the reading of the California Wage Orders shows an intent to provide for the de minimis exception, the Supreme Court held that California has not adopted this federal doctrine.  Rather, the Wage Orders require that wages must be paid to an employee for “all hours worked” and all work performed.  While the Supreme Court acknowledged that the California Division of Labor Standards Enforcement Manual, as well as opinion letters issued by that Division, recognize the de minimis exception, those authorities are advisory only, and do not have the binding authority of the Wage Orders.

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On July 18, 2018, the Ninth Circuit Court of Appeals threw out a proposed class action lawsuit alleging that Taco Bell had violated California’s meal period and overtime requirements by requiring employees who purchased discounted meals to stay on the premises during their meal period.  The Court held that Taco Bell did not violate California law and affirmed an order granting summary judgment in favor of Taco Bell in a proposed class action suit titled Rodriquez v. Taco Bell Corp. (9th Cir. Case No. 16-15465).

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In yet another nod to the #MeToo Movement, Governor Brown signed AB 2770 on July 9, 2018 to protect sexual harassment victims and employers from being sued for libel, slander, or defamation by alleged harassers.  The bill passed the legislature with unanimous, bipartisan support and expanded the definition of “privileged publication or broadcast,” as defined in Civil Code Section 47(c).  The definition now includes the following as privileged communications: (1) a complaint of sexual harassment by an employee, without malice, to an employer based on credible evidence and (2) communications between the employer and interested persons regarding a complaint of sexual harassment.  AB 2770 also authorizes an employer to answer, without malice, whether the employer would rehire an employee and whether a decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment.

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