Labor & Employment

California Court of Appeals Dials in on Call-In Practices

By Jeremy Mittman and Louise Truong

Recently, the California Court of Appeals ruled in a 2-1 split decision that employees who are required to call in two hours prior to the start of their shifts to ask whether they needed to report to work are entitled to reporting time pay.  In Ward v. Tilly’s, Inc., the Court held that Tilly’s on-call policy triggered the “Reporting Time Pay” provision of California’s Wage Order 7, which applies to the retail industry. The Ward majority held that Wage Order 7’s Reporting Time Pay provision applied because Tilly’s workers “reported” for work when they called-in.

Under the Reporting Time Pay provision, employers are required to pay employees reporting time pay, as follows: “Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay.” For example, if a sales clerk is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is still obligated to pay the employee four hours of his or her regular rate of pay.  (more…)

No Payday for Plaintiffs

By Jeremy Mittman and Samuel Richman

Last week, in Goonewardene v. ADP, LLC, the California Supreme Court addressed the question of whether, when an employer hires an independent payroll service provider (or “payroll company”) to take over all the payroll tasks that would otherwise be performed by an internal payroll department, the employee may bring a civil action against not only his or her employer but against the payroll company as well.  The Court held that an employee who believes he or she has not been paid the wages due under the applicable labor statutes and Wage Orders may not maintain causes of action for unpaid wages against a payroll service provider for: (1) breach of contract, (2) negligence, or (3) negligent misrepresentation.  In reaching this holding, the Court reversed the Court of Appeal’s ruling that the employee may maintain those three causes of action for unpaid wages against the payroll company even though a payroll company cannot properly be considered an employer of the hiring business’s employee. (more…)

Website Accessibility – Americans with Disabilities Act Impact

hands of business person working on computerBy Jonathan Turner and Susan Kohn Ross

Background

Title III of the Americans with Disabilities Act (“ADA”) mandates that public accommodation must be provided to disabled persons to allow for the “full and equal enjoyment” of the related privileges, goods, services, advantages and accommodations as those provided to able bodied persons. The owner of any business is responsible for making sure those accommodations are made with “reasonable modification.” The ADA makes it very clear that a business that does not provide for that accommodation is engaging in unlawful discrimination 42 U.S.C. section 12182(b)(2)(A)(iii).

The statute provides for various examples of where public accommodations must be provided, including locations such as an inn, a restaurant, a theater, an auditorium, a bakery, a laundromat, a depot, a museum, a zoo, a nursery, a day care center, and a gymnasium. Noticeably absent from that list are websites. That’s because websites did not exist at the time the statute was passed, and Congress has not expressly addressed the issue in the interim. (more…)

Shuttling Between Independent Contractor and Employee

By Jonathan Turner

Recently, the National Labor Relations Board (“NLRB” or the “Board”) returned to its long-standing independent-contractor standard, known as the common law agency test. In SuperShuttle DFW, Inc., the Board ruled that shuttle-van-driver franchisees of SuperShuttle at Dallas-Fort Worth Airport are not statutory employees under the National Labor Relations Act (“NLRA”), but rather independent contractors excluded from the NLRA’s coverage.  (more…)

Keep On Truckin’

By Jeremy Mittman and Samuel Richman

In a blow to the transportation industry, last week, the U.S. Supreme Court ruled that the trucking company, New Prime Inc., cannot compel arbitration in a class action alleging it failed to pay independent contractor driver apprentices minimum wage.  In New Prime Inc. v. Oliveira, the Court held that transportation workers engaged in interstate commerce, including those classified as independent contractors, are exempt from the Federal Arbitration Act (the “FAA”).  Justice Neil Gorsuch wrote the Court’s 8-0 opinion (Justice Brett Kavanaugh was recused from the case).  (more…)

Sex Education for Minors?

By Jeremy Mittman and Hilary Feybush

As we previously reported, this past fall, Governor Jerry Brown signed into law AB 2338, which includes a provision requiring minors 14-17 years of age and their parents/guardians to receive sexual harassment prevention training prior to the issuance of an entertainment work permit by the California Labor Commissioner.  Earlier this week, the Department of Labor Standards Enforcement (“DLSE”) published its guidance regarding AB 2338 on its website.  The DLSE’s very brief guidance does answer some questions regarding the new law, yet leaves some unanswered. (more…)

Don’t Miss the Party

By Jeremy Mittman and Bethanie Thau

Express waivers to Section 1542 of the California Civil Code are so ubiquitous in settlement and release agreements that most parties likely just note their presence without actually reading them.  On January 1, 2019, California’s Senate Bill No. 1431 went into effect, amending Civil Code Section 1542.  The prior version of the statute read: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” The amended version of Section 1542 adds “releasing party” and “released party” alongside creditor and debtor, respectively, and also changes “must have materially affected” to “would have materially affected” the releasing party’s decision to settle, so that it states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

(more…)

CA Employers Hungry for Time-Rounding Meal Breaks

time to eatBy Jeremy Mittman and Stephen Rossi

Why This Matters

On November 21st, the California Court of Appeals ruled in Donohue v. AMN Services, LLC regarding meal breaks and how they get tracked. Overall, Donohue is a positive wage and hour development for California employers. The case is also helpful in providing a roadmap for a design of an exceptionally good (and now, court approved) electronic meal break recording system (further described in the explanation of the decision), which enables an employer to track the reason for a noncompliant meal period and obtain notification with minimal administrative burden. California employers would be well-served to consider adopting a similar meal break monitoring system, which—considering the cost of defending against meal break claims, a perennial favorite of plaintiffs’ attorneys—would be money well spent. The Court’s decision and the intricacies of the case are further described below. (more…)

Minors Ages 14 to 17 To Receive Sexual Harassment Prevention Training Before Issuance of Entertainment Work Permit

By Jeremy Mittman and Erica Parks

In September, along with many other new employment bills, Governor Jerry Brown signed into law AB 2338, which includes a provision requiring minors 14-17 years of age and their parents/guardians to receive sexual harassment prevention training prior to the issuance of an entertainment work permit by the Labor Commissioner (with few exceptions, such permits are required in order for a minor to appear in any television show, movie, recording, etc.)

The new law provides that the training “shall consist of training administered by a third-party vendor, on-site, electronically, via Internet Web site, or other means” and must cover, at a minimum, the components specified in the Department of Fair Employment and Housing’s informational pamphlet on sexual harassment (Form 185). (more…)

Employee Nonsolicitation Provisions May No Longer Be Lawful in California

By Danton Liang

In 2008, the California Supreme Court in Edwards v. Arthur Andersen LLP (2008) 44 Cal. 4th 937 set forth a broad prohibition against non-compete provisions, but left open the question of whether employee non-solicitation provisions are enforceable.  A decade later, the California Court of Appeal for the Fourth Appellate District may have finally answered that question in the negative.  (more…)