By Recently, in Garcia v. Border Transportation Group, LLC, the California Court of Appeals weighed in on the scope of the California Supreme Court’s April 2018 ruling in Dynamex Operations West, Inc. v. Superior Court. In Dynamex, the Supreme Court adopted a new standard for determining whether a California worker is an employee or independent contractor under the California Industrial Welfare Commission’s (“IWC”) wage orders. This new standard, called the “ABC test” holds that a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (more…)
Labor & Employment
California Expands Sexual Harassment Training for Employees
By Jeremy Mittman and Erica Parks
In his final bill-signing period as governor, California Governor Edmund G. Brown signed into law numerous employment-related bills and vetoed others. One bill that passed significantly expands the scope of required sexual harassment training for employees in California.
Currently, the relevant provisions of California’s Fair Employment and Housing Act (“FEHA”), sections 12950 and 12950.1 of the California Government Code, require employers with 50 or more employees to provide sexual harassment training for all supervisory employees. SB 1343 amends these provisions, instead requiring employers of five or more employees—including seasonal and temporary employees—to provide sexual harassment training for both supervisory and non-supervisory employees by January 1, 2020. (more…)
New York State Provides Model Sexual Harassment Prevention Materials for Employers
By Following its passage of new laws requiring that all New York State employers provide annual sexual harassment prevention training and implement sexual harassment prevention policies, effective on October 9, 2018, New York State has now published final versions of compliance materials for employers on a dedicated website, which includes: (1) a model sexual harassment policy; (2) model training materials; (3) a model complaint form; (4) Frequently Asked Questions (“FAQs”) relating to the model materials and new laws; and (5) lists of minimum standards for sexual harassment policies and trainings for employers who wish to prepare their own. (more…)
NLRB Proposes Rule Changing Joint-Employer Standard
Recently, the National Labor Relations Board (NLRB) published its “Notice of Proposed Rulemaking; request for comments” in the Federal Register setting forth a proposed new standard for establishing a joint-employer relationship. The joint-employer analysis is significant because entities found to be joint employers may be jointly liable for alleged unfair labor practices or under collective bargaining agreements. In various circumstances, parent/subsidiary companies, franchisers/franchisees and client/temporary services providers have been argued to be joint employers. (more…)
Summer Roundup: New California Employment Laws
By Erica Parks
September 30, 2018, was the cut-off for Governor Brown to sign or veto bills passed by the California legislature this year. So it’s not surprising that that the summer months saw a flurry of employment legislation across Governor Brown’s desk.
Most significantly, the Governor vetoed AB 3080, which, as we alerted you last month, would have effectively banned non-disclosure agreements and arbitration agreements with respect to certain harassment and discrimination claims. (more…)
California Legislative Efforts to Ban Non-Disclosure Agreements and Arbitration Agreements in the Workplace Edging Closer to Becoming Law
By AB 3080, a closely watched bill affecting the workplace, recently passed the Senate and now is awaiting the Governor’s final approval. A product of the “me too” movement, AB 3080 does a number of things that are intended to prohibit employers from limiting disclosure and discussion of alleged workplace harassment or discrimination, and to participate in harassment or discrimination investigations or proceedings. The provisions in AB 3080 appear primarily to be directed to “nondisclosure agreements” and to arbitration agreements, although neither type of agreement is expressly identified as such in the text of the bill. (more…)
NLRB’s General Counsel’s Office Releases Seven New Advice Memos
Photo credit: iStock.com/BCFC
On July 13, 2018, the National Labor Relations Board (NLRB) released seven new memos from its Division of Advice, which is part of the NLRB’s Office of the General Counsel. The memos resulted from requests for guidance by various NLRB Regional Directors on cases their offices were handling. The General Counsel’s office can release advice memos to the general public at its discretion after a case has been closed. The earliest of the seven memos was issued in 2014 and the latest is dated June 14, 2018. (more…)
Employers Cannot Rely on the De Minimis Doctrine to Avoid Paying Small Amounts of Regularly Occurring Off-the-Clock Work
By Emma Luevano
The de minimis doctrine, which states that the law does not concern itself with “trifles,” has been applied by federal courts to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record. On Thursday, July 26, 2018, the California Supreme Court ruled that this doctrine does not apply when the otherwise compensable time occurs regularly. According to the Supreme Court, the advent of modern technology in recording time makes reliance on the de minimis rule nearly unnecessary. The Supreme Court, however, left for another day whether the de minimis doctrine can excuse an employer from paying for compensable time which does not occur regularly.
In Troester v. Starbucks Corp., a Starbucks employee claimed that, after clocking out, he was required to perform tasks such as transmitting sales data, setting alarms, and sometimes bringing in patio furniture or walking coworkers to their cars, which took an additional 4 to 10 minutes of time per day. A federal judge dismissed the case, finding that it would be impractical to require Starbucks to record the brief amounts of time employees spent doing work tasks before leaving their stores. The plaintiff appealed, and the Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether the de minimis rule applies to claims for unpaid wages brought under California Labor Code Sections 510 (providing for overtime pay), 1194 (setting forth a private right of action for minimum wage and overtime violations), and 1197 (providing for minimum wage). In Thursday’s ruling, the Supreme Court addressed the question in two parts. (more…)
NLRB General Counsel Issues Pro-Employer Guidance Regarding Workplace Rules
By Erica Parks
On June 6, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued Memorandum 18-04, titled “Guidance on Handbook Rules Post-Boeing.” In it, the NLRB’s General Counsel (GC), provided guidance to the NLRB’s regional offices regarding how to analyze the legality of common employer policies in light of the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017). The Boeing decision and the GC’s memo represent a pro-employer shift away from the NLRB’s decidedly more pro-employee positions during the Obama administration.
California Court of Appeal Provides New Guidance on Meaning of “To Employ” Workers
Recently, in Curry v. Equilon Enterprises LLC, the California Court of Appeal ruled that a wage and hour class action against Shell Oil could not proceed because the service station manager bringing the suit was not a Shell employee. Rather, the manager was employed by ARS, the company that contracted with Shell to operate the station.
Similar to a franchisor-franchisee relationship, ARS had a contract with Shell to operate multiple gas stations. The plaintiff managed two locations. She was hired by ARS, trained by ARS employees, reported to ARS employees, and supervised ARS employees. ARS paid plaintiff and made all disciplinary and promotional decisions regarding her employment. Plaintiff brought a class-action suit against ARS and Shell, claiming she and other managers were misclassified as exempt employees, denied overtime pay and denied meal and rest breaks. The plaintiff also claimed that ARS and Shell were joint employers. (more…)
