Employment

The Ever-Expanding Dynamex Decision

Exam Answer sheet in exam room

Photo credit: iStock.com/noipornpan

By Jeremy Mittman and Danton Liang

Why This Matters

The day after the Ninth Circuit Court of Appeals ruled that the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court applies retroactively (see here), California’s Division of Labor Standards Enforcement (DLSE) released an opinion letter concluding that Dynamex’s ABC test applies to both IWC Wage Order claims and certain Labor Code provisions that enforce Wage Order requirements. The California Court of Appeals has ruled that Dynamex applies only to claims brought under the IWC Wage Orders (see here) and the DLSE’s recent opinion letter seems to expand what that means.

While California state and federal courts are not bound by DLSE opinion letters (meaning they could reach a different conclusion as to exactly which California Labor Code claims fall under Dynamex), the DLSE’s opinion letter reflects the way that agency will be interpreting Dynamex moving forward. This will impact employers who face DLSE wage claims where employees contend they were improperly classified as independent contractors. (more…)

Dynamex Goes Back in Time

Businessman holding sign clock. Concept business time is money

Photo credit: iStock.com/marchmeena29

By Jeremy Mittman

Why This Matters

On Thursday, May 2, in Vazquez v. Jan-Pro Franchising International, Inc., a three-judge panel of the Ninth Circuit Court of Appeals held that the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court applies retroactively. 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. As we have previously discussed (see here, here, and here), Dynamex’s reach continues to grow and the Ninth Circuit’s ruling in Vazquez should be of particular concern to employers, who now face potential liability for their past decisions to classify workers as independent contractors rather than employees under a standard that did not exist at the time. (more…)

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…)

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…)

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…)

New York City & State Implement Stronger Protections Against Workplace Harassment

New York City Dawn

Photo credit: iStock.com/Sean Pavone

By Greg Hessinger

As states begin to focus heightened attention on sexual harassment in the workplace in the wake of the #MeToo movement, New York State (“NY State”) and New York City (“NYC”) have implemented stronger protections for employees against workplace harassment. The new requirements, which have been passed into law in NY State and NYC, will impact employers’ training, policies & procedures, and employment agreements for New York employees.

New York State: (more…)