Labor & Employment

Timing Is Everything

Law should know concept, The lawyer explained to the client to plan the case in court.

Photo Credit: istock.com/Jirapong Manustrong

By Jeremy Mittman and Alfredo Ortega

Why This Matters

Earlier this month, the U.S. Supreme Court unanimously ruled in Fort Bend County v. Davis. The message received loud and clear for employers is that timing is everything when it comes to discrimination cases and the use of claim-processing rules, embedded in Title VII, as an affirmative defense. Employers would be well served to ‘watch the clock’ and avoid losing the opportunity to receive an early dismissal. The Court ruled that federal courts can hear discrimination claims under Title VII of the Civil Rights Act if employers do not timely raise the defense that workers failed to first file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) or state enforcement agencies, as Title VII requires, before filing suit in federal court. Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. (more…)

HIT THE ROAD, JACK: UBER DRIVERS ARE INDEPENDENT CONTRACTORS ACCORDING TO NLRB

Taxi navigation

Photo Credit: iStock.com / lovro77

By Jonathan Turner

Why This Matters

On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize.  The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber.   The NLRB’s standard only applies in the labor context.  It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here). (more…)

A Sign of the Times? Tennessee Expands Anti-Bullying Law to Private Employers

Two Male Colleagues Fighting In Office

Photo credit: iStock.com/AndreyPopov

By Jeremy Mittman and Samuel Richman

On April 23, 2019, Tennessee Governor Bill Lee signed a bill into law extending the Healthy Workplaces Act, Tennessee’s workplace bullying prevention law, to private employers. The law went into effect immediately upon signing. Tennessee’s anti-bullying law encourages employers to adopt policies to address and prevent “abusive conduct” in the workplace. The law defines “abusive conduct” as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.” (more…)

The Ever-Expanding Dynamex Decision

Exam Answer sheet in exam room

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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…)

2017 and 2018 EEO-1 Pay Data Reporting Requirements Due September 30th

Photo credit: iStock.com/BCFC

By Bethanie Thau

Why This Matters

In early March, the U.S. District Court for the District of Columbia revived an Obama-era rule that requires larger companies to report workers’ pay data broken down by gender, race, and ethnicity. Last week, the Court issued an order requiring employers to submit 2018 EEO-1 pay data by September 30, 2019. Just this morning, the EEOC announced it will also collect 2017 data. This means that employers with 100 or more employees (and federal contractors with 50 or more employees) will be required to report their employees’ 2017 and 2018 W-2 compensation information and hours worked by the September deadline. The deadline to submit all other EEO-1 data, such as race and gender information, remains May 31, 2019. (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…)

California Passes Immigrant Worker Protection Act

US Customs and Border Protection

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By Janice Luo and Justine Lazarus

California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450), which restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant.  It also requires employers to notify their employees before and after certain immigration inspections take place.  The new law, which adds Sections 7285.1, 7285.2, and 7285.3 to the California Government Code, and Sections 90.2 and 1019.2 to the California Labor Code, will take effect on January 1, 2018.

In conflict with the U.S. Immigration and Customs Enforcement’s (ICE) plans to increase enforcement actions under the Immigration Reform and Control Act (IRCA), which includes criminal and civil penalties for employers who knowingly employ unauthorized workers; the new California law seeks to protect foreign workers from unfair immigration-related practices, potentially causing problems for employers who must comply with federal and state laws.  (more…)

Federal Court Lowers the Boom on DOL’s Higher Salary Regulation

November 23, 2016

By Erica Parks

It has been a rough few weeks for the Department of Labor (“DOL”) in Texas federal court. Yesterday in Sherman, Texas, U.S. District Judge Amos Mazzant granted a nationwide preliminary injunction temporarily blocking the DOL’s new overtime regulations, which were scheduled to take effect on December 1, 2016. As we alerted you last month, those regulations would, among other things, nearly double the salary basis required to qualify for any of the “white collar” exemptions from federal overtime laws. Opponents of the rule have argued that it oversteps the authority granted to the DOL by Congress. (more…)

The EEOC Is Keeping Busy: EEOC Issues Additional Guidance About the ADA & Final Rules on Wellness Programs

By Emma Luevano and Justine Lazarus

EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act

Concerned about the number of complaints filed against employers for failing to provide reasonable accommodations under the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) recently issued a reminder to employers about their obligations. While clarifying that the additional guidance does not create any new obligations, the EEOC reminded employers about the following:

* It is not sufficient to grant employees the maximum amount of leave under the Family and Medical Leave Act (“FMLA”) and/or state equivalent (such as California’s Family Rights Act (“CFRA”)) to meet obligations under the ADA.  Instead, under the ADA, employers must also consider granting additional leave as a form of reasonable accommodation (beyond that required by the FMLA or CFRA), unless doing so will create an undue hardship for the employer.  As the EEOC indicated, “the Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show an undue hardship.”  As you already may know, the “undue hardship” standard is not easy for employers to meet. (more…)