Labor Law

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

Taxi navigation

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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

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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

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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

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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…)

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…)

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…)

Customers Now Jointly Liable with Port Trucking Companies for Certain Labor Violations

Truck in port

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By Susan Kohn Ross

One of the bills signed into law by California Governor Edmund G. Brown from the most recent legislative session aims to hold customers accountable when hiring trucking companies that have a record of Labor Code violations. Under SB 1402, customers who utilize trucking companies to deliver goods from California’s ports may be held jointly and severally liable for certain Labor Code violations committed by those trucking companies. Here is the explanation for the need for this new law: “Holding customers of trucking companies jointly liable for future labor law violations by port drayage motor carriers who they engage, where the customer has received advance notice of their record of unsatisfied judgments for labor law violations, will exert pressure across the supply chain to protect drayage drivers from further exploitation.” And “Customers have the market power to exert meaningful change in the port drayage industry that has eluded California drivers for more than a decade.” (more…)