Court Grants Temporary Restraining Order to Pause Enforcement of AB5 Against Motor Carriers

There is some potential good news for California employers, especially in the motor carrier industry. On December 31, 2019, Judge Benitez of the United States District Court, Southern District of California, ruled that the California Attorney General, Secretary of the California Labor and Workforce Development Agency, CA Department of Industrial Relations, CA Labor Commissioner, and Employment Development Department are temporarily enjoined from enforcing Assembly Bill 5 (“AB-5”) against any motor carrier operating in California, pending the Court’s resolution of Plaintiffs’ motion for a preliminary injunction, which is set for hearing on January 13, 2020.

What is AB5?

California recently adopted Assembly Bill 5 (AB 5), authored by Asm. Lorena Gonzalez (D-San Diego). AB 5 places into law an independent contractor test known as the “ABC” test. In order to be considered an independent contractor, a worker must satisfy all 3 parts of the test:

A. The person is free from the control and direction of the hiring entity, both in contract and in fact;
B. The person performs work that is outside the usual course of the hiring entity’s business; and
C. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

For more information on converting independent contractors to employees, download our FREE AB5 Compliance Handout.

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Uber and Postmates Sue CA to Challenge New AB5 Legislation that Effects CA's Growing Gig Economy

On Monday, December 30, 2019, Uber, Postmates, and two drivers filed a lawsuit against the State of California, seeking preliminary and permanent injunctions, in an effort to fight AB 5, which went into effect on January 1, 2020. The two companies, along with Lyft, Instacart and DoorDash, have also put more than $100 million into a campaign to try to bring the issue before California voters in November 2020. The suit claims new law violates constitutional guarantees of equal protection and due process. Read about the lawsuit here, and download our FREE AB5 Compliance Handout.

In its complaint, the Plaintiffs argue that AB5 is “unreasonable and unlawful,” and seek to defend the “fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.

How Can I Complete an I-9 Form for a Remote Employee?

When hiring a new employee, or converting an employee from an independent contractor to an employee, the company must complete an I-9 form in person, within three days of hire, to establish the employee’s authorization to work in the United States. For remote employees who are far from the nearest office, this can pose a problem if there is no employee nearby to inspect their identification. Video and/or Skype is not an acceptable means of fulfilling the “in person” requirement.

The In-Person Inspection Rule

When completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.

What Can an Employer Do in this Situation?

Using an Agent or Authorized Representative

Employers may designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, licensed attorneys, agents, or notary public*. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. However, if an authorized representative fills out Form I-9 on behalf on the employer, the employer is still liable for any violations in connection with the form or the verification process.

If the authorized representative refuses to complete Form I-9 (including providing a signature), another authorized representative may be selected. If the employer hires a notary public, the notary public is acting as an authorized representative of the employer, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.

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USCIS Raises Premium Processing Fee to $1,440 on December 2, 2019

The USCIS final rule increasing the premium processing fee for Form I-129 and Form I-140 from USD $1,410.00 to $1,440.00 takes effect December 2, 2019. Applications postmarked on or after December 2, 2019, must include the new fee.

The premium processing fee will increase to $1,440 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. This increase, which is done in accordance with the Immigration and Nationality Act, reflects the full amount of inflation from the implementation of the Premium Processing fee in June 2001, through August 2019, based on the Consumer Price Index for all Urban Consumers (CPI-U). USCIS last increased the fee in 2018.


Premium Processing is an optional service currently authorized for certain petitioners filing Forms I-129 or I-140. The system allows petitioners to request 15-day processing of these forms if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees. It cannot be waived.

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Why Should You Hire a Lawyer Instead of Doing it Yourself?

In the age of the “Do-It-Yourself” (DIY) mentality, entrepreneurs who are resourceful and eager to cut costs may attempt to perform legal work themselves by using the Internet as a resource for sample agreements, forms, and answers to their legal questions.  While the Internet is an amazing tool and the great equalizer, it is no substitute for advice from trained legal counsel.  Just as identifying your medical symptoms on sites like WebMD is no substitute for visiting a doctor, using the Internet alone as the source of legal advice can cause more cost and headaches in the long run.  The following examples illustrate some of the downsides to using the Internet instead of a lawyer.

1. DIY Sites Lack Customization

Many entrepreneurs believe that filling out a form on a site like LegalZoom  or Rocketlawyer is all they need to do to start a business.  However, taking this approach will deprive the entrepreneur of crucial legal advice that could cost hundreds of thousands of dollars later.

For example, is the owner concerned about personal liability?  How many shareholders will there be? Will it be a closely-held family business, or will there be many investors involved?   How will the profits be distributed?  What steps need to occur before the entity can go public or be sold?  What makes the most sense: an LLC, LLP, general partnership, professional corporation, non-profit, or other entity?  A qualified attorney can help you navigate these issues, and provide you with the advice that a website can’t.

Are you an employer looking to transition your independent contractors to employees? We offer customized forms from the time of hire to termination, and Employee Handbooks that are tailored to your business.

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What You need to Know about Converting Independent Contractors to Employees under California AB-5 – #GIGeconomy

On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, solidifying a tighter standard of rules for classifying a worker as an independent contractor. The new standard, known as the Dynamex standard, codifies and expands the earlier California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles. It  replaces the former Borello test, and puts in place a more simple three-pronged ABC test. The significant effect is that many workers in California will now be classified as employees instead of independent contractors (also informally known as “1099” workers). This change is one of the most significant disruptions to California employment law in decades. The law took effect on January 1, 2020. FIND OUT how to comply with this law by downloading our easy-to-understand instructions.

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BREAKING NEWS: Many Workers Now Classified as Employees, Not Independent Contractors

On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, codifying a tighter standard of rules for classifying a worker as an independent contractor. The new standard, known as the Dynamex standard, codifies and expands the earlier California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles. It  replaces the former Borello test, and puts in place a more simple three-pronged ABC test. The significant effect is that many workers in California will now be classified as employees instead of independent contractors (also informally known as “1099” workers). This change is one of the most significant disruptions to California employment law in decades. The law has now gone into effect as of January 1, 2020.

The new law is convoluted, and has numerous exceptions for various professions, as discussed in further detail below. To further complicate matters, the law codifies Dynamex for purposes of claims made under the California Labor Code, Unemployment Insurance Code, and wage orders, but curiously does not mention the California Government Code, under which workers may seek redress for harassment and discrimination, among other things.

In addition, the newly created exemptions to the ABC test will apply “retroactively to existing claims and actions to the maximum extent permitted by law.”

In order to ensure that your company’s workers are properly classified (in order to avoid substantial fines and expensive misclassification lawsuits), contact a qualified employment law attorney as soon as possible to ensure you are complying with the law and following the new rules.

What Is the Potential Impact of This Change?

According to the LA Times, “State Capitol Democrats and organized labor say their new ‘gig’ law will correct the misclassification of 1 million California workers who are falsely deemed independent contractors.”

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Deadline Changed on Time to Comply with California Anti-Harassment Training

On September 3, 2019, Governor Gavin Newsom signed Senate Bill (SB) 778 to extend the deadline for employers to complete their Sexual Harassment Prevention Training. The deadline has been extended by a full year, from January 1, 2020 to January 1, 2021. The new bill also allows covered employers who have provided anti-harassment training in 2019 to wait two full years before providing refresher training.

The purpose of the bill is to give employers sufficient time to provide these trainings in a manner that values their importance and provides a greater impact towards improving equality in the workplace. A recent professional association survey found that over 80% of Human Resources and Operations Managers are aware of the new training requirements, but had not booked the training for their employees nine months into 2019.

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Jennifer Grady Navigates Tricky Legal Situations in the Workplace on AutoVitals Digital Shoptalk Radio

On September 4, 2019,  Jennifer Grady, Esq. was featured on episode 31 “Legally Speaking: Handling Tough Legal Situations” of The AutoVitals Digital ShopTalk Radio, with host Tom Dorsey, to discuss a myriad of legal situations that can arise in a workplace from Sexual Harassment to record-keeping and what new business owners and employers need to know to be successful.

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Jennifer Grady Discusses How to Prevent Sexual Harassment Lawsuits “Remarkable Results Radio”

On August 9, 2019, Jennifer Grady, Esq. was featured on episode 456 of The Remarkable Results Radio, with host Carm Capriotto, to discuss Sexual Harassment in the workplace and what employers can do to prevent it.

Key Talking Points

During the radio show, Jennifer and Carm discussed important points on sexual harassment in the workplace including:

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Truck Driver Shortages May be Solved by Green Cards for Unskilled Workers (EB-3)

For the past 15 years, the United States has been experiencing a severe shortage of available and qualified truck drivers. According to a recent report by the nation’s largest trucking industry group, the American Trucking Associations (ATA), by the end of 2018, the industry was short 60,800 driver positions. The ATA predicts that this trend will only get worse, with the shortage potentially expanding to 160,000 positions by 2028. The report warns that if the industry cannot hire 1.1 million new drivers over the next decade, the nation’s freight demands may not be able to be met. However, for employers that are having difficulty recruiting and retaining truck drivers, sponsoring a foreign truck driver for a Green Card based on employment may be a viable solution.

Trucking Industry Recruitment Struggles

 According to the ATA report, the main issue surrounding driver shortage is one of “quality over quantity.” Reports show that while there are plenty of people applying for truck driving job, unfortunately, not nearly enough of those applicants meet the stringent standards associated with the trucking industry.  A 2015 ATA study found that 88% of trucking companies indicated that they were receiving sufficient numbers of applicants, but that many were simply not qualified for the jobs to which they applied.

Another issue faced by the trucking industry is driver age. According to the ATA report, the current average age of a driver is 46 and the average age of a new driver in training is 35.  Recruiting younger drivers is vital to maintaining a long-lasting and stable workforce within the industry as many drivers approach the age of retirement. Without a consistent pool of qualified applicants, the industry faces an aging out that will further exasperate the shortages.

Finally, the industry is also facing challenges with regard to turnover and job-hopping. The ATA report notes that driver turnover is a serious issue facing the industry with as much as 89% of drivers changing jobs at large trucking companies in 2018. This means that trucking companies are finding it increasingly difficult to retain long-term employees, thus reducing incentives to invest in vital training and development for those employees. As the driver shortages increase over the next decade this turnover rate will likely increase as well.

Legal Immigration as a Solution

One possible solution to help alleviate some of the driver shortages is to bring qualified foreign workers to the U.S. to cover these jobs. While applying for any immigration benefit to the United States is a complex and potentially long process, the benefits can nonetheless be worth the effort. This is especially true in an environment where a severe shortage of qualified workers means a potentially devastating loss in business opportunities.

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Client’s Corner: How I Got a Green Card Based on My Employment as a Skilled Worker (EB-3)

One of the ways to obtain a Green Card based on employment is through the EB-3 Immigrant Visa. The following is an overview of the process by one of our clients, Reza Moghtaderi Esfahani, who received his Green Card based on employment.

“My application for Adjustment of Status was based on the EB-3 employment category. I was among the few cases of F-1 students who were lucky enough to have met an employer that agreed to sponsor their Green Card without requiring them to go through the H1-B process. Even though I had a fully-funded acceptance letter to a Master’s Degree program in Computer Science, I wanted to continue working in the professional world after receiving my Bachelor’s Degree, so I discussed this issue with my employer towards the end of the first year of my Optional Practical Training (OPT).

Reza Moghtaderi Esfahani

Once I found The Grady Firm and they prepared my application with information provided by me and my employer, my attorneys filed an Application for Prevailing Wage Determination with the Department of Labor in February 2017. Then my employer began the recruitment process for US workers by posting job ads in local newspapers and online as part of the PERM process. After a few months of running the ads, and when no US citizen or Permanent Resident applied for the position, we obtained an approved LCA and filed a form I-140 with USCIS in December 2017. The I-140 was approved in January 2018. We then submitted my I-485 application to Adjust Status to that of a Permanent Resident in February 2018.

Soon after, I received my Employment Authorization Card (EAD) and travel document (Advance Parole) in April 2018. I was now able to work after the expiration of my OPT, and was eligible to travel outside of the United States while my Adjustment of Status application was pending.

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Sexual Harassment Training Requirements by State

As the #MeToo movement has grown over the past two years, and claims against powerful individuals continue to surface in the media and on social media, employers and companies need to adjust their response polices as one thing is clear: sexual claims are very real, very expensive, and very destructive.

The following cases are real-world examples of how sexual harassment claims can cost employers in terms of time, money, and employee morale, and can cause pain and distress to employees.

  • A recent claim against the popular P.F. Chang’s China Bistro chain cost the company $1 million in response to two employees claims that they were repeatedly sexually harassed and were subjected to a hostile work environment.
  • Two female employees at a California winery were subject to repeated sexual harassment by the winery’s general manager and then subsequently retaliated against by the company. A Los Angeles jury awarded $11 million dollars to the two women. Each woman received $1 million for past emotional distress; $1.5 million for future emotional distress and $3 million in punitive damages. In addition to the $11 million dollars to the women, their attorneys will also receive their attorney’s fees.
  • Ford announced it would pay up to $10.1 million to settle a racial- and sexual-harassment investigation at two Chicago plants. 
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12 Cities in California to Raise Minimum Wage Again on July 1, 2019

It’s that time to update your payroll again! Twelve cities and counties throughout the state of California will again be updating their minimum wage. Until December 31, 2019, the current state-wide California minimum wage is $11.00 per hour for companies with 25 or fewer employees, and $12.00 per hour for employers with 26 or more employees. You can find the most updated information about California minimum wage on the Department of Industrial Relations website. The minimum wage shall be adjusted on a yearly basis through 2023 according to the pre-set schedule shown on the DIR website.

The following cities will be updating their minimum wage to reflect the following hourly rates below. Of note, some cities have different wages based on the number of employees they have–25 or less, or 26 or more:

  • Alameda – $13.50
  • Berkeley – $15.59
  • Emeryville – $16.30
  • Fremont (26 or more employees) – $13.50
  • City of Los Angeles (25 or fewer employees) – $13.25
  • City of Los Angeles (26 or more employees) – $14.25
  • Unincorporated Los Angeles County (25 or fewer) – $13.25 (Unincorporated LA County generally mirrors the minimum wage rates in the City of Los Angeles)
  • Unincorporated Los Angeles County (26 or more) – $14.25
  • Malibu (25 or fewer employees) – $13.25
  • Malibu (26 or more employees) – $14.25
  • Milpitas – $15.00
  • Pasadena (25 or fewer employees) – $13.25
  • Pasadena (26 or more) – $14.25
  • San Francisco – $15.59
  • San Leandro – $14.00
  • Santa Monica (25 or fewer employees) – $13.25
  • Santa Monica (26 or more employees) – $14.25

Be sure to inform your payroll company or and accounting department of these changes. In addition, changes in minimum wage may affect an employee’s exempt or non-exempt status, so it’s important to review how the change in minimum wage may affect this classification.

It’s always a good idea to provide your employees with an updated Notice to Employee form that reflects their change in wages. This form must be distributed to employees by California Labor Code section 2810.5. Please check your employees’ personnel files to ensure this form has been provided to them, and reflects the company’s up-to-date Paid Sick Leave and worker’s compensation information.

For more information on California minimum wage, or to review your current employment law policies and documentation, contact The Grady Firm.

About The Grady Firm. P.C.

JGrady Firm-Logo-2016

The Grady Firm, P.C. attorneys provide our clients with the tools to arm themselves and minimize risk with general employment law counseling; I-9 audits, custom Employee Handbooks; assistance with hiring, firing, discipline, leave, and termination; personnel file forms and audits; and sexual harassment and leadership training in English and Spanish. In addition, by combining years of experience as legal counsel for both U.S. and international companies, The Grady Firm acts as the outsourced Global Mobility Department for multi-national corporations seeking to move personnel across borders with visas and Green Cards based on employment, investment, and family relations.

Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.

*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

Don’t Wait Until Q4! Book Your Sexual Harassment Prevention Training by May 20 and Receive a Discount

California employment law now requires that employers with 5 or more employees provide one (1) hour of training to employees at least once every two years; and two (2) hours of training to managers within six months of hire or promotion, and every two years thereafter. This training must be completed by January 1, 2020, even if employees were just trained in 2018. A recent professional association survey found that over 80% of Human Resources and Operations Managers are aware of the new training requirements, but have not booked training for their employees. This means that there will likely be a rush to find suitable training options in November or December, and training professionals may already be booked for the end of the year.

To avoid the Fourth Quarter rush, The Grady Firm has a solution. Now through May 20th, The Grady Firm is offering $150 off our full-day, and $50 off our half-day, on-site Sexual Harassment Prevention Training program*.

The Grady Firm provides on-site, classroom-style training in
English and Spanish, and includes custom-drafted materials, such as our
Proprietary Power Point Presentation, Certificates of Participation, Quizzes, and Anti-Harassment Policy. Don’t let your employees fall asleep or tune-out with traditional online training!

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