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.Continue reading
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.”Continue reading
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.Continue reading
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:Continue reading
The California Legislature has passed the following labor and employment bills, which will become law effective January 2018.
PRIOR SALARY AND PRIOR CONVICTIONS
Salary History Information
AB 168 prohibits employers from asking job applicants for “salary history information,” which includes both compensation and benefits. But where an applicant “voluntarily and without prompting” discloses salary history information, the employer may rely upon the information in setting the applicant’s starting salary. As a result, questions about prior salary may not be asked in job applications or interviews by an employer or an agent of the employer.
Additionally, AB 168 requires employers to provide the pay scale for a position if the applicant requests it. This bill makes California the first jurisdiction in the country to require that employers provide applicants with the pay scale for a position, upon “reasonable request.”
This bill applies to employers, both private and public, and will become effective January 1, 2018. Continue reading
Given the recent tidal wave of allegations of sexual harassment in politics, the entertainment industry, and social media, employers may want consider the following guidelines in preparation for their company holiday events where alcohol and off-site events may create a combustible mix of unwanted behavior by one employee to another.
Holiday parties may be an excellent opportunity for employees to socialize outside of the confines of the office, and to reward employees for their service, but they can also give rise to employer liability in the absence of appropriate precautions. Before planning your next holiday soiree, review the potential pitfalls and solutions below so that your event can be full of cheer, rather than unpleasant lawsuits.
- Serving Alcohol at Company Functions
While having alcohol available may make typical water cooler conversations less awkward, and can be a way for people to let off steam and celebrate, it can lead to liability for employers in the form of vicarious liability, sexual harassment, social host liability, and other potential issues. Continue reading
by Grace Lim-Ayres, Esq.
On July 13, 2017, the California Supreme Court in Williams v. Superior Court (Marshalls of CA, LLC) issued an opinion addressing the scope of discovery in representative actions brought under PAGA (Private Attorneys General Act of 2004, codified in Cal. Lab. Code § 2698 et seq.). The Labor Code Private Attorneys General Act (PAGA) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations.
The Williams Court unanimously reversed the trial court’s discovery order denying plaintiff access to statewide contact information for fellow employees of other Marshalls stores. It held that plaintiffs in PAGA actions have access to a broad scope of discovery similar to discoverable information in a class action. The plaintiff is entitled to statewide contact information at the onset of the case to determine which cause of action to plead, and whether a broader representative action is warranted.
In what could be considered another blow to employers in an already employee-friendly state, given the relatively low threshold for pleading, employees may now bring more PAGA claims that are in fact “fishing expeditions”, which will in turn require employers to spend more time defending against them. In addition, it is clear that statewide contact information is relevant and discoverable in a PAGA claim at the outset of the case. Continue reading
While sexual harassment has been in everyone’s vocabulary since Dolly Parton’s Nine to Five graced screens in 1980, it has become a topic of increased importance and media coverage as more and more sexual harassment claims are brought against celebrities such as Bill Cosby, President-Elect Donald Trump, and former President Bill Clinton. While you or your employees may not identify with these over-the-top personalities in positions of power, sexual harassment claims are very real and very expensive.
For example, 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. According to the arbitrator’s written order, both women said they were subjected to offensive comments and conduct from the male kitchen staff at the restaurants, including jokes about sex, remarks about female workers’ bodies, and kissing and whistling noises aimed at female employees as they walked by. In addition, one of the women said she saw a group of male kitchen employees watching a pornographic video on a smartphone, and she frequently heard the cooks singing sexually explicit songs in the rear of the restaurant in University City. The reality is that these activities occur more often than you might think.
To continue reading about the risks of sexual harassment in the workplace and how to protect yourself as an employer, continue reading our article in the December issue of the California Employer’s Report. Continue reading
Last month, we discussed how the Department of Labor (DOL) was scheduled to implement a new rule that would increase the minimum salary requirements for exempt employees. The new rule published by the DOL would have doubled the minimum salary requirements for employees from $455/week to $913/week. This rule was supposed to take effect on December 1, 2016; however, employers can breathe easy for a bit longer.
On November 22, 2016 a federal judge from the United States District Court in Texas temporarily blocked implementation of the rule, in response to a request by 21 states and business groups. This delay is temporary, while litigation continues and the court makes a determination as to whether the DOL has the authority to implement such a rule. Continue reading
12/01/16: This Rule is currently on hold, per court order. Please read the latest article for news updates on this topic.
On May 23, 2016, the Department of Labor announced a new, final rule that will take effect on December 1, 2016. To the relief of employers, the new rule does not make any changes to the criteria for classifying employees as exempt. Employers can continue to classify employees as exempt or non-exempt under the same duties tests and criteria they used in the past. However, the principal change comes in the form of several heightened minimum salary requirements.
The DOL estimates that in the first year as many as 4.2 million workers would either need to: (1) be reclassified as non-exempt and paid overtime whenever they work more than 40 hours in a workweek; or (2) receive an increase in their salary to meet the new requirement.
Under the new rule, the minimum annual salary for exempt employees will more than double, from $23,660 ($455 per week) to $47,476 ($921 a week). The minimum annual salary for highly compensated employees will also increase from $100,000 to $134,004. Furthermore, these minimums will continue to automatically increase every three years.
In a new addition to the rule, employers will now be permitted to satisfy up to 10 percent of the annual salary level through non-discretionary bonus and incentive payments, including commissions. Payments to health insurance policies, however, may not be used to satisfy the salary requirement. Continue reading
There are various factors that influence whether an employee must be compensated for his or her travel time to a new work site, or for off-site employment activity. One of the main factors to consider is whether the employee is actually engaging in travel as part of the employer’s principal activity or, whether the employee is engaging in travel for the convenience of the employer.
At the federal level, the Fair Labor Standards Act (FLSA) is the primary law governing travel pay. The standard asks whether the employee’s time is spent primarily for the benefit of the employer. It also includes time spent, even if not doing work, but under the control of the employer, such as on-site, on-call time.
Pursuant to California’s Labor Code, the standard comes down to whether the employee is
subject to the control of the employer; the concept of “control” is narrower than federal standard. While the federal and state laws overlap, California’s Labor Code is of course generally more liberal and more protective of employees.
The definition of hours worked is found in the Industrial Welfare Commission Orders, and refers to the time during which the employee is subject to the control of an employer, and includes all the time the employee is “suffered or permitted to work,” whether or not required to do so. State law does not distinguish between hours worked during the “normal” working hours, or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment. Continue reading
Although holiday parties may be an excellent opportunity for employees to socialize outside of the confines of the office, and to reward employees for their service, they can also give rise to employer liability in the absence of appropriate precautions. Before planning your next holiday soiree, review the potential pitfalls and solutions below so that your event can be full of cheer, rather than unpleasant lawsuits.
- Serving Alcohol at Company Functions
While having alcohol available may make typical water cooler conversations less awkward, it can lead to liability for employers in the form of vicarious liability, sexual harassment, social host liability, and other potential issues.
Even though refraining from serving alcohol altogether is the safest option, in the event that your company plans to serve alcohol at you next function, keep the following tips in mind: Continue reading
The Grady Firm is pleased to announce that it has been selected to serve the the California Employers Association, which serves 9,000 businesses throughout the state of California, as a “Partner Law Firm” and on-demand outside legal counsel. As a Partner Firm, The Grady Firm will offer legal counseling, training, litigation defense, and discounts to CEA members on its legal services.
As a one-stop shop for business owners, the Grady Firm is one of two member firms supporting CEA’s Southern California members, and the only firm specializing in the following areas: employment advising; employment/wage and hour litigation; sexual harassment training; immigration, an business law. All services are offered in English and Spanish. As a Partner Firm, The Grady Firm will offer discounts to CEA members on its legal services. Continue reading
On May 18, 2016, President Obama and Secretary Perez announced the Department of Labor’s final rule updating overtime regulations, to the disappointment of many employers. The new rule, which will automatically provide overtime pay protections to over four million workers within its first year of implementation, goes into effect on December 1, 2016.
The Department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on July 6, 2015 (80 FR 38515) and invited interested parties to submit written comments on the proposed rule at www.regulations.gov by September 4, 2015. The Department received over 270,000 comments in response to the NPRM from a variety of interested stakeholders. The feedback the Department received helped shape the Final Rule. Continue reading