Southern California Employment Law Blog

Employment Law Updates for 2020

October 24, 2019 | Daniel A. Thompson

Employment law is constantly evolving. Every year, the state of California passes new labor laws that impact the employment relationship. The following are some of the most prominent changes that will take effect on January 1, 2020.

AB 5: Independent Contractors

AB 5 codifies California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court, making it more difficult to treat workers are independent contractors. The passage of this bill has been discussed in depth in a previous blog article.

California Governor Passes AB5, Codifying Restrictions on Independent Contractors

September 19, 2019 | Daniel A. Thompson

On September 18, 2019, Governor Gavin Newsom signed into law, Assembly Bill 5 (“AB5”), codifying the landmark case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex), which made it more difficult for employers to classify workers as independent contractors.

Dynamex, and now AB5, establish a presumption that a worker who performs services for a hirer is an employee for purposes of claims for wages and benefits arising under wage orders issued by the Industrial Welfare Commission. In addition, AB5 reaffirms the 3-part test of Dynamex, commonly known as the “ABC” test, to establish that a worker is an independent contractor.

Under the ABC Test, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that:

Associational Discrimination

September 12, 2019 | Daniel A. Thompson

Luis Castro–Ramirez worked as a truck driver for Dependable Highway Express, Inc. For several years, Castro-Ramirez’ supervisors permitted him to work an earlier shift so that he could be home each evening to administer dialysis for his disabled son.

In 2013, a new supervisor placed Castro-Ramirez on a later work schedule. Castro-Ramirez objected because the shift would not allow him to be home early enough in the evening to tend to his disabled son. The supervisor terminated Castro-Ramirez, claiming he “had quit by choosing not to take the assigned shift.” Castro–Ramirez sued alleging disability discrimination. Castro-Ramirez v. Dependable Highway Express, Inc., (Ct. App. 2016) 2 Cal. App. 5^th 1028, 1031.

The Fair Employment and Housing Act (“FEHA”), prohibits employers from discriminating against an employee on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. Gov. Code § 12926.

“The Duel” – An Employer’s Duty to Provide a Safe Work Environment

August 30, 2019 | Daniel A. Thompson

In the fifth season of The Office (US), Andy Bernard learns that his fiancée, Angela, is having an affair with Dwight Schrute. The love triangle comes to an end when the two men challenge each other to a physical fight to win her affections.

California’s Occupational Safety and Health Act of 1973 (“Cal-OSHA”) requires that employers provide “safe and healthful working conditions for all California working men and women.” (Labor Code § 6300). This is generally understood to mean the prevention of industrial accidents.

“Hire a man to do nothing” – California On-Call Pay

August 9, 2019 | Daniel A. Thompson

In the 1940’s, a soap company in Chicago hired a small crew of firefighters to live on the premises and be available for emergencies. The crew officially worked a nine-hour shift but were also required to sleep in a designated location and respond alarms, if necessary. A legal dispute arose about whether the “on call” time should have been compensated as hours worked. The U.S. Supreme Court ruled that it did, with Justice Robert Jackson stating:

“Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” Armour & Co. v. Wantock (1944) 323 U.S. 126, 133.

The Supreme Court’s ruling opened the door for a litany of subsequent cases on the issue of “on call pay.” In the days of modern cellphone technology, the issue has become even more complex. After all, with a cellphone in every pocket, a beckoning call from an employer is just seconds away.

Invasion of Privacy in the Workplace

July 3, 2019 | Daniel A. Thompson

In 1973, the NCAA enacted a rule prohibiting student athlete drug use. Unfortunately, there was no standardized drug test to enforce the rule. At the 1983 Pan American Games in Caracas, Venezuela, several college student athletes tested positive for prohibited drugs, causing great embarrassment for the NCAA and raising questions about competitive fairness. How was the alleged “drug ban” being enforced?

The NCAA needed a solution, which, unfortunately, would invade the privacy of student athletes. In 1986, the NCAA adopted a mandatory drug testing program. Among other things, the drug testing policy required student athletes (1) to disclose medications they may be using and other information about their physical and medical conditions; (2) to urinate in the presence of a monitor; and (3) to provide a urine sample that reveals chemical and other substances in their bodies.

In 1990, a linebacker on the Stanford football team and the co-captain of the Stanford women’s soccer team sued the NCAA, alleging that the drug testing requirements violated their right to privacy. In the landmark case of Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 38, the California Supreme Court held that Article I, Section 1 of the California Constitution, which recognizes certain “inalienable rights” including the right of privacy, creates a private right of action against private parties.

An Employment Lawyer’s Guide to Pregnancy

June 18, 2019 | Daniel A. Thompson

Pregnancy is a life-changing experience. Many blogs cover the physical and emotional challenges of pregnancy, but this post is intended to be a step-by-step of guide to the legal rights of expectant mothers in the workplace.

Morning Sickness

Among the many “joyful” experiences of pregnancy is first trimester morning sickness – a nauseous feeling caused by increased hormones. The term is a misnomer because morning sickness can occur at any time of the day – even during work hours.

Record-keeping Responsibilities for Employers

June 4, 2019 | Daniel A. Thompson

When Thomas Jefferson commissioned an expedition to explore the western frontier in 1803, he called upon two men who, among other things, were valiant record-keepers. Meriwether Lewis, a secretary, and William Clark, a cartographer, spent three years exploring and documenting an unknown territory. Some of the most important things to come from the Lewis and Clark Expedition were their personal journals, which contained invaluable information used by those who followed their trail westward.

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The value of record-keeping cannot be overstated. Advanced civilizations require written language, arts, sciences and government – which all begin with record-keeping. The same can be said about business. While all businesses keep records, there is a significant difference between a cave painting and the Great Library of Alexandria. Unfortunately, some business owners remain in the stone age of record-keeping, which can create significant liability.

Both Federal and State law require employers to create and maintain employment records. This includes payroll records, employee’s name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions. These records must be maintained for three years. [Lab.C. §§ 226(a), 1174(d), 29 CFR § 516.5]. Other records, such as time and earning cards and work schedules must be kept for two years. [29 CFR § 516.6].

Breaking News: The ABC Test is Retroactive

May 6, 2019 | Daniel A. Thompson

In April 30, 2018, the world of employment law was shaken by the decision of the California Supreme Court to apply a stricter standard for determining whether a worker was an employee or independent contractor. The new standard, set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, is known as the ABC Test.

Soon after the California Supreme Court published its landmark decision of Dynamex Operations W. v. Superior Court, (2018) 4 Cal. 5th 903, 962 (“Dynamex”), the law firm of Davis & Wojcik APLC experienced an influx of employer consultations at a rate never before experienced by a single court ruling. The immediate application of the ABC Test caught many employers by surprise, and they were eager to know how Dynamex would impact their business. Their concern was well-founded.

Immediately after the Dynamex decision was published, the employment world was left wondering whether the ABC Test would be applied retroactively. Thanks to the U.S. Court of Appeals for the Ninth Circuit, we now have an answer.

“Ban the Box” – Where Criminal and Employment Law Meet

May 3, 2019 | Daniel A. Thompson

In the classic novel The Scarlet Letter, author Nathanial Hawthorne depicts the story of a woman who was forced to wear a scarlet letter ‘A’ on her dress so the townspeople could publicly shame her for adultery. The major theme of The Scarlet Letter is the suffering of individuals from social stigmatizing – a vice that has only increased since the novel’s publication in 1850.

In recent years, the “Ban the Box” movement has sought to eliminate similar stigmatisms about convicted criminals who, after paying their debt to society, find it difficult to secure employment due to prejudice. The goal of this movement is to decrease discrimination against applicants who may have a criminal history. In 2015, President Obama “banned the box” on applications for federal government jobs. Currently, eleven states have mandated the removal of conviction history questions from job applications for private employers. In 2017, California passed multiple statutes that prohibit employers from considering expunged criminal records in hiring decisions.

Davis & Wojcik APLC recently settled an employment case against a major automotive company that withdrew its offer to hire a prospective employee after the corporation unlawfully investigated the employee’s expunged criminal record. The criminal conviction occurred more than ten years prior and was not the type of crime that affected the position.