Articles Posted in Posts for Employees

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.

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.

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.

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.

California law prohibits discrimination against job applicants and employees on the basis of age, race, color, religion, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), national origin, ancestry, mental and physical disability (including HIV and AIDS), medical conditions (such as cancer and genetic characteristics), marital status, genetic information, sexual orientation, gender (including gender identity and gender expression), and military and veteran status.

In order to avoid the appearance of discrimination, employers should limit requests for information during the pre-employment process to those details essential to determining a person’s qualifications to do the job. The following are some general guidelines that employers and employees should know regarding the employment application process.

NAME: An employer should never ask questions about an individual’s name that require the applicant to disclose ancestry, national origin, race, religion or marital status, (i.e., asking for an applicant’s “maiden” name, or asking questions about the origin of a name, rather than simply asking if other names have been used). However, it is acceptable to ask an applicant’s name or previous name for purposes of checking their past work record.

In 1970, after finding early success as a musician, a twenty-five-year-old Neil Young purchased the Broken Arrow Ranch in Northern California. As part of the purchase, Mr. Young inherited two elderly employees, Louis Avila and his wife Clara, who lived on the ranch as caretakers. A fond relationship developed, and Mr. Young eventually wrote the song “Old Man” as a tribute to Mr. Avila. The lyrics of the song compare two men born decades apart by musing, “Old man, look at my life, I’m a lot like you were.”

Forty-eight years later, baby boomers who enjoyed this folk-rock tune are now finding themselves in situations more akin to Mr. Availa than Neil Young and are now the employees of younger owners and managers. Unfortunately, many of these employees are not inspiring soulful ballads. Instead, they are being treated poorly or forced out after years of dedicated employment.

Age Discrimination

If you have been recently fired, you have come to the right place. Being fired is a terrible experience. Not only does it take away your livelihood, but it is often unfair and unjustified. But just because the termination is unfair, it does not mean it is unlawful.

I meet with recently terminated employees on a daily basis and they all want to know if they have a case for wrongful termination. Unfortunately, most of the time, I must tell them that they do not. This blog post explains the basics of wrongful termination.

  1. “At-Will” Employment