Publications Archives

California Legislature Passes New Bill Affecting Independent Contractor Classification

By: Huy M. Tran and Kerri N. Polizzi

On Wednesday, September 11, 2019, the California legislature passed a landmark bill known as Assembly Bill 5 (AB-5) that will reshape many companies' ability to classify workers as independent contractor. Most notably, the bill directly targets Uber and Lyft's classification of their drivers. AB-5 is now en route to the desk of Governor Newsome, whose signature would solidify the new law.

California Governor Extends Sexual Harassment Training Requirement Deadline

By: Tyler D. Kring

California Governor Gavin Newsom signed Senate Bill (SB) 778 on August 30, 2019, amending Government Code Section 12950.1. The Governor's signature extends the deadline for California employers to comply with sexual harassment training requirements for non-supervisory employees from January 1, 2020 to January 1, 2021.

As you may recall, fellow Associate Kerri N. Polizzi published an article titled "Getting a Jump Start on Compliance with California's Growing Sexual Harassment Training Mandate" explaining SB 1343's new requirements for employers with five (5) or more employee to provide at least two (2) hours of sexual harassment, abusive conduct, and gender harassment training to all supervisory employees, and one (1) hour of such training to all non-supervisory employees.

Racial Discrimination Based on Hairstyle Now Prohibited in California

By: Tyler D. Kring

On nearly a daily basis, our firm analyzes claims related to alleged "discrimination" in the workplace. Routinely, we must clarify the difference between what an individual believes to be discrimination and what California labor law says is illegal discrimination.

The California Department of Fair Employment and Housing ("DFEH") enforces laws that protect individuals from illegal discrimination and harassment in the workplace through the Fair Employment and Housing Act ("FEHA"). In order to be considered illegal, FEHA requires that such discrimination be based off an individual's actual or perceived protected category. For quite some time, such protected categories were limited to ancestry, age, disability, marital status, national origin, race, religion, sex/gender, among a few others.

The Return of 'No-Match' Letters: How Employers Should Respond

By: Kyle D. Kring

The Social Security Administration ("SSA") has once again begun issuing employers "Request for Employer Information" letters, better known as "No-Match" letters (view sample letter here). The SSA sends no-match letters to those employers identified as having at least one name and Social Security Number ("SSN") combination submitted on Form W-2 that do not match SSA records.

Revisiting Augustus v. ABM Security Services, Inc.; Whether California Employers May Require Non-Exempt Employees Remain On-Site During Rest Periods

By: Allyson K. Thompson

As our firm discussed in a previous publication titled California Prohibits On-Duty and On-Call Rest Periods, the Supreme Court of California ruled that employers may not require their employees to remain "on-call" during rest periods. The Court noted that, "state law prohibits on-duty and on-call rest periods" and "during rest periods, employers must relieve their employee of all duties and relinquish any control over how employees spend their break time."

Getting a Jump Start on Compliance with California's Growing Sexual Harassment Training Mandate

By: Kerri N. Polizzi

California employers with 50 or more employees have long been required to provide at least two hours of sexual harassment prevention training to supervisors and managers. Specifically, since 2005 any employer with "supervisory authority" is required to be trained within six months of being hired to or promoted to a supervisory position and every two years thereafter.

Court of Appeal Rules That On-Call Workers Are Entitled to Reporting Time Pay

By: Kerri N. Polizzi

On February 4, 2019, a panel of the California Court of Appeal held in Ward v. Tilly's, Inc., that certain on-call scheduling practices require employees to "report to work" within the meaning of the Industrial Welfare Commission ("IWC") Wage Orders, triggering compensation requirements even when no work is actually performed.

The case concerned employees of Tilly's, Inc. ("Tilly's") who were assigned "on-call" shifts that required time to call in two hours before their scheduled start time to determine whether they were actually required to come in to work that day. If the worker was in fact called in to work, Tilly's paid them for the entire shift. If, however, the employee calling in was told not to come in for the shift, he or she was paid nothing.

Court of Appeal Upholds Dismissal of Nisei Farmers League Action

By: Kyle D. Kring

Nisei Farmers League v. California Labor and Workforce Development Agency is a piece-rate compensation case involving AB 1513 which we have been following and reporting on since it was originally filed.

Last Friday, the Court of Appeal upheld the dismissal of the Nisei Farmers League action challenging the constitutional validity of Labor Code section 226.2 (AB 1513) which went into effect on January 1, 2016 and requires separate payment for piece rate workers' rest breaks and non-productive time. The court concluded that Plaintiff, Nisei Farmers League failed to allege an adequate basis for finding the statute to be unconstitutional. As you may recall, Plaintiff Nisei Framers League had generally alleged that the statute was unconstitutionally vague as to the phrases "other nonproductive time" and "actual sums due." The legal standard the Plaintiff needed to prove was quite high. The court noted that "... a statute will be deemed to have a reasonable degree of certainty and thereby overcome a vagueness challenge 'if any reasonable and practical construction can be given its language of if its terms may be made reasonably certain by reference to its legislative history or purpose.'"

California Court of Appeals Finds "Hourly" Compensation Plan Not Subject to Piece Rate Laws

California's Fourth Appellate District, Division One (San Diego/Riverside), recently upheld a "production" payment plan that guarantees at least the minimum wage for all hours worked (including non-productive time and rest breaks) but provides that automotive technicians can be paid a higher "hourly rate" based on their production, very similar to the now common "Hourly plus Production Bonus" pay plans. In other words, the payment plan paid by the hour, but the hourly rate to be paid each pay period varied based directly on the individual employee's production. Very similar to an hourly plus production bonus plan, but where the effective bonus was divided by the hours worked and paid on an "hourly" basis.

New California Employment Laws in Response to #MeToo Movement.

By: Kyle D. Kring  

Last weekend, California Governor Jerry Brown signed many significant pieces of legislation related to the recent #MeToo movement. The majority of the laws will take effect on January 1, 2019 and will undoubtedly have a large impact on employees and employers alike. The #MeToo movement, which spread virally in the Fall of 2017, is aimed at combatting sexual harassment and sexual assault. Its effects have had an immense influence on the employment sector, leading to a push for increased employment legislation.

Employees and employers should be aware of the bills Governor Brown signed and those he vetoed, as they are sure to have a profound impact on the employment sector. The major bills are discussed below, with a brief summary of each.

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