With its decision last year in Dynamex, the California Supreme Court fundamentally changed the test for determining whether workers are properly classified as either employees or independent contractors. Specifically, and as for claims brought under the California wage orders, the Supreme Court adopted the “ABC test,” which involves an analysis of the following three factors: (1) whether the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) whether the worker performs work that is outside the usual course of the hiring entity’s business, and (3) whether the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Since that time, California employers and various industry groups have been lobbying the California legislature left and right to take steps to either limit the ruling’s application or expand it.
Continue Reading California Legislature Moves to Codify Dynamex
Modern Workforce Increasingly Challenges Employers to Offer Telework Option
A little over six years ago, Yahoo! CEO Marissa Mayer issued her edict (well, memo) kiboshing work-from-home arrangements, driving Yahoo! workers back to their desks and sending shock waves that reached far beyond affected employees. Mayer’s mantra was that in order to be “one Yahoo!,” workers needed to be physically connected in the workplace. Her ultimatum ground the notion of telecommuting at Yahoo! to a screeching halt: Get back to the office or don’t let the door hit you on the way out.
With probably more fallout externally than internally, Mayer’s remote work ban generated much criticism (amid some praise) and has continued to draw scrutiny even years later. Whether her move was brilliant or a fool’s errand, one universal lesson to be drawn is that companies need to think critically about whether and to what extent remote work arrangements make good business sense. This is particularly true as the workforce continues to trend away from traditional employment concepts toward freelancing, consultants, and gig workers. More and more workers expect, if not demand, flexibility, including the ability to telecommute for at least some portion of their workweek. With limited exceptions, however, this is privilege not a right.
Continue Reading Modern Workforce Increasingly Challenges Employers to Offer Telework Option
California Court of Appeal Significantly Broadens the Scope of Employees Entitled to Reporting Time Pay
Many classes of California workers are entitled to “reporting time pay,” which is partial compensation given to employees who go to work expecting to work a certain number of hours but are deprived of working the full time due to inadequate scheduling or lack of notice by the employer. Prior to the California Court of Appeal’s decision in Skylar Ward v. Tilly’s, Inc. most employers understood that such pay was only required if the employee physically appears at the workplace. In that decision, however, the Court of Appeal told those employers that they were wrong.
Continue Reading California Court of Appeal Significantly Broadens the Scope of Employees Entitled to Reporting Time Pay
Washington Supreme Court Announces Zero-Tolerance Approach to Sexual Harassment in Places of Public Accommodation
The Washington Law Against Discrimination (WLAD) prohibits “places of public accommodation” from discriminating against their customers on the basis of several protected characteristics, including, without limitation, sex, race, national origin, and sexual orientation. Sexual harassment is one prohibited form of such sex-based discrimination. Generally speaking, a place of public accommodation is any business that is open to the public.
On January 31, 2019, the Washington Supreme Court announced a new sexual harassment standard for places of public accommodation. In so ruling, the Court held that, under the WLAD, employers are “directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Floeting v. Group Health, Inc., No. 95205-1.
Continue Reading Washington Supreme Court Announces Zero-Tolerance Approach to Sexual Harassment in Places of Public Accommodation
California Court of Appeal Calls into Question the Validity of Employee Non-Solicitation Provisions
California Business and Professions Code section 16600 invalidates any contract restraining anyone from engaging in a lawful profession, trade, or business. While this language has been understood to prohibit non-compete agreements, it was generally understood that it still permitted employee “non-solicitation agreements,” which are agreements preventing former employees from poaching employees from their former employers.
California Enacts New Law Protecting as Privileged Workplace Sexual Harassment Complaints
On July 9, 2018, California Governor Jerry Brown signed Assembly Bill 2770. This bill extends privileged communication status to certain communications by employees and employers regarding alleged sexual harassment and continues California’s efforts to address claims of sexual harassment in the workplace.
Prior to AB 2770, California law protected as privileged an employer’s responses
Idaho Supreme Court Adopts New Standard for Defining “Cause” in Employment Cases
On June 28, 2018, the Idaho Supreme Court issued an opinion in a case entitled Lunneborg v. My Fun Life that outlines how cause will be defined in employment cases. Simply put, this case could be a real game changer for employers and particularly those that have employment agreements with senior management or other executives.
Significant Victory for Employers: Supreme Court Upholds Class Action Waivers in Arbitration Agreements
In a significant win for employers, the United States Supreme Court has issued a landmark decision upholding the use of class action waivers in employment arbitration agreements. This ruling permits employers across the country to enforce individual arbitration agreements with employees, even where the agreement requires an employee to pursue legal claims on an individualized
California Supreme Court Embraces New Employee-Friendly Worker Classification Standard
In Dynamex Operations West, Inc. v. Lee, the California Supreme Court created a new employee-friendly test for determining whether workers are properly classified as employees or independent contractors. While providing a level of certainty lacking in the prior standard, the Court’s new test significantly increases the burden on California employers in demonstrating that their
California Supreme Court Instructs Employers How to Calculate Employee Overtime Pay Rate
In Alvarado v. Dart Container Corporation of California, the California Supreme Court determined how employers must calculate an employee’s overtime pay rate when the employee earns a bonus during a single pay period. While the holding was fairly fact specific, it is a reminder on an often ignored (but critical) issue in California employment