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
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 Courts Slowly Interpret Dynamex
Almost six months ago, the California Supreme Court issued its decision in Dynamex, which dramatically altered the landscape pertaining to the classification of California workers as either employees or independent contractors. This past Monday, the California Court of Appeal issued one of the first decisions interpreting that seminal case.
In Dynamex, the California Supreme Court issued a new, employee-friendly test for determining whether a worker is properly classified as an employee or independent contractor for the purposes of claims brought under California’s wage order – the “ABC” test. Under the ABC test, the burden is on the hiring entity to establish that the worker is an independent contractor. In order to satisfy this burden, the hiring entity must establish all of the following: (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work; (2) that the worker performs work that is outside the usual course of the hiring entity’s business; and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Continue Reading California Courts Slowly Interpret Dynamex
California Supreme Court Resolves Conflict Regarding California’s Background Check Laws
In Connor v. First Student, Inc., the California Supreme Court resolved a conflict in Court of Appeal decisions relating to the constitutionality of California’s background check laws.
Employers frequently request background information from job applicants. California has two primary laws regulating the collection and distribution of this background information: the Investigative Consumer Reporting Agencies
California Supreme Court Determines that the Federal De Minimis Doctrine Does Not Apply to California Wage Claims
In Troester v. Starbucks Corp., the California Supreme Court determined that the federal de minimis doctrine does not apply to California wage claims. While this ruling does not completely eviscerate this legal defense for California employers, it places a very high burden on employers who are brave enough to raise this defense in California
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
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
California Proposes New Legislation Prohibiting Confidentiality Provisions in Settlement Agreements
In the face of a continuing wave of highly publicized complaints of sexual misconduct in the workplace, California state senator Connie M. Leyva introduced Senate Bill 820. If passed, this law would prohibit the inclusion of nondisclosure terms in settlement agreements relating to actions alleging claims of sexual harassment or discrimination in the workplace.
Continue Reading California Proposes New Legislation Prohibiting Confidentiality Provisions in Settlement Agreements
California Implements Significant Changes in the Employment Application Process, Employee Training, and Protected Leaves
On October 12, 2017, California Governor Jerry Brown signed several bills regulating a wide range of employer actions, everything from the labeling of cleaning fluids to the employment application process. While compliance with all of these new laws is important, four are of particular importance as they directly impact the information employers can seek from potential applicants, the training that must be provided to current employees, and protected leaves.
AB 168 and AB 1008 restrict the information employers can obtain from potential job applicants. AB 168 makes it unlawful for California employers to either obtain or rely upon an applicant’s salary history to determine whether to offer an applicant a job or what salary to offer an applicant. The law, however, does not prohibit a job applicant from voluntarily and without prompting disclosing to a prospective employer his or her salary history. If a job applicant voluntarily discloses information in this way, then the employer is permitted to rely upon that history in determining the salary for that applicant.
AB 1008 imposes a statewide “ban-the-box” law. Specifically, this law prohibits California employers with five or more employees from (1) including on any application for employment any question that seeks the disclosure of an applicant’s conviction history or (2) inquiring into or considering an applicant’s conviction history prior to providing that applicant with a conditional offer of employment. The law also provides that employers who intend to deny an applicant a position of employment based upon that applicant’s conviction history must make an individualized assessment as to whether the applicant’s prior criminal history has a detrimental impact on the prospective employment. Employers must also provide applicants with notice of a preliminary decision to deny employment based on the individualized assessment and allow applicants the opportunity to challenge the accuracy of their conviction history. Prior to the signing of AB 1008, many local jurisdictions had enacted similar ordinances prohibiting the use of an applicant’s prior conviction history in the initial application process. With passage of AB 1008, this prohibition is now statewide.
Continue Reading California Implements Significant Changes in the Employment Application Process, Employee Training, and Protected Leaves