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

On April 22, 2019, the California Senate voted unanimously to update California’s anti-discrimination laws to include within the definition of the term “race” “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  If the bill ultimately becomes law, California would become one of the first states in the nation

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 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. 

Continuing its aggressive enforcement of California wage and hour laws, the Labor Commission issued wage theft citations of $1.9 million to Fullerton Pacific Interiors, Inc. for failing to pay minimum wage and overtime and failing to provide rest periods to 472 workers on 26 construction projects throughout Southern California.

Fullerton Pacific Interiors provided drywall work

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

On July 5, 2018, a federal judge in the Eastern District of California granted the U.S. Department of Justice’s (“DOJ”) request to temporarily prevent the state of California from enforcing key provisions of AB 450, one of three “sanctuary” laws that Governor Jerry Brown signed into law on October 5, 2017, and which took effect on January 1, 2018.  AB 450, known as the Immigration Worker Protection Act, provides that California employers:

  • May not allow federal immigration officials to access the employer’s nonpublic work areas unless the officials have a judicial warrant;
  • May not allow federal immigration officials to access employee records without a subpoena or judicial warrant;
  • Must provide notice to its employees before and after the federal government inspects the employer’s I-9 forms; and
  • May not re-verify an employee’s lawful work authorization status unless required to do so by federal law.

Continue Reading California Federal Court Suspends Enforcement of Certain Provisions in California’s Sanctuary Laws

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

A recent California Supreme Court decision has the potential to affect all California employees who are required to stand while performing parts of their job.  In response to numerous lawsuits brought by cashiers, retail employees, bank tellers and other employees, the California Supreme Court clarified the meaning of a decades-old law that requires employers to provide their employees with “suitable seats” when the nature of the work permits it.  The Court rejected the interpretation favored by employers—creating instead an interpretation that will make it more difficult for employers to deny their employees a seat.

As a result of this decision, California companies must give careful consideration to whether their employees can perform any of their tasks while sitting.  Employers who fail to provide seats when the nature of the work would reasonably permit their use face significant penalties.

Suitable Seating Laws

Different variations of seating laws have been in place in California since 1911.  The current language dates back to 1976, when the Industrial Welfare Commission modified a wage order to require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  The wage order also requires that “when employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”
Continue Reading California Employers Must Carefully Reconsider Whether Employees Can Be Provided With “Suitable Seats” In Light of New Decision

Stoel Rives labor and employment attorney Adam Belzberg and water resources attorney Wes Miliband were quoted in a Society for Human Resources Management (SHRM) article titled “California Drought Has Wide-Ranging Effects in Business Community.” The article examines the effects of California’s long-lasting drought on the state’s job market, specifically on the agricultural and