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Labor and Employment

  • February 2021     Since 2018, there has been a flurry of activity in the California courts and legislature regarding the classification of employees and independent contractors.  Dynamex establishes the ABC Test for wage and hour claims In 2018, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (“Dynamex”) addressing the how employees and independent contractors are classified as such under California’s Wage Orders. The Court established the ABC Test, holding that a worker can only be classified as an independent contractor under the Wage Orders if the employer establishes: “(A) that the […]

  • January 2021 In 2019, the California Legislature passed Assembly Bill (“AB”) 51 which aimed to prohibit employers from requiring employees to sign mandatory arbitration agreements as a condition of employment.  The United Stated Chamber of Commerce and several large businesses quickly filed suit in federal court, arguing that AB 51 was preempted by the Federal Arbitration Act (“FAA”). In early January 2020, the court issued a preliminary injunction, holding that California could not enforce AB 51. California subsequently appealed the ruling, which is working its way through the 9th Circuit. The court’s injunction means that employers can continue to require […]

  •   January 2021 Workplace harassment continues to be a significant problem for employers and employees in California. A recent study showed that women and men in California are subjected to sexual harassment at a rate higher than the national average.[1]  That same study found that more than 86% of women and 53% of men in California have experienced some form of sexual harassment or assault. Employees are challenging sexual harassment through administrative agencies, such as the Department of Fair Employment and Housing (“DFEH”) and through civil lawsuits. In 2019, the DFEH received 22,584 complaints. Of these, over 7,000 concerned claims […]

  • January 2021 Employers big and small benefit from having detailed, updated handbooks.  Handbooks are a great way to communicate internal and mandatory policies. They can help employees find answers to many employment related questions. Handbooks can also help employers protect or defend against liability.  Mandatory Policies California mandates that employers develop and distribute certain policies to their employees. For example, employers must have written policies concerning discrimination, harassment, and retaliation prevention.  A handbook is an efficient way to distribute these policies and helps protect the employer if discrimination, harassment, or retaliation claims arise.  At-Will Employment A handbook is an effective […]

  •   December 2020 Out of state businesses with out of state employees may now be subject to California labor requirements under the recently published case Gulf Offshore Logistics, LLC v. The Superior Court of Ventura County. In Gulf Offshore, the Court held that employees were entitled to protections under California law because they performed all or most of their work in California, despite living outside of California and working for a Louisiana based company. The defendant company in Gulf Offshore was headquartered in Louisiana. The plaintiffs Gulf Offshore were “crew members on a vessel that provided maintenance services to offshore […]

  •   November 2020 Despite being a single sentence, Business and Professions Code § 16600 establishes substantial rights for employees to freely work in the profession of their choosing.  Section 16600 says in its entirety: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”  Section 16600 makes most non-compete agreement unenforceable in California. Understandably, section 16600 frustrates employers who have spent time and expense training employees only to see those employees freely leave to work for the competition. While employers […]

  • November 2020 For many businesses, a commission-based workforce seems like a win-win arrangement.  Employees do not have a cap on how much they can earn while employers get the benefit of a motivated workforce and no guaranteed salaries for underperforming employees. Semprini v. Wedbush Securities, Inc. No. G057740 2020 Cal.App. LEXIS 1061, is a cautionary tale that commission only employees are not exempt from overtime. In Semprini, two financial advisors brought a class action claim against Wedbush Securities, Inc. (“Wedbush”) for unpaid overtime. At trial, the trial court determined that the financial advisors were properly classified as exempt employees and, […]

  •   November 2020 Several new employment laws are going into effect in California on January 1, 2021. These new laws expand coverage of the California Family Rights Act (“CFRA”) and establish employer obligations in response to COVID-19 outbreaks.  SB 1383 Expands Coverage of the CFRA SB 1383 is an expansion of the CFRA. The most sweeping change to the CFRA in SB 1383 is the expansion to small businesses. The CFRA currently guarantees unpaid leave to employees if the employer has 50 or more employees within a 75-mile radius. SB 1383 will guarantee leave to employees if the employer has […]

  • 2021 is just around the corner and with it comes significant changes to the California Family Rights Act (“CFRA”) from Senate Bill (“SB”) 1383. The CFRA is the state companion statute to the federal Fair Employment and Housing Act (“FEHA”).  It generally provides qualifying employees up to 12 weeks of paid or unpaid leave for the birth or adoption of a child, to care for an immediate family member with a serious health condition, or because of an inability to work because of a serious health condition.  Employees qualify if they have worked for an employer for at least 12 […]

  •   October 23, 2020 PROPERLY DRAFTED SEVERANCE AGREEMENTS CAN PROTECT EMPLOYERS AGAINST LAWSUITS At some point, every employer faces the dilemma of needing to terminate an employee but fearing that the employee will respond with a lawsuit.  To complicate matters, California enacted AB 9 as of January 1, 2020, extending the deadline for file a claim of discrimination with the Department of Fair Employment and Housing (“DFEH”) from one year to three years.  A DFEH complaint is a prerequisite to filing a discrimination lawsuit in California.  After a DFEH complaint has been filed, the employee has another year to file […]