VICTORY FOR STAFFING COMPANIES: NO MEAL PERIOD LIABILITY AS CO-EMPLOYER

by Julie Ann Giammona A California court of appeal has recently concluded that a staffing company is not liable for its work-site co-employer’s violation of meal period violations where the staffing agency complied with the requirements of the Labor Code. In Serrano v. Aerotek, Inc., a former employee brought a class action lawsuit against both Aerotek, the staffing agency that

REDEFINING INDEPENDENT CONTRACTOR STATUS: CALIFORNIA SUPREME COURT ANNOUNCES REVOLUTIONARY CLASSIFICATION TEST ABOLISHING LONG-STANDING PRECEDENT

by Julie Ann Giammona Yesterday, in a highly anticipated decision, the California Supreme Court overturned almost 30 years of case law defining who qualifies as an independent contractor.  Adopting a standard that will dramatically reduce the number of workers that can be classified as independent contractors, the Court announced that every worker will be presumed an employee, unless the hiring

SEXUAL HARASSMENT BY NON-EMPLOYEE TRESPASSER FALLS OUTSIDE SCOPE OF WORKERS COMPENSATION EXCLUSIVITY

by Julie Ann Giammona Labor Code Section 3600 provides generally that workers compensation benefits are the exclusive remedy for an employee alleging an injury in the workplace. However, the exclusivity doctrine has long been held to be inapplicable to actions brought under the California Fair Employment and Housing Act (FEHA) which protects employees against discrimination, retaliation and harassment in the

NINTH CIRCUIT TELLS EMPLOYERS NOT TO USE SALARY HISTORY AS A FACTOR IN DETERMINING PAY

by Julie Ann Giammona In Rizo v. Fresno County Office of Education the Ninth Circuit Court of Appeals ruled en banc that an employer’s use of prior salary information to justify pay gaps between men and women violates the Equal Pay Act. This decision overturned a prior Ninth Circuit 1982 decision (Kouba v. Allstate Insurance Co.) and the April 2017

CALIFORNIA SUPREME COURT ANNOUNCES RETROACTIVE OVERTIME CALCULATION FAVORING EMPLOYEES

by Julie Ann Giammona In Alvarado v. Dart Container Corp. of California, the California Supreme Court determined that an employer should use the number of regular, straight-time hours the employee worked during the pay period (excluding all overtime hours) when calculating an employee’s overtime pay rate where a flat sum bonus has been earned. Moreover, the Supreme Court concluded that

FEHA Protection for Obese Employees Just Became Easier

by Julie Ann Giammona In 1993, the California Supreme Court concluded that obesity does not qualify as a disability under FEHA unless it has a physiological cause (Cassista v. Community Foods). A California court of appeal recently eased the evidentiary requirements necessary to establish the possibility of a physiological cause in Cornell v. Berkeley Tennis Club by concluding that the

Court of Appeal Clarifies Definition of Alter Ego and Joint Employer

by Julie Ann Giammona In Turman v. Superior Court, the California Court of Appeal sent a warning to sole proprietor employers who have incorporated in the hopes of gaining the personal liability protections of a corporation: Beware of the joint employer and alter ego theories that can, and often do, remove the desired corporate shield. In Turman, Arthur Parent was

New California Law & Salary History

by Michelle Ferber Governor Brown signed into law a state-wide ban on employer inquiries into an individual’s salary history. Under AB 168, no employer of any size may rely on an applicant’s prior salary history “as a factor in determining whether to offer employment . . . or what salary to offer an applicant.” The definition of salary history is

California Supreme Court Clarifies “Day of Rest” Rules for Ninth Circuit

by Michelle Ferber and Robert Ferrier In the recent case of Mendoza v. Nordstrom, Inc., the Ninth Circuit, as described below, asked for and received substantial guidance from the California Supreme Court regarding California’s “day of rest” law, otherwise known as Cal. Lab. Code §§ 551 and 552.  The Supreme Court has now provided substantial clarity on this issue. Mendoza

Court of Appeals Upholds Petition to Compel Arbitration In Wage Claim

by Robert Ferrier In OTO, LLC v. Kho, the California Court of Appeals enforced a binding arbitration clause that a former employer provided the employee as a condition of employment. Here, the plaintiff brought an unpaid wage claim against his former employer.  After subsequent settlement negotiations failed, the employer tried to invoke the arbitration clause.  In this particular case, the