DYNAMEX APPLIED RETROACTIVELY AND EXPANDED TO PAGA CLAIMS

by Michelle R. Ferber and Julie Ann Giammona A California superior court judge in Orange County has concluded that the Dynamex case, which specifies a more stringent “ABC” test for determining independent contractor status, should be applied: (1) retroactively; and (2) to actions brought under the Private Attorney General Act (PAGA). 1. RETROACTIVE APPLICATION Judge Claster held that the Dynamex

CALIFORNIA LABOR COMMISSIONER HITS EMPLOYERS FOR MULTI-MILLION DOLLAR “WAGE THEFT” CITATIONS

by Julie Ann Giammona and Michelle R. Ferber In the past three months, the Labor Commissioner has been busy investigating and issuing multi-million-dollar citations against employers for what it refers to as “wage theft.” Such violations include failure to pay overtime, minimum wage, split shift premium and failure to provide the required meal periods. In March, a weight loss and

AN EPIC WIN FOR EMPLOYERS: UNITED STATES SUPREME COURT ENDORSES CLASS ACTION WAIVERS

by Julie Ann Giammona and Michelle R. Ferber Employers across the nation received a green light from the United States Supreme Court in Epic Systems Corp. v. Lewis (May 2018) to include class action waivers in arbitration agreements. The Court specifically concluded that arbitration agreements which provide for individualized arbitration preventing class actions do not violate the National Labor Relations

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