NINTH CIRCUIT WITHDRAWS ITS PRIOR DECISION ON RETROACTIVE APPLICATION OF DYNAMEX CASE

by Michelle R. Ferber and Julie Ann Giammona On July 22, 2019, a three-judge panel for the Ninth Circuit reversed its May 2, 2019 Vazquez et al. v. Jan-Pro Franchising International decision concluding that the California Supreme Court’s Dynamex decision — which overturned 30 years of case law allowing employers to classify their workers as independent contractors utilizing a multi-factor

NINTH CIRCUIT HOLDS THAT DYNAMEX APPLIES RETROACTIVELY

by Michelle R. Ferber and Connor M. Day On May 2, 2019, the Ninth Circuit Court of Appeals held that the California Supreme Court’s landmark decision in Dynamex should apply retroactively.  In Vazquez v. Jan-Pro Franchising Int’l (9th Cir. 17-16096 5/2/210), the Ninth Circuit stated that California law calls for the retroactive application of Dynamex and that doing so is

CALIFORNIA APPELLATE COURT ENFORCES MANDATORY ARBITRATION AGREEMENT

by Michelle R. Ferber and Julie Ann Giammona In a victory for employers, a California Appellate Court determined that mandatory arbitration agreements are enforceable where an employee has been given notification that commencement or continued employment constitutes acceptance of the arbitration agreement. In Diaz v. Sohnen Enterprises, the employer announced at a company-wide meeting that it was instituting a mandatory

DEPARTMENT OF LABOR ANNOUNCES NEW SALARY THRESHOLD FOR WHITE COLLAR EXEMPTIONS

by Michelle R. Ferber and Julie Ann Giammona Last week, the U.S. Department of Labor (DOL) issued its highly anticipated salary overtime exemption rule, replacing the controversial Obama administration rule. Effective January 1, 2020, the new minimum salary threshold for workers to qualify as exempt under the Fair Labor Standards (FLSA) “white collar” exemption is $35,308 per year. The prior

CALIFORNIA SUPREME COURT PROHIBITS EMPLOYEES FROM SUING PAYROLL COMPANIES FOR WAGE VIOLATIONS

by Michelle R. Ferber and Jennifer R. Lucas On February 7, 2019, the California Supreme Court decided the case of Goonewardene v. ADP, LLC, which considered the novel question of whether an employee could sue her employer’s payroll company for wage and hour and other statutory violations.  Ultimately, the Supreme Court’s answer was that the payroll company was not liable

FEDERAL DEPARTMENT OF TRANSPORTATION DETERMINES CALIFORNIA TRUCKERS ARE EXEMPT FROM MEAL PERIOD AND REST BREAK REQUIREMENTS

by Michelle R. Ferber and Julie Ann Giammona On December 21, 2018, in a victory for the American Trucking Association (ATA), the Federal Motor Carrier Safety Administration (FMCSA), an Agency regulated by the Department of Transportation, granted the ATA petition to exempt commercial motor vehicle drivers covered by the FMCSA’s hours of service regulations from California meal period and rest

CAUTION: NON-SOLICITATION AGREEMENTS ARE LIKELY UNENFORCEABLE

by Michelle R. Ferber and Julie Ann Giammona In AMN Healthcare Inc. v. Aya Healthcare Services, Inc., the Court of Appeal for the Fourth Appellate District held that non-solicitation agreements are void unless they fall within one of the three statutory exceptions found in Business & Professions Code Sections 16601 – 16602.5 relating to the sale of goodwill in a

CALIFORNIA APPELLATE COURT LIMITS APPLICATION OF DYNAMEX TO WAGE ORDER VIOLATIONS ONLY

by Michelle R. Ferber and Julie Ann Giammona After months of uncertainty, finally, an Appellate Court has spoken with regard to the application of Dynamex to cases involving claims other than alleged wage order violations. In Garcia v. Border Transportation Group, the court concluded that the Dynamex ABC test, which determines independent contractor status, only applies to claims arising from

NEW PROTECTIONS FOR VICTIMS OF SEXUAL HARASSMENT

by Michelle R. Ferber and Julie Ann Giammona California has passed a myriad of new laws that will become effective January 1, 2019 that expand employer liability for sexual harassment. Below is a brief summary of each law. SB 1300 Under current law, the California Fair Employment and Housing Act (FEHA), provides that an employer can be liable for sexual

Ninth Circuit Denies California Trucking Association’s Attempt to Use Federal Preemption to Avoid Enforcement of State Labor Law

by Michelle R. Ferber and Julie Ann Giammona Last month, the Ninth Circuit concluded that the California Labor Commissioner’s use of the common-law Borello standard to determine employment classification was not preempted by the Federal Aviation Administration Authorization Act (“FAAAA”). In California Trucking Association v. Su, the court determined that the Labor Commissioner could apply California common law to truck