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
DISTINGUISHING ENHANCED PAY FROM PIECE RATE AND/OR COMMISSION PLANS
by Michelle R. Ferber and Julie Ann Giammona A California appeals court recently underscored the importance of avoiding piece rate and/or commission based systems of pay by concluding that a Technician Compensation Program (TCP) where each technician was guaranteed an hourly rate of pay above minimum wage for every hour worked is lawful (and does not equate to a piece
Employment Law Seminar – Preview of 2019 and Continuing Trends
Ferber Law would like to invite you to our upcoming Employment Law Seminar. We will provide a preview of 2019 and continuing trends in employment law. The details are: DATE: Tuesday, October 2, 2018 TIME: 9:00 a.m. to 9:30 a.m. Breakfast 9:30 a.m. to 11:30 a.m. Presentation/Questions PLACE: Roundhouse Conference Center, Shasta Room 2600 Camino Ramon (in BR 2600) San
DESPITE LEGALIZATION OF CANNABIS, EMPLOYERS CAN STILL FIRE EMPLOYEES FOR TESTING POSITIVE
by Michelle R. Ferber and Julie Ann Giammona Proposition 64, Adult Use of Marijuana Act (AUMA), effective January 1, 2018, makes recreational use of cannabis legal in California. Marijuana, for medicinal purposes, has been legal in California since 1996 under The Compassionate Care Act, provided the user has a medical marijuana card from a licensed healthcare provider. However, under federal law,
CALIFORNIA SUPREME COURT CONCLUDES FEDERAL “DE MINIMIS” RULE INAPPLICABLE TO CALIFORNIA WAGE AND HOUR LAWS
by Michelle R. Ferber and Julie Ann Giammona In a unanimous opinion, the California Supreme Court refused to apply the federal “de minimis” doctrine in a lawsuit brought by a former Starbucks employee alleging that he was not paid for approximately 13 hours over a 17-month period, totaling $102.67 (before penalties). The “de minimis” doctrine had its origins in a
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