DOL Opinion Letter That Some Gig Workers Are Contractors Has Little Significance In California Given Dynamex

On April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) issued an Opinion Letter in response to an inquiry by a single, unnamed company that sought the Department’s guidance on whether its workers could properly be considered contractors under the Fair Labor Standards Act (“FLSA”), which mandates minimum wages and overtime pay for employees, but not for independent contractors. (more…)

The Rapidly Evolving Cannabis Laws: It’s Time to Think About Your Drug Use Policy

Federal, state, and local laws regarding the legalization of marijuana, and medical use of marijuana, are rapidly changing, which puts employers in a tough situation when they learn of an employee’s marijuana use. Federal law still classifies marijuana as a Schedule 1 drug, but California has legalized both recreational and medical marijuana use. As of today, California employers are not required to accommodate an employee’s use of medical marijuana outside of work. Given the rapid changes in the laws, however, it’s a good idea to make sure that your company’s drug use policy is up to date. (more…)

Update — Important Changes In Sexual Harassment And Other Laws In California

Outgoing Governor Jerry Brown signed dozens of bills into law on Sunday, September 30, 2018. Many of these new laws are in response to the #metoo movement and specifically target sexual harassment. This blog summarizes the key features of these laws and their effect on employers as well as others, such as VCs, who can now be held legally responsible under the sexual harassment laws for harassing non-employee persons who work for actual or potential portfolio companies. (more…)

Class Certification Defeated in Twitter Gender Discrimination Case

Recently, another technology company defeated class certification in a gender discrimination lawsuit. On July 3, 2018, a California state court judge denied female Twitter employees class certification in a lawsuit entitled Huang v. Twitter. This ruling follows a federal judge’s denial of class-action status to females in a gender bias case against Microsoft Corporation. Similar cases are currently pending against Google and Oracle. (more…)

New Protections For Employers Reporting Sexual Harassment Claims In Reference Checks

California employers for the most part play it safe by following their job reference policies allowing them to state period of employment, job title, and possibly compensation (with the employee’s consent). For those who go beyond these basics, there is a dilemma when asked to respond to a reference check regarding a former employee who has had his or her employment terminated due to an accusation of sexual harassment. Thus, by informing a future employer of an employee’s misconduct, the former employer opens itself up to a defamation claim by an employee claiming he or she was falsely accused. (more…)

The U.S. Supreme Court Upholds Class Action Waivers In Employment Arbitration Agreements

The United States Supreme Court has issued its much-anticipated opinion in Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), and two companion cases. In a decision that will be welcomed by employers, the Court has upheld the use of arbitration agreements with class action waivers that require employees to litigate any claims against their employers individually in arbitration. Specifically, the Court has held that class action waivers in arbitration agreements between employers and their employees do not violate the National Labor Relations Act (NLRA) by preventing employees from engaging in protected concerted activity. (more…)

The New “ABC Test” For California Employees and Its Potential Impact On The “Gig Economy” And Otherwise

On April 30, 2018, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, 2018 Cal. LEXIS 3152 (Cal. Apr. 30, 2018), announcing new guidelines that could result in widespread reclassification of California workers and, at the least, presents significant new challenges for certain employers. (more…)

Equal Pay Update: Ninth Circuit Ruling re Salary History

The Ninth Circuit has recently ruled that salary history cannot be used to justify a wage gap between men and women. Specifically, in Rizo v. Yovino, Case No. 16-15372 (9th Cir. April 8, 2018), the Ninth Circuit held that a “factor other than sex” under the federal Equal Pay Act must be “job-related” and the court therefore rejected an employer’s use of pre-employment salary history as a reason to pay females less than males performing the same work. (more…)

California Supreme Court Explains How to Calculate Overtime Pay When Non-Exempt Employees Earn Flat Sum Bonuses

On March 5, 2018, the California Supreme Court issued its long-awaited opinion in Alvarado v. Dart Container Corporation of California, Case No. S232607 (Cal. Sup. Ct., March 5, 2018). The opinion resolves a dispute between an employer and a former employee regarding how his overtime wages should have been calculated for workweeks in which he worked overtime hours and also earned a flat sum bonus. (A flat sum bonus is a bonus whose amount is fixed regardless of the number of hours the employee works.) The calculation method urged by the employee, which would result in slightly higher overtime pay, would treat the bonus as earned only during the non-overtime hours he worked; the employer’s method effectively treated the bonus as earned during all hours he worked. (more…)

Contractor v. Employee in the Gig Economy

A federal court in California, (Lawson v. Grubhub, Inc., No. 15-CV-05128-JSC (N.D. Cal February 8, 2018)), recently ruled that drivers for Grubhub, a food delivery service, are independent contractors rather than employees. The critical factor in the court’s decision was Grubhub’s lack of control over how its drivers perform deliveries, and even whether deliveries are to be performed at all. The decision is significant because, under California law, if an individual performing services is deemed to be an employee, that person has rights to minimum wage, overtime, expense reimbursements and workers compensation benefits. In contrast, an independent contractor is not entitled to those benefits. The decision is thus a welcome development for employers who rely on flexible and semi-autonomous workers in the “gig” economy. (more…)