The new standard on worker classification in California, instituted by Dynamex Operations West, Inc. v. The Superior Court of Los Angeles continues to develop. Here’s the latest.

We previously reported on an employer’s obligations with respect to providing and maintaining employee uniforms. In that article, we noted that shoes with slip-resistant soles are generally not considered a “uniform” under the law, and employers may require them without having to provide or maintain them. However, until recently, there was no published California case law directly on point finding that slip-resistant shoes need not be reimbursed under California’s Labor Code requirements.

As most employers know, non-compete agreements are generally void as against public policy in California, but what about former employees who try to steal not customers, but other employees?

The California legislature’s ongoing efforts to counter the effects of policies and practices that adversely affect employees based on race has led to another law of which employers should be aware. Senate Bill 188 (otherwise known as the Create a Respectful and Open Workplace for Natural Hair “CROWN” Act), which was passed in July 2019 and will take effect January 1, 2020, expands the definition of “race” under the Fair Employment and Housing Act to include hairstyles and hair textures closely associated with race.

California employers and dealerships are regularly getting hit with class action wage and hour claims, or lawsuits under the Private Attorneys General Act (PAGA), which presently allows a single employee to bring claims for all others who suffered any violation of numerous labor statutes. One common issue in these cases is meal breaks.

California’s Equal Pay Act is codified at Labor Code Sections 1197.5, 1199, and 1199.5 and extends to wage discrimination based on sex, race, and ethnicity. Labor Code Section 1197.5(a) prohibits employers from paying employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where an employer demonstrates three things…

It’s Friday morning, and an employee comes to you. One of the supervisors in another department has been annoying her with his “racist speech.” You ask what she means, and she tells you that he constantly criticizes people who don’t speak English, insults the migrants who are applying for asylum at the border, and sometimes rages and throws things when he’s unhappy. She also reports that he has threatened to “shove [his] foot up [her] ass.” Mindful of your obligation to provide a workplace free of harassment and a safe workplace, you thank the employee for her report and start your investigation. Other employees report that the supervisor is a Trump supporter and has made statements in support of Second Amendment rights, shared radical websites with employees, criticized gay people, and advocated returning all Mexicans to Mexico. They report that they have asked him not to share his political views, but nevertheless, he has persisted. Others confirm that he has thrown objects and verbally attacked employees. What do you do?

When an employee goes out on medical or parental leave that is covered by either State Disability Insurance (SDI) or Paid Family Leave (PFL) benefits through the State, how are these benefits affected by employer- paid sick leave, vacation or other PTO benefits? This can be a tricky area because employees are only eligible for SDI or PFL benefits to the extent that they lose income due to the covered leave. Therefore, the employee’s receipt of paid time off benefits from the employer during the leave could reduce the employee’s eligibility for SDI/PFL benefits. Moreover, concurrent payment of SDI/PFL benefits plus paid time off through the employer could result in overpayment where the employee receives more than 100% of their normal wages. The Employment Development Department (EDD), which administers SDI and PFL benefits, places the responsibility on the employer and employee to ensure that during the leave the employee is not receiving total wages/benefits that exceed the employee’s normal wages. However, EDD can assist with compliance by offering the option of integration/coordination of SDI and PFL benefits.

On July 1, 2019, several cities in California will see minimum wage increases for hourly employees. Companies with employees who perform at least two hours of work in a city are required to pay those employees the minimum wage of that city.

In January 2018, the U.S. Department of Labor (DOL) endorsed the primary beneficiary test for assessing whether interns qualify as employees under the Fair Labor Standards Act (FLSA). The test is a seven-factor test for determining interns’ status that was laid out by the Second Circuit in its 2015 ruling, Glatt v. Fox Searchlight Pictures Inc. as the way to distinguish employees from bona fide interns under the FLSA. Courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, do not qualify as employees for FLSA purposes and cannot collectively pursue claims for misclassification and wage violations under that statute.

As we previously reported, in an effort to better address pay disparity issues based on gender and race, the Obama-era EEOC announced in February 2016 that it would seek to revise the EEO-1 data collection report that employers with 100 or more employees and certain federal contractors are required to file each year with sex, race and ethnicity data concerning their workforces. Specifically, the report would be expanded to contain a “Component 2” that would include data on employees’ W-2 earnings and hours worked. However, in August 2017, the current administration froze this new requirement in order to re-evaluate whether the burden it would impose on employers is justified. This resulted in litigation by groups who sought to have the proposed new requirements upheld. A federal district court agreed and ordered the EEOC to more forward with the new expanded EEO-1 reporting requirements.

The 2018 Dynamex v. Superior Court case radically modified California’s test for determining when a worker is an independent contractor or an employee and signaled further divergence between state and federal law. As businesses from strip clubs to delivery services to home-based cleaning services have struggled to determine how to apply the so-called “ABC Test” of Dynamex to their workplaces going forward, the Ninth Circuit Court of Appeals in May 2019 intensified the urgency of their situation when it ruled in Vazquez v. Jan-Pro Franchising Int’l that the Dynamex decision applies retroactively.

“Rita is a powerhouse when it comes to complex automotive transactions, whether involving privately or publicly held companies. Rita’s joining our team not only reunites us with a dear friend, but substantially adds to our already deep transactional practice,” said firm Founder and Managing Partner, Christian Scali. “She understands the auto business, knows what clients are looking to accomplish and has the judgment and experience to navigate the gray areas of law to find the best solutions.”

The California Court of Appeal’s decision in Ward v. Tilly’s, Inc. is a warning that employees must be provided reporting time pay when an employer requires its employees to call in two hours before a potential shift to learn whether the employee is needed for work and the employee is told not to come into work that day. To be clear, “reporting to work” is not limited to the when the employee physically appears at work but is sent home early.

New publications were released in March of 2019 pertaining to employers’ obligations to notify employees of their rights related to family medical, parental, disability and pregnancy leaves. Specifically, the California Employment Development Department (EDD) released two new brochures pertaining to disability leave benefits and family care/medical leave benefits that provide updated information on the amount and calculation of paid benefits, and other clarifications. In addition, the Department of Fair Employment and Housing (DFEH) issued a new notice on family care and medical leave, and pregnancy disability leave. While the previous version of this DFEH notice applied only to employers with 50 or more employees, this new notice also applies to employers with 20-49 employees who are now covered under the recently-enacted New Parent Leave Act.

Plaintiffs’ attorneys in California have long been scrutinizing their clients’ paystubs, looking for any excuse to file a claim against defendant employers for wage statement violations. Considering the Labor Code’s requirement that wage statements contain the “name and address of the legal entity that is the employer,” (Lab. Code § 226(a)) some plaintiffs have argued that paystubs reflecting only a company’s fictitious business name (“FBN”) violate the Labor Code. In one recent case, the plaintiff argued that the employer, YRC, Inc., erred in listing its fictitious business name, YRC Freight, on plaintiff’s paystubs. Under an additional theory of liability, the plaintiff alleged that the employer violated the Labor Code by failing to include the employer’s Zip+4 Code (the unnecessary last four numbers sometimes added to zip codes).

California employers and dealerships are regularly getting hit with class action wage and hour claims, or lawsuits under the Private Attorneys General Act (PAGA), which presently allows a single employee to bring claims for all others who suffered any violation of numerous labor statutes. One common issue in these cases is meal breaks. Employers should be aware of potential meal break pitfalls. This article will help you avoid them.

We explore some of the legal and deal considerations that buyers and sellers face in dealing with various types of acquisition financing in this article, originally published in Automotive Buy Sell Report.

In 2015, California automobile dealers applauded the holding of the Court of Appeal in Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, concluding attorneys fees and costs are not available to a plaintiff when a dealer made an appropriate and timely correction offer in response to a Consumer Legal Remedies Act demand. Since then, the Courts have been distinguishing the facts of Benson to chip away at its dealer-friendly applications.

Employers are required to provide sexual harassment training under the FEHA as part of their obligation to ensure a workplace free of sexual harassment.