Labor & Employment Law Blog

In light of recent amendments to SB 1343, the California Department of Fair Employment and Housing (“DFEH”) issued an updated FAQ which sheds light on areas of ambiguity for employers regarding sexual harassment prevention training.   

On January 8, a trial court judge in Los Angeles issued an order finding the ABC Test—now used to determine independent contractor status in California—could not be applied to independent contractor truck drivers (“owner-operators”) due to federal pre-emption concerns.  While the decision represents a major victory for trucking companies, it will be subject to challenge.

As the end of the year descends upon us, it is time for workplaces to have their December gatherings, and like everything else in the employment setting these days, employers must be on their guard to not create situations that could lead to potential legal liabilities.  The following is a quick reminder of considerations for holiday parties.

Liability insurance policies typically provide two forms of coverage:  (1) coverage for the defense of lawsuits alleging claims covered by the policy in question, and (2) coverage for the settlement of claims covered by the policy in question that the insurer and the insured agree to for payment of a judgment against the insured when a judgment is the result of a covered claim against the insured.

California Assembly Bill 5 (“AB 5”), which codified significant changes to the test for independent contractor status, has caused substantial upheaval for California businesses.  As the statute will likely result in significant litigation over the next several years, California companies are scrambling to guard against its impact where possible.  One potential avenue to do so is the statute’s “business-to-business” exemption.  This alert discusses the requirements businesses must understand if they are to satisfy the criteria of the exemption.

On September 24, 2019, the U.S. Department of Labor announced a final rule modifying the earnings thresholds necessary to exempt executive, administrative and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. The rule also allows employers to count a portion of certain bonuses/commissions towards meeting the salary level. The thresholds were last updated in 2004, though the DOL briefly adopted more significant changes—which never took effect—in 2015.

The Fair Employment and Housing Act (“FEHA”) has always contained a two layered statute of limitations for employees to bring lawsuits against their employers for discrimination, harassment, and retaliation.  Formerly, employees had one year to file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) from the date of the alleged discrimination, harassment, or retaliation.  If an employee did not comply with this administrative requirement, then the employee’s complaint would be subject to dismissal for failure to exhaust administrative remedies.  Even if an employee were to file a timely administrative complaint, they were subject to a one year statute of limitations for filing a civil action from the time they received a right to sue letter from the DFEH.  The Stop Harassment and Reporting Extension Act (“SHARE Act”) has greatly expanded employee rights. (AB 9, 2019).

Natural disasters are something that many don’t think about until it’s too late, particularly in the context of their business obligations, but as extreme winds, wildfires, and power outages continue to pick up in California, employers should consider what obligations exist as to their employees and employment law.

On September 12, 2019, the California Supreme Court decided in a unanimous decision that in a Private Attorneys General Act (PAGA) action seeking to recover penalties under California Labor Code Section 558, a plaintiff may recover civil penalties but may not recover actual unpaid wages. This is an important decision, which now clearly prevents a plaintiff from seeking both statutory penalties and wages under PAGA (as is often argued by the plaintiff). The high court did, however, reinforce that actions seeking statutory penalties under PAGA cannot be compelled to arbitration.

On August 30, 2019, California Governor Gavin Newsom signed urgency legislation to extend the deadline to provide certain employees required sexual harassment training until January 1, 2021.  (Senate Bill 778).  Last year, Senate Bill 1343 amended Government Code section 12950.1 to require employers with five or more employees to provide two hours of sexual harassment prevention training to all supervisory employees and one hour of sexual harassment prevention training to all nonsupervisory employees by January 1, 2020.