On Thursday March 7, 2019, the U.S. Department of Labor (“DOL”) published its new overtime pay regulation, which raises the minimum salary threshold to $35,308 per year for an employee to qualify for the Fair Labor Standards Act’s (“FLSA”) “executive, administrative, or professional” exemption from federal overtime and minimum wage laws (commonly referred to as the “white collar exemption”).  The FLSA exempts from both minimum wage and overtime requirements “any employee employed in a bona fide executive, administrative, or professional capacity.”  29 U.S.C. § 213(a)(1).  When enacting the FLSA, Congress did not define the terms “bona fide executive, administrative, or professional capacity” and instead delegated the power to define and delimit these terms to the Secretary of Labor through regulations, which the Secretary of Labor delegated to the DOL.

As the #MeToo Movement placed a glaring spotlight on sexual harassment in the workplace, outgoing California Governor Jerry Brown signed several bills aimed at curbing sexual harassment last year, including SB 1343.

In a case of first impression, the California Supreme Court recently decided that an employee cannot sue a payroll company for failing to include the legally required information on the employee’s earnings statements.  The Court held that because a payroll company’s obligations are solely to the employer, an employee cannot claim that they are a third‑party beneficiary of the employer’s contract for payroll services, and cannot maintain a claim for breach of that contract against the payroll provider. (Goonewardene v. ADP, No. S238941, February 7, 2019)

California announced the debut of its CalSavers program this month, designed to help employees save for retirement when their employers are not able to offer participation in another retirement program.

In the recent case of Huerta v. Kava Holdings, Inc., 2018 WL 5999639 (Cal. Ct. App. Nov. 14, 2018), the California Court of Appeal held that a prevailing employer that made a section 998 settlement offer to the plaintiff in an action brought under the Fair Employment and Housing Act (“FEHA”) was not entitled to costs and expert witness fees incurred after the plaintiff’s rejection of the offer.

With the passage of AB 2605 earlier this year, employees covered by specific Collective Bargaining Agreements (“CBAs”) who hold a “safety-sensitive” position at a petroleum facility are now exempt from certain California rest and recovery period requirements. This bill is a legislative response to the highly criticized Augustus v. ABM Security Services, Inc. 2 Cal.5th 257 (December 22, 2016) decision. In Augustus, ABM Security required its security guards to keep their radios on during their rest and recovery periods in case of an emergency. The plaintiffs argued that this “on-call policy” required them to not be relieved of all duty, and therefore unlawfully denied their right to a rest period. The California Supreme Court agreed, holding that being “on call” requires employees to remain “at the ready” and therefore unable to fully engage in personal activities.

Cal/OSHA is advising employers that special precautions must be taken to protect workers from hazards from wildfire smoke.

On November 6, 2018, a majority of Californians voted “Yes” on Proposition 11, which will allow private sector emergency ambulance employees, specifically, emergency medical technicians (EMTs) and paramedics, to remain “on-call” during their meal periods and rest periods so they can respond in case of an emergency. 

Effective January 1, 2019, construction workers covered by certain collective bargaining agreements (“CBA”) will be exempt from the Private Attorneys General Act of 2004, commonly referred to as PAGA. 

On October 22, 2018, the California Court of Appeal followed the California Supreme Court’s guidance in Dynamex, and differentiated between a taxi driver’s Industrial Welfare Committee Wage Order claims, and non-Wage Order claims. (Garcia v. Border Transportation Group, LLC (D072521, Court of Appeal, 4th App. Dist. Div. 1).  In line with the Supreme Court’s decision, the Court of Appeal applied the ABC independent contractor test to Wage Order claims, while leaving other wage and hour claims for evaluation under the multi-factor Borello test.  The Wage Orders regulate basic working conditions for California employees, including minimum wage, meal breaks, and rest periods.

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