Posts from January 2021.
Can California Employers Be Liable For Failure To Prevent Something That Never Happened?

If this sounds like an oxymoron to you, join the crowd.  For years, California employers have relied on the principle that plaintiffs cannot prevail under Government Code section 12940(k) for “failure to prevent” discrimination (or harassment or retaliation) if the plaintiff does not prevail on the underlying claim.  The failure to prevent cause of action has been viewed as a derivative cause of action that stems exclusively from a finding that discrimination, harassment or retaliation actually occurred.  Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 925, fn. 4.  The Carter rule has been used as a successful tool for employers when filing motions for summary judgment and eliminates “failure to prevent” tag-a-long claims when the underlying law is not broken.

Employer’s Delay is Fatal to Enforcement of Arbitration Agreement

On January 4, 2021, a California appellate court held an employer waived its right to enforce an arbitration agreement against a truck driver who filed a wage and hour class action against it, by waiting almost twenty months after the case was filed to make an arbitration demand.  The court held that the delay was unjustified because the employer’s conduct in defending the case in court for that period of time was inconsistent with its right to arbitrate and because such delay prejudiced the employee’s ability to use the benefits and efficiencies of arbitration. Garcia v. Haralambos Beverage Co., No. B296923, 2021 WL 22015 (Cal. Ct. App. Jan. 4, 2021).

California Employers: The federal Department Of Labor’s Final Rule For Worker Classifications Does Not Eliminate The Requirements Under California’s ABC Test

The U.S. Department of Labor (“DOL”) just announced a “final rule” setting forth the standard for worker classifications – employee versus independent contractor – under the Fair Labor Standards Act (“FLSA”).  The FLSA establishes federal minimum wage, overtime pay, recordkeeping, and youth employment standards for the public and private sectors.  All employers in the United States must abide by the FLSA; however, many states, including California, set forth more stringent requirements for worker classifications. 

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