Labor & Employment Law Blog

On May 29, Assembly Bill (AB) 5 passed the California State Assembly, moving Californians one step closer to full implementation of a new test for independent contractor classification. AB5, which was introduced by Assemblywoman Lorena Gonzalez of San Diego, seeks to codify the California Supreme Court’s April 2018 Dynamex decision, which established the “ABC test” to determine classification of workers as employees or independent contractors.

Since its introduction in December 2018, AB5 has undergone several revisions.  Most significantly, the bill would confirm that the ABC test will be used in making worker classification decisions under California’s Wage Orders, Labor Code, and Unemployment Insurance Code.  Also important is a set of carve-outs that appeared in the most recent iteration of the bill: the ABC test would not apply to doctors, dentists, lawyers, architects, accountants, engineers, insurance agents, investment advisers, direct sellers, real estate agents, hairstylists and barbers renting booths at salons, some marketers, and human resources professionals. 

The California Chamber of Commerce and the “I’m Independent” Coalition are seeking to make additional exemptions to AB5, including carve-outs for short-term projects, business-to-business contracts, and others.

AB5 will now move to the Senate, where it will be heard in Senate Labor Committee in late June 2019.

Guidance for Employers

Though AB5 has not yet been passed into law, California businesses using independent contractors should consult with employment counsel concerning classification of contractors under the Dynamex ABC test.  The authors of this article welcome any questions on the legislation or the ABC test, and are following developments in the law closely. 

For more information and updates about Dynamex and its implications, employers can read our prior Alert on Dynamex here and register for the Firm’s complimentary webinar on this topic here.

Representative claims brought under the California Private Attorney General Act of 2004 (“PAGA”), Labor Code § 2699 et seq., will remain before the court for the foreseeable future. In a recent case, Correia v. NB Baker Electric, Inc., the California Court of Appeal again confirmed that employers cannot compel employees to arbitrate their PAGA claims, no matter the existence of an arbitration agreement, without some evidence that the State of California consented to the employee’s waiver of the right to bring the PAGA claim in court.

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.

California’s Fourth Appellate District, Division One, recently upheld a trial court judgment in favor of Certified Tire and Service Centers (“Certified Tire”), finding the company’s compensation system for its tire technicians complied with California’s wage and hour laws.

In Golden v. California Emergency Physicians Medical Group, et al., a divided Ninth Circuit panel held that a settlement agreement between a doctor and his former employer violated Cal. Prof. & Bus. Code § 16600 because a “no re-hire” provision of the agreement placed a “restraint of a substantial character” on the doctor’s medical practice.

On July 18, 2018, the Ninth Circuit Court of Appeals threw out a proposed class action lawsuit alleging that Taco Bell had violated California’s meal period and overtime requirements by requiring employees who purchased discounted meals to stay on the premises during their meal period.  The Court held that Taco Bell did not violate California law and affirmed an order granting summary judgment in favor of Taco Bell in a proposed class action suit titled Rodriquez v. Taco Bell Corp. (9th Cir. Case No. 16-15465).

On June 25, 2018, a California court of appeal offered employers who use rounding systems to calculate employee payroll a reassuring ruling, approving a policy that rounded employee’s time to the nearest quarter hour. In AHMC Healthcare, Inc. v Superior Court (2018) No. B285655, the issue arose out of AHMC Healthcare’s use of a payroll system that automatically rounded employee hours up or down to the nearest quarter hour prior to calculating wages and issuing paychecks (instead of using the employee’s exact check-in and check-out times). Emilio Letona and Jacquelyn Abeyta, both employees of AHMC Healthcare, brought a class-action suit against AHMC Healthcare, Inc. for failure to pay wages and failure to furnish timely and accurate wage statements. The plaintiffs claimed this rounding system was in direct violation of the Labor Code, and presented evidence of time records from San Gabriel Valley Medical Center L.P. (where Letona was employed) and AHMC Anaheim Regional Medical Center L.P. (where Abeyta was employed).

A California jury returned a verdict in favor of Dollar Tree Stores, Inc. last week, finding that the discount retailer’s practice of printing employee paystubs on cash register receipts did not violate California law requiring employers to provide accurate wage statements to employees.  Guillen v. Dollar Tree Stores Inc., case number 2:15-cv-03813, (U.S. District Court for the Central District of ...

On May 16, 2017, the Court of Appeals held that a company that obtains workers from a temporary staffing agency can enforce the arbitration agreement entered into between the temporary workers and the staffing agency.  See Garcia v. Pexco, LLC, No. G052872, 2017 WL 1435788 (Cal. Ct. App. Apr. 24, 2017).

The United States Supreme Court recently ruled that an appellate court must review a district court’s decision whether to enforce a subpoena issued by the EEOC under an abuse of discretion standard rather than de novo review which provided no deference to the district court’s decision.  McLane Co. v. the Equal Employment Opportunity Commission, 137 S. Ct. 1159 (2017).

Facts and Procedural Background

In ...