• Posts by Jonathan Judge
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    Jonathan Judge advises employers in various labor and employment law matters, including drug testing, mass layoffs (WARN), disparate impact analysis, immigration compliance, trade secrets, privacy, technology in the ...

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.

On January 1, 2018, the California Legislature enacted the New Parent Leave Act (“NPLA”). The NPLA expanded baby-bonding benefits to employees of smaller employers (20-49 employees), a benefit that had been previously available only to employees of larger employers (50 or more employees) under the California Family Rights Act (“CFRA”).

New Posting Requirement

Along with this expansion comes a new poster that discusses the NPLA, CFRA, and Pregnancy Disability Leave:

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/CFRA_PregnancyLeave_English.pdf 

All employers with 20 or more employees must display the poster.  The Department of Fair Employment and Housing (“DFEH”) requires that the posters be placed where they can be easily seen by employees and applicants for employment.

In addition, if 10% or more of the employer’s workforce at any given location speaks a language other than English, the employer is required to post the notice in such other languages.  The DFEH published several translated versions of the poster at its website:

www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/?target=posters

An employer must also incorporate a description of the NPLA in the next version of its employee handbook.

As an alternative to displaying multiple government-issued posters, some employers prefer to purchase and display an “all-in-one” poster from various sources.  Employers should review the posters to ensure they are up to date.

Medical Certification Form

The DFEH also recently updated the form that addresses the certification of a health care provider for leaves under the CFRA and the Family and Medical Leave Act (“FMLA”):

www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/12/CFRA-Certification-Health-Care-Provider_ENG.pdf

Please contact the authors or your usual employment law counsel at AALRR if you have any questions regarding the DFEH, NPLA, CFRA, or other posting requirements.

In two decisions issued within the last month, the California appellate courts broadened the circumstances under which agreements to arbitrate civil claims can be enforced. One court held that an employee effectively entered into an agreement by continuing to work for the company around the same time a claim was filed, while another held that an arbitration agreement applied to a claim even after a lawsuit was filed. The two cases clarified the availability of arbitration agreements to insulate employers from the prospect of jury trials in both such situations.

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.

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.

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.

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.

This summer, Governor Jerry Brown signed Assembly Bill 2282, which resolves ambiguities created by prior pay equity legislation AB 1676 (2016) and AB 168 (2017).  As you may recall, AB 168 prohibits questions on applications and during interviews regarding salary history.  The law also requires employers to provide a pay scale upon demand by applicants.     

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