• Posts by Ronald Novotny
    Posts by Ronald Novotny
    Of Counsel

    Ronald Novotny has been representing employers in labor and employment matters in federal and state courts and administrative agencies in California since 1981. He has extensive experience involving union and employer unfair ...

On September 2, 2022, the California Court of Appeal, Second District, delivered a rare victory for California construction employers in Jerome Oswald v. Murray Plumbing and Heating Corporation (2022) __ Cal.Rptr.3d __, Dkt. No. B312736.  At its core, this case shows how qualifying employers can—and should—take advantage of California’s construction industry exemption from the Private Attorneys General Act of 2004 (“PAGA”).

California Supreme Court Issues Groundbreaking Decision Applying Prevailing Wages to Non-Construction Work for Sanitation District

On March 29, 2021, the California Supreme Court issued a landmark ruling involving the State’s prevailing wage law, holding for the first time that the law’s requirements could be applied to employees who performed work for a private employer under a contract with a sanitation district.  (Kaanaana v. B. Bus. Servs., Inc., No. S253458, 2021 WL 1166963 (Cal. Mar. 29, 2021))  Prior to this decision, the law had generally been interpreted to apply only to construction work pursuant to a contract entered into with a public entity.

Categories: Prevailing Wage
Ninth Circuit Issues Important Decision on Per Diem Pay 

On February 8, 2021, the United States Ninth Circuit Court of Appeals issued a decision clarifying the circumstances under which a per diem benefit must be included in the regular rate of pay for overtime purposes under the Fair Labor Standards Act (FLSA).  The court held that since per diem benefits functioned as compensation for work rather than as reimbursement for expenses incurred by traveling healthcare clinicians, they were improperly excluded from the clinicians’ regular rates of pay for purposes of calculating overtime pay under federal law. Clarke v. AMN Servs., LLC (9th Cir., 2021) No. 19-55784, 2021 WL 419473.

Categories: Wage & Hour
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).

Recently, a California Court of Appeal held that crew members on a ship that provided maintenance services to offshore oil platforms were governed by California’s wage payment laws.  The decision, in the case of Gulf Offshore Logistics v. Superior Court, held that the State’s laws applied to such employees because California served as the basis for their operations, even though they resided in other states and their employer was located in Louisiana.  Gulf Offshore Logistics, LLC v. Superior Court of Ventura Cty., WL 7137048 (Cal. Ct. App. Dec. 7, 2020).

Categories: Wage & Hour

The City of Long Beach, California enacted a new supplemental paid sick leave ordinance on May 19, 2020, which is effective immediately.  The ordinance applies to employers with 500 or more employees nationally and excludes those who are required to provide paid sick leave benefits under the federal Families First Coronavirus Response Act. 

In Anthony v. TRAX International Corp. (April 17, 2020, Case No. 18-15662), the Ninth Circuit held the limitation of using after-acquired evidence to merely mitigate damages did not extend to evidence used to show that an Americans with Disabilities Act (“ADA”) plaintiff is not a qualified individual, an element of a prima facie case of disability discrimination.

EEOC Issues Guidance on Employers' Responses to the Coronavirus Pandemic

On March 19, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued guidance for employers on responding to legal concerns under the Americans with Disabilities Act (ADA) arising out the COVID-19 (Coronavirus) pandemic.  The guidance, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, addresses common employer concerns about what medical inquiries an employer can make, when it can ask employees to leave the workplace based on such concerns, and under what circumstances an employer can ask for a doctor’s release from such employees before allowing them to return.  Among the key components of the guidance are the following:

Tags: EEOC
Keep On Truckin’—California State Court Judge Finds ABC Test Does Not Apply to Owner-Operators; Federal Court Extends TRO In Favor of California Trucking Association

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.

California Supreme Court Rejects Conversion Claim for Unpaid Wages

Can an employee sue his employer for unpaid wages by claiming that his employer and its principals “converted” his personal property to their own use, and that the principals are individually liable for the employer’s conduct? No, held the California Supreme Court in the recent case of Voris v. Lampert, (Cal S Court Case No. S241812), issued on August 15, 2019. 

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