As we reported last year, the Dynamex v. Superior Court case “radically modified the test for determining whether someone working for a business is an employee or independent contractor.” Early indications are that leading gig economy employers remain unsure how to resolve treatment of individuals who do not neatly fit the traditional definition of either employee or independent contractor.

Being an employer in California is increasingly challenging. In the last few years, new laws have emerged that present additional risks to employers, not just with respect to employees, but also with respect to job applicants.

Recently, the Ninth Circuit in Gilberg v. Cal. Check Cashing Stores, LLC, held the FCRA’s “standalone document” and “clear and conspicuous” requirement means the FCRA disclosure, even if electronic, must be a separate form that cannot include any “extraneous information” (for example, including a liability release in a FCRA disclosure and an at-will employment disclaimer are prohibited). It also clarified that multi-state disclosure forms, containing disclosures from multiple states, are not compliant.

Many employers use outside payroll services to perform the important functions of processing payroll-related data and issuing employee paychecks. Recently, in Goonewardene v. ADP, LLC, the California Supreme Court addressed the question of whether an employee can sue an outside payroll service company for errors in the employee’s pay. In that case, an employee who alleged unpaid wages, brought claims for breach of contract, negligence and negligent misrepresentation against his employer’s outside payroll service provider. Although there was no employment relationship between the payroll service and the employee for unpaid wages under the Labor Code, the employee brought his claims based on the third party beneficiary doctrine, under which an individual or entity that is not a party to a contract (i.e., the third party) may bring a breach of contract action against a party to the contract if that individual or entity establishes that it is likely to benefit from the contract, that a motivating purpose of the contracting parties is to provide a benefit to the third party, and that permitting the third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.

California wage and hour laws are breeding grounds for class actions and ever more popular, Private Attorney General Act (PAGA) claims, that at least for now cannot be avoided with individual arbitration provisions. The bases for many of these claims are things like overtime, meal and rest breaks, all very familiar concepts to employers. In order to ensure compliance, dealers and other employers include compliant policies in their handbooks, and make sure managers are trained not to encourage employees to work through their breaks or off-the-clock. But, should you worry if an employee who comes in at 8 am, routinely doesn't take his lunch until 3 pm because he wants to use the time to pick up his child from school, or another employee always eats at her desk and only clocks 15-minute lunches?

Last year, in Epic Systems v. Lewis, the U.S. Supreme Court affirmed that an employee can be required, as a condition of employment, to enter into a predispute arbitration agreement waiving the right to file or participate in a class action. In the wake of the Epic decision, many have questioned whether employers can now require employees to waive their right to bring a representative action under the Private Attorney General Act (“PAGA”). This week, the California Court of Appeal answered “no.”

Do you require your employees to use their cellphone to check in and out? Do you require them to use their phones for work? If so, you might have to reimburse them.

Many people commute via car to work and use their own cars to get to various work-related events. You might be liable for any accidents they get into in their own car! 

It might be Furry, but it’s not the kind of present you are looking for… Avoid unpleasant and expensive surprises and keep track of all employee hours, even exempt ones.

Do you need a love contract? While Cupid’s arrow can strike at any time of the year, Valentine’s Day is a good time for employers to review certain workplace policies to ensure that office romance doesn’t give way to sour feelings and bitter recriminations.

Los Angeles Business Journal said it created the list to highlight "particularly stellar minority attorneys in the L.A. region who happen to be from a broad cultural spectrum." The list includes only those considered particularly impactful on the legal scene, "while serving as trusted advisors in the LA region, along with maintaining the highest professional and ethical standards, and for contributions to the Los Angeles business and legal community at large."

Starting January 1, 2019, vehicles sold at retail that do not already display permanent license plates must display a temporary license plate. In addition, dealers will no longer use a pre-printed Report of Sale form and display it in retailed vehicles. Instead, they must complete an electronic Report of Sale and display the temporary identification section of the ROS form created through that system in the sold vehicle.

On November 1, 2018, The Fourth District Court of Appeal in AMN Healthcare held that a post-termination employee non-solicitation provision for one year or longer was void under Section 16660, was an unlawful restraint on trade because it prohibited the employees from being able to practice their chosen profession.

National Law Journal says it compiles the list to "spotlight those making a big difference," and describes those chosen for the honor as having "shown a deep passion and perseverance in pursuit of their mission, having achieved remarkable successes along the way."

Time rounding is the practice of adjusting an employee’s hours worked (either up or down) to a certain increment of time. Some employers opt to round time entries for increased administrative ease and efficiency in recording and calculating hours worked. The most conservative approach an employer can adopt is to pay per actual time punches and not round at all, but time rounding can be legally compliant under certain conditions.

Earlier this year, the California Supreme Court set forth a new “ABC” test for determining whether someone working for a business is an employee or an independent contractor. In Dynamex, the court held that the ABC test applies in claims brought by workers under Industrial Welfare Commission Wage Orders but did not decide whether the test would apply to non-wage order claims. The wage orders regulate the minimum working conditions for employees in various industries (with different wage orders applying to different industries). In making its decision, the Dynamex court rejected the multi-factor standard that the California Supreme Court had previously adopted in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, but it remained unclear whether the Borello test could still apply to cases involving non-wage order claims.

By now employers know that rest breaks must be paid and if an employee is paid on a piece-rate basis, the rest break must be compensated at the higher of minimum wage, or their average hourly rate for the workweek. In Certified Tire and Service Centers Wage and Hour Cases, Plaintiffs sued their employer, Certified Tire, claiming that their pay plan was an “activity-based” pay system and did not separately compensate them for non-productive time and rest periods because it allowed them to earn a higher hourly rate based on production. They argued that because they could not increase their hourly rate while working on certain activities or taking rest breaks, this time was unpaid. The employees claimed Certified Tire had wrongly averaged their earnings to contend they were being paid minimum wage for all hours worked, such as in Armenta v. Osmose, Inc.

As we previously reported, back in 2016, OSHA issued a rule that amended its regulations (29 C.F.R. § 1904.35(b)(1)(iv)) to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. The subsequent interpretive guidance on this regulation discouraged employers from implementing certain aspects of workplace safety incentive programs and post-incident drug testing. On October 11, 2018, OSHA issued a new memorandum to clarify its position on these issues and to supersede prior guidance and interpretations that it issued.

Celebrating 40 years of advocacy and service to the lesbian, gay, bisexual, and transgender (LGBT) senior community, SAGE has strengthened its national Board of Directors with the addition of Scali Rasmussen Partner Jeffrey Erdman.

New rules, effective September 13, 2018, have modernized how your service department can provide and receive approval for repair estimates and additional work requests. The new rules also allow you to provide updates on and store work order and authorization information electronically.