In Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 the California Supreme Court answered a legal question sent to it from the Federal Court asking if the relevant wage order and statutes.  The Court held that California does not adopt the federal FLSA permitting application of the (federal) de minimis rule when the employer required the employee to work “off the clock” several minutes per shift.  The Court held that the state wage and hour rules do not permit the de minimis “Defense”.  Read more … Continue Reading Starbucks Must Pay for All Employee’s Work, even if just a drip of time! (Troester v. Starbucks Corp. (2018) 5 Cal.5th 829)

Arave v. Merrill Lynch (2018) 19 Cal.App.5th 525 reinforces that in labor law employees have nothing to lose from suing.  Plaintiff sued his employer under FEHA and lost.  The defendant employer previously served a CCP 998 offer to settle of $100,000 which was rejected.  The employee lost his case and the trial court awarded $83,000 in costs to the employer.  This was reversed holding only the “frivolous claim”  statute Labor Code 218.5(a) could shift costs/fees to a losing employee.

Note: there is now a split in authority on this 998 issue so wait for the Supreme Court to resolve this.

In Bustos v. Global P.E.T. (2018) 19 CA5 th 558 an employee who proved discrimination as a motivating factor due to his disability (carpal tunnel syndrome vs. employer who said it was an economic lay off) lost an award of attorneys fees and costs under Harris v. City of Santa Monica (2013) 56 CA4th 203 because he did not win any monetary damages even if discrimination was a motivating factor because Harris only says the court “may” award fees, not that it is mandatory.

Also, under contract law, courts have discretion when neither side achieved a complete victory.  (Marina Pacifica HOA v. Southern Californian Financial (2018) 20 CA5th 191(

Finally, a common sense ruling.

After settling a class action lawsuit against temporary staffing agency, workers brought wage and hour putative class action raising identical claims against the client-company where they had been placed to work.   The Court of Appeal held that:
1.  agency and client-company were in privity for purposes of wage and hour actions, and thus settlement in prior action was res judicata against workers;
2. client-company was agent of agency with respect to payment of workers, and thus was released party under settlement agreement in prior wage and hour action against agency.
The subject underlying release included Civil Code 1542 language and released any PAGA claims.  The issue was the release did not define the employer released broad enough, it only said  temp Company, its parent, subsidiaries, officers, agents, successors, employees.

 

 

 

The California Supreme Court changed the test to determine what is an independent contractor vs. employee to a new “ABC” test.  The 2nd prong, is the tough one for employers.
Dynamex Operations West, Inc. involved a trucking company which changed its policy from classifying drivers as employees to independent contractors.  The Court applied a new “ABC” test that requires an independent contractor to pass ALL three tests:

  1. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. That the worker performs work that is outside the usual course of the hiring entity’s business.
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.  
  4. Note: For some business, such as realtors, under Business & Professions Code § 10032, the law  specifically declared that real estate licensed salespersons and brokers may choose an independent contractor relationship even though they are subject to real estate laws requiring broker supervision and salespersons activity to be conducted under only one broker’s license.

New Labor Code Section 218.17 (AB 1701) makes a general contractor jointly liable for the unpaid wages, fringe benefits, or other benefit payments or contributions of a subcontractor (at any tier).

Labor Code 218.7 provides “down-the-chain protection” to a sub-contractor’s employees if they are  misclassified as as independent contractors or not paid. The bill applies even if the general contractor has paid the sub!!!!  Labor Code 218.7 does not apply to public projects.

To quote the bill’s author, Tony Thurmond:

“This measure incentivizes the use of responsible subcontractors and helps to ensure the economic vitality of the construction industry and its role in the creation of good paying middle class jobs.”

To the GC, this means you are screwed.  To the Property owner/Developer this means your construction costs will increase and small contractors will go out of business.  To Employment lawyers they will file more lawsuits.  To the Labor Board, they will hear more cases, etc.

smoke-free-workplaceUnder Lab C §6404.5, no employer may knowingly or intentionally permit, and no person may engage in, smoking of tobacco products in an enclosed space at a place of employment.  Does this apply to vaping?  Why not?  The potential penalties for violations include a fine of up to $500 for each violation for repeat offenders. Lab C §6404.5(j), and maybe worse from a creative PI lawyer! Continue Reading No Smoking, and/or Vaping at Work Laws (Labor Code §6404.5)

equal pay equal workLabor Code §1197.5. bars employers from paying employees less than other employees of the opposite sex for substantially similar work regardless of their job titles or the location where they work.  Current law prohibits an employer from paying an employee less than employees of the opposite sex in the same establishment for equal work on jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions. This law prohibits an employer from paying its employees less than employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility. Continue Reading Gender Pay Discrimination “big picture same pay for same work” (Labor Code §1197.5)

gonzalezcheerleader.jpg_r900x493Yaaay! Lets hear it for the lawyers!  Cheerleaders are not classified as employees.  Labor Code 2754.  Note, this only helps California based team cheerleaders.  Assembly Women Lorena Gonzalez, was the sponger of this bill.  Lorena was a Stanford cheerleader, she is in the photo, second from the left.  She was a smart and hot cheerleader!