Signaling another positive development for interstate motor carriers operating in California, the United States District Court for the Central District of California (the “Central District”) recently dismissed a truck driver’s claims that motor carrier U.S. Xpress failed to provide a class of drivers with legally required meal and rest periods compliant with California law. See, Ayala v. U.S. Express Enters., Inc. et al. Case No. 5:16-cv-00137-GW-(KKx) (Order Granting Partial Summary Judgment). The Court, in granting U.S. Xpress’s motion for partial summary judgment, stated that it did not possess the authority to review the merits of the case since the Federal Motor Carrier Safety Administration (“FMCSA”) determined, in December 2018, that Federal law preempts California state law. The Central District applied the FMCSA’s order retroactively to the Ayala case, filed in 2016, stating that it was bound by the FMCSA order and would apply the order in similar cases unless and until the order was invalidated by the Ninth Circuit. Continue Reading
Amid the confusion and tensions of the WGA-ATA dispute over packaging fees and agency ties to affiliated production entities, more than 7,000 termination letters have been sent out to non-franchised agents who once represented WGA members. The mass firing was “mandatory rather than optional” and 92% of writers who voted in favor of the Code of Conduct acted in concert as insisted by the Guild. As WGA West president David A. Goodman said, “when the guild takes action, we do so as a group… we don’t ask an individual member to take a stand. We do it together…”
The WGA has sent a strong message to the ATA through the coordinated firing, but there remains uncertainty as to how the average writer will procure employment when he or she no longer has ccess to the only person (other than the writer him/herself) that is legally entitled to procure employment—a licensed talent agent. Continue Reading
Last August, we wrote about a Chicago ordinance requiring hotel employers to, among other things, equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices. The emergency contact devices, referred to as “panic buttons,” may be used to summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence. The Chicago ordinance took effect July 1, 2018. Continue Reading
On April 29, 2019, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued Memorandum GC 19-06, which provides guidance to the Board’s regional offices on how to handle cases involving Beck objectors and how to allocate secondary expenses related to union lobbying activity after the Board’s March 1, 2019 decision in United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019). In Communications Workers of America v. Beck, the Supreme Court held that a union cannot use agency fees collected from a non-member employee—that is, an employee subject to a union security clause but who chooses not to be represented by the union—on activities unrelated to collective bargaining, contract administration, or grievance adjustment if the non-member employee objects to such an expenditure (a so-called “Beck objector”). 487 U.S. 735 (1998). As we recently explained in our March 2019 post covering Kent Hospital, the Board further limited the permissible uses of agency fees by ruling that lobbying costs incurred by a union fall outside the scope of a union’s statutory duties as the exclusive bargaining representative of non-member employees. Continue Reading
Last year, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a landmark decision that dramatically increased the risk of misclassifying individuals as independent contractors. As previously reported, although Dynamex replaced the longstanding Borello standard with the “ABC” test, it also left two critical questions unaddressed. First, Dynamex did not address whether the ABC test applies retroactively. Second, Dynamex did not decide whether its scope was limited to coverage under the Industrial Wage Commission’s (“IWC”) Wage Orders or if its holding generally applied to the Labor Code as a whole. In the last five days, both questions have been answered.
On May 2, 2019, the Ninth Circuit found that Dynamex applies retroactively under California law in Vazquez v. Jan-Pro Franchising International, Inc., the most notable decision to date regarding Dynamex’s retroactivity. Shortly thereafter, on May 3, 2019, the Division of Labor Standards Enforcement (“DLSE”), California’s wage and hour enforcement agency, issued a letter opining the ABC test applies to both the IWC Wage Orders and any Labor Code provisions that enforce requirements set forth in the Wage Orders. Although neither the Ninth Circuit nor the DLSE can authoritatively interpret California law, these developments indicate that Dynamex’s scope—which governs hundreds of thousands of independent contractor relationships throughout the state—has continued to expand its already extensive reach. Continue Reading
In connection with last month’s ruling from a Washington, D.C. district court reinstating the U.S. Equal Employment Opportunity Commission’s (“EEOC”) collection of employer pay data previously stayed by the Office of Management and Budget (“OMB”) (Component 2 of the revised EEO-1 form), as previously reported here, the EEOC announced on May 2, 2019 that it has opted to collect Component 2 data for 2017 in addition to 2018. On April 25, 2019, the district court ordered the EEOC to collect a second year of pay data from select employers, giving the EEOC until May 3, 2019 to advise whether it would collect 2017 or 2019 data. Continue Reading
In a 2010 decision, Stolt-Nielsen S. A. v. Animalfeeds International Corp., the United States Supreme Court held that parties may not be compelled to submit to class arbitration under the Federal Arbitration Act (FAA) unless there is a contractual basis for concluding that they agreed to do so. The Court held that such an agreement could not be presumed from the fact that the arbitration agreement is “silent” on the issue of class arbitration or the mere fact that the parties agreed to arbitrate. Continue Reading
On April 25, 2019, a Washington, D.C. federal judge ruled that all employers with 100 or more employees and federal contractors with 50 or more employees have until September 30, 2019 to submit their 2018 pay data to the U.S. Equal Employment Opportunity Commission (“EEOC”), reflecting how much the employers paid workers of different sexes, races and ethnicities last year. This data is to be submitted as Component 2 of the EEO-1 form, and will supplement the EEOC’s long-running collection of employers’ demographic data. Continue Reading
California lawmakers passed over a dozen employment-related bills last year that imposed new or different obligations on California employers. Just as employers may be finally settling into the new world order and getting into compliance with the litany of new laws, there are two new legislative updates that employers must be aware of. These new pieces of legislation serve as an important reminder that employment laws are constantly changing, and employers caught flat footed may be left to suffer the consequences.
In a welcome change from Sacramento, on February 26, 2019, the California Senate introduced Senate Bill 778, which is designed to clarify when employers are required to provide sexual harassment training and education to employees under California’s Fair Employment and Housing Act and when retraining is required. Continue Reading
As of May 20, 2019, NYC will prohibit employment discrimination based on an employee’s “sexual and reproductive health decisions,” which the new law defines as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.” Continue Reading