California Employment Legislation

A new change to California’s Civil Discovery Act has all of the trappings of a burdensome and costly requirement for employer defendants litigating in California state court. In addition to a litany of new California employment laws discussed in prior blog posts, Governor Gavin Newsom also signed into law SB 370, which became effective on January 1, 2020. SB 370 now requires the producing party in a civil litigation to identify the specific document request number to which documents are responsive. Although this new requirement will likely increase defense costs for many employers, as we discuss below, it can also be used to help streamline document demands while providing greater opportunities to incorporate technological solutions into the discovery process.
Continue Reading The Cost and Burden of Discovery for California Employers Will Likely Increase in 2020

As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law.  Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial Welfare Commission (“IWC”) Wage Orders, and the California Unemployment Insurance Code, will generally depend on whether they satisfy all three prongs of the so-called ABC Test:

  1. The worker must be free from the control and direction of the hirer in connection with the performance of the work.
  2. The worker must perform work outside the “usual course” of the hirer’s business.
  3. The worker must be customarily engaged in an independent established trade, occupation, or business of the same nature as the work performed.

There are a myriad of occupational and industry exemptions to the application of the ABC Test, many of which are highlighted here.

Having tightened independent contractor classification standards, the next big target for the state legislature may be joint employer liability.


Continue Reading Back to the Joint Employer: Having Changed the Classification Test for Independent Contractors, Will the California Legislature Target the Joint Employer Test Next?

On October 9, 2019, the Second Appellate District of the California Court of Appeal issued a decision clarifying the rate of pay at which an employer must pay meal period, rest break, and recovery period premiums. More specifically, the appellate court answered the question: what does the “regular rate of compensation” in Labor Code Section 226.7(c) actually mean? In Ferra v. Loews Hollywood Hotel, LLC, a 2-1 majority of the Court of Appeal affirmed the trial court’s holding that in paying meal period and rest break premiums, the regular rate of compensation is equal to one hour of the employee’s base hourly wage and is not synonymous with the “regular rate of pay” used to calculate overtime payments. This clarification is important to every employer in California.
Continue Reading California Appellate Court Clarifies the Monetary Amount for Meal Period, Rest Break, and Recovery Period Premiums, and Affirms an Employer’s Neutral Rounding Policy

On October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law. AB 1291 was supported and endorsed by various unions, including the United Food and Commercial Workers Western States Council, a 170,000-member branch representing thousands of cannabis workers. This bill, as well as other California statutes and local laws, signals a growing insistence by state and local regulators that employers doing business in California accept pro-union requirements. However, many of these new pro-union laws, including AB 1291, may be unconstitutional.
Continue Reading AB 1291 Forces California Cannabis Companies To Sign “Labor Peace Agreements” With Unions, But Statute May be Unconstitutional

As previously reported, Governor Gavin Newsom recently signed into law AB 5. The controversial law narrowing the classification of independent contractors was aimed at companies like Uber and Lyft. But what does it mean for the entertainment industry?
Continue Reading California AB 5 in Entertainment, Media and Advertising

To close out the 2019 legislative season, Governor Gavin Newsom signed dozens of bills into law, which will have lasting impacts for California employers. In addition to the summaries and clarifications from prior blog posts, below is an overview of key new employment laws.
Continue Reading 2020 Vision: California’s New Employment Laws

On July 3, 2019, Governor Gavin Newsom signed into law Senate Bill 188 also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act.  The CROWN Act amends the California Education Code and the Fair Employment and Housing Act’s definition of race to include traits historically associated with race, including hair texture and protective hairstyles.  Protective hairstyles include, but are not limited to, “braids, locks, and twists.”
Continue Reading A Heads Up On The CROWN Act: Employees’ Natural Hairstyles Now Protected

In a continuing trend that began with the launch of the MeToo Movement, the California legislature recently passed Assembly Bill 171, another proposed law designed to expand safeguards for employees who have been the victims of sexual harassment. This latest measure follows California’s enactment of a new law in 2017, which, as we discussed in a previous article, requires that employers provide all new (and certain current) employees with an explanation of rights for victims of sexual assault and stalking.
Continue Reading Coming Soon? Expanded Employment Protections for Victims of Sexual Harassment

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 California’s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers Remain Preempted by Federal Law . . . For Now

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 “Panic Button” Laws Make Their Way Across The U.S.