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9th Circuit reinstates law barring employers from conditioning employment on employee agreement to arbitrate
In 2019, Gov. Gavin Newsom signed into law AB 51, which prohibits employers from conditioning “employment, continued employment, or the receipt of any employment-related benefit,” such as extra money, on...
To require employee to arbitrate dispute, employer must prove agreement signed
A California employer that seeks to compel a former employee suing for wrongful termination to arbitrate the dispute rather than proceeding in court must prove the employee agreed to do...
Court holds homeowner Johnny Mathis not liable for injuries to independent contractor window cleaner
When you hire an independent contractor to work at your home or business, the nature of the independent contractor relationship gives you control only over what is to be done,...
Columnist: Emerging patchwork of workplace vaccination mandates
Public health officials and workplace regulators continue to offer non-binding guidance to private and public entities seeking to limit access to their premises by employees and other to those fully...
Column: Revisiting topic of mandatory vaccines in workplace
COVID-19 infections in San Diego and elsewhere have surged in recent weeks, even with the availability of vaccines shown to be safe and effective virtually on demand to anyone 12...
Beyond masks: L.A. court faces CAL/OSHA fine for COVID-19 safety violations
An interpreter employed by the Los Angeles Superior Court died on Jan. 12, 2021 after contracting COVID-19 after an outbreak in a downtown courthouse. The next day, a lawyer for...
Column: Paying student-athletes for play
The U.S. Supreme Court’s recent decision in an antitrust challenge to National Collegiate Athletic Association compensation rules brings college athletes, at least in revenue-generating sports, closer to being treated as...
Column: Employers may allow fully vaccinated employees to unmask
On Thursday, the California Occupational Safety and Health Standards Board (OSHSB) adopted revised emergency temporary COVID-19 standards authorizing employers to allow fully vaccinated employees to go maskless in indoor workplaces,...
Column: CAL/OSHA adopts updated COVID-19 workplace rules – for now
All California employees for now will have to continue wearing masks at work virtually all the time regardless of vaccination status, according to revised COVID-19 safety rules just adopted by...
Shifting law on masks and physical distancing in workplace
Shifting law on masks and physical distancing in workplaceThe Centers for Disease Control and Prevention (CDC) recently issued welcome updated guidance that fully vaccinated people may safely perform most indoor...
Applying California COVID-19 rules to vaccine developments
The California Division of Occupational Safety and Health (Cal/OSHA) and the California Department of Fair Employment & Housing (DFEH) have focused recently on how the rules they enforce apply to...
State and city enact new rehire rules in hospitality industry
Hundreds of thousands of San Diego jobs are tied to the hospitality industry. The coronavirus pandemic resulted in a sharp cutback in business and leisure travel to San Diego and...
Alternative to ABC independent contractor test is no safe haven
The California Employment Development Department assessed Vendor Surveillance Corporation $278,692 in unemployment insurance taxes after finding the company should have classified project specialists in 2011-2013 as employees rather than independent...
Three recent rulings show why it matters PAGA plaintiff is stand-in for the state
Under the Private Attorneys General Act of 2004 (“PAGA”), an “aggrieved” employee may sue his employer as a surrogate for state labor officials to collect penalties for labor code violations...
State Supreme Court rules on rounding errors
The California Supreme Court has ruled an employer cannot round the time an employee spends on their meal break to the nearest preset fraction of an hour. The court further...
Court confronts ‘undeveloped’ independent contractor rules for app-based drivers
The San Diego division of the state court of appeal just reversed a trial court preliminary injunction prohibiting app-based shopping and delivery service Instacart “from failing to comply with California...
Can a worker be fired for participating in controversial protest?
The First Amendment shields from government-imposed punishment those who engage in lawful efforts “to petition the government for a redress of grievances,” including peaceful protest. May an at-will California employee,...
ing my friend, Mary Wilson
Tuesday morning, I was jolted awake by the lead story on NPR: Mary Wilson, an original member of The Supremes, had died at age 76. For millions of her fans,...
ABC independent contractor test rule retroactive
The California Supreme Court just ruled that its landmark 2018 Dynamex ruling, announcing a three-part ABC test companies must satisfy to classify workers as independent contractors exempt from California wage...
4 ways Biden wants to remake labor law
Incoming President Joe Biden will work to transform federal law governing the workplace. The biggest changes will require Congressional action. With Democrats controlling the U.S. Senate by one vote, major...
New family leave rights incorporates former CFRA and adds protections
With the new year comes a new California family leave law. The new law replaces the former California Family Rights Act (CFRA). The new law also absorbs and expands key...
The Law at Work: Key developments in 2020
Executive action dominated legal response to pandemicThe governor and other state and local executive officials, especially public health officers, generally set the rules that governed workplaces suddenly upended by the...
Employers have new emergency safety rules to follow for COVID
California Occupational Safety and Health istration (Cal-OSHA) just issued 21 pages of COVID-19-related emergency rules, effective for up to six months. The new rules require employers to establish a written...
Private employers have qualified right to mandate employee COVID-19 vaccination
Earlier this month, Pfizer and Moderna separately announced each of their COVID-19 vaccines had proven at least 90 percent effective in clinical trials. Once federal regulators approve one or more...
Proposition 22 and evolving law governing California contractors
With voter approval of Proposition 22, ridesharing companies succeeded in creating a new kind of independent contractor profession under California law consisting of app-based drivers. The law gives drivers some...
Voting and the law of the California workplace
The 2020 election season will soon end. A record number of Californians are expected to vote by mail; many already have. How do employers deal with their employees who have...
Prop. 22 would create new kind of independent contractor
Proposition 22, a hotly contested ballot measure, would create a new profession under California law consisting of app-based rideshare and delivery drivers with its own set of labor rules. Much...
Pandemic-related legal developments
Effective immediately, a new California law creates a rebuttable presumption through Jan. 1, 2023 that an employee’s COVID-19-related illness or death is work-related, triggering workers compensation benefits, if the employee...
What you need to know about revised independent contractor law
On Sept. 4, 2020, Gov. Gavin Newsom signed AB 2257, which — effective immediately and applicable to work performed since Jan. 1 — revises the rules under which a hiring...
Uber and Lyft face “day of reckoning”
On Aug. 10, San Francisco Superior Court Judge Ethan Schulman issued an order effectively requiring ride-sharing apps Uber and Lyft to reclassify drivers working through those platforms as employees. Judge...
Is a home tutor an employee or independent contractor?
When the pandemic forced the premature closure of school facilities and the transition to remote instruction this spring, many parents suddenly and involuntarily assumed the role of teacher’s aide. With...
A persistent pandemic and the law’s next moves
Gov. Gavin Newsom could not have expected that the restrictions on business operations he imposed in late winter would remain in place with only limited exceptions in midsummer. On the...
Supreme Court narrows gap between federal, California discrimination laws
The U.S. Supreme Court just issued two important opinions addressing workplace discrimination. Those rulings narrow the difference between the federal and California employment discrimination statutes.In a landmark decision, the Supreme...
When is a commute considered work time?
San Diegans are returning to their workplaces after so many spent months working from home. That means the resumption of the daily commute.Non-exempt employees, that is, those eligible for overtime...
Dealing with an employee’s troubling social media post
You’ve just learned someone in your organization has posted an offensive message on their personal social media . An outraged public quickly learns where the employee works. This is getting...
State posts free sexual harassment prevention training for non-supervisors
On May 20, the California Department of Fair Employment and Housing (DFEH) posted a free one-hour training course in the prevention of sexual harassment that California employers may have non-supervisory...
Legal risks and rules for California employers reopening
On May 8, Gov. Gavin Newsom announced the start of Stage 2 of his Resilience Roap guiding the state’s coronavirus response. In Stage 2, certain lower-risk, nonessential California workplaces, including...
Unlimited vacation policies in the coronavirus era
The California Court of Appeal ruled last month that employers may avoid paying departing employees the value of accrued but unused time off by adopting an “unlimited” vacation policy only...
Coronavirus: worker privacy and accommodations
The coronavirus pandemic raises unique questions about workplace privacy and accommodation rights and responsibilities. The California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission...
Hay ayuda federal para los contratistas independientes por el coronavirus
La Ley de Ayuda, Alivio y Seguridad Económica contra el Coronavirus (CARES) de 2020 pone a disposición de una persona que trabaja por cuenta propia y de otras personas que...
Federal coronavirus aid to independent contractors
The Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 makes enhanced federally funded unemployment benefits available to a self-employed individual and others who “otherwise would not qualify for...
Avoidable employer legal errors during the pandemic
Many questions California employers are addressing during the unprecedented coronavirus pandemic are arising on rapidly shifting legal terrain. As of this writing, California is on statewide lockdown.The legal landscape is...
California Supreme Court: Workers must be paid for time spent in security checks
Does California law require California employers to pay their employees for time spent at the worksite waiting for and undergoing exit searches of bags and electronic devices they bring to...
AB 5 and the out-of-state worker
The California Supreme Court’s adoption of the tough ABC independent contractor test in its Dynamex ruling and the California Legislature’s adoption of that test in AB 5 have led some...
Promise not to compete against current employer enforceable
California Business & Professions Code section 16600 generally makes non-compete agreements unenforceable in this state. In its recent decision in Techno Lite, Inc. v. EmCod, LLC, the California Court of...
AB 5 updates: Legislature could clarify, modify and San Diego court takes on trucking industry
In 2018, the California Supreme Court issued its landmark Dynamex ruling, holding that California’s wage and hour rules allow California workers to be classified as independent contractors rather than employees...
Three ways to fix the AB 5 independent contractor law
The California Supreme Court’s landmark Dynamex ruling in 2018 requires hiring entities that wish to classify workers as independent contractors rather than employees for purposes of the state’s wage and...
Questions about law at work that will be answered in 2020
Happy New Year! Watch for the answer to these questions in 2020.How will the AB5 independent contractor law be enforced and modified? Enactment of Assembly Bill 5 was the biggest...
Three 2019 developments in the law at work that will change how you do business in 2020
Independent contractor relationships will be reevaluated. In 2019, the California Legislature enacted AB 5, which affixed in the state’s labor statutes the California Supreme Court’s landmark 2018 Dynamex ruling announcing...
Time to submit discrimination/harassment claims tripled
The most important California workplace laws that will go into effect on Jan. 1 will make it harder to classify a worker as an independent contractor (AB 5) and harder...
Lessons from botched termination of employee on disability leave
If a disabled employee on leave alerts you that he believes the company is not doing enough to find a vacant position he can perform, address the concern. If the...
New law adds obstacle to arbitration agreements
The Economic Policy Institute estimates that about two-thirds of California employers require their employees to arbitrate employment-related disputes, giving up the right to submit those claims to a judge or...
One job, two employers – or not
An employee asserting a claim for California wage violations may have one job, but two or more t employers. There generally is one undisputed employer, which we’ll call A, and...
Live-in personal attendants: When the law at work hits home
The California Court of Appeal recently clarified the wage rights of the thousands of personal attendants working in California households.The FactsOn April 1, 2014, Lea Liday quit her job as...
ABCs of AB5, independent contractor law
Last year, the California Supreme Court announced a demanding three-part test hiring entities must meet to classify workers as independent contractors instead of employees. Gov. Gavin Newsom just signed legislation,...
Restrictions on recruiting former colleagues may be void in California
Employers may no longer be able to keep former California-based employees from recruiting their former co-workers. Recent court rulings have characterized such non-solicitation clauses as a form of long invalid...
9th Circuit: College football players not NCAA employees
Happy Labor Day. The Monday after the Aztecs’ home opener seems a good time to address a recent ruling by the U.S. Court of Appeals for the 9th Circuit that...
Why otherwise defective arbitration agreements may be enforced against high-ranking executives
The California Supreme Court has declared that California has a “strong public policy in favor of enforcing arbitration agreements.” Where the employee has the power to negotiate the of...
Restaurant need not reimburse employees for cost of slip-resistant shoes
The California Court of Appeal in San Joaquin recently ruled that BJ’s Restaurants need not reimburse its hourly employees for the cost of black, slip-resistant, closed-toe shoes the restaurant requires...
Women soccer players’ discrimination lawsuit against U.S. soccer federation
Americans celebrated the U.S. Women’s National Soccer Team’s (USWNT) World Cup victory earlier this month. The champs were feted with a ticker-tape parade through New York City’s fabled Canyon of...
Must a whistleblower identify law he complains was broken?
When a ref blows the whistle on the court or playing field, he first identifies the rule he believes was violated. Must a workplace whistleblower, in blowing the whistle to...
Update: Conservative applicants’ challenge to Google hiring practices clears one hurdle, faces others
James Damore? After attending a Google "Diversity and Inclusion Summit" in June of 2017, Damore posted an internal memo challenging Google’s liberal “ideological echo chamber” that he claimed was...
Employer may identify itself by recorded fictitious business name on paystub
California law requires employers to provide their employees with an “accurate itemized statement,” usually a paystub, each pay period which includes nine distinct kinds of information. The state Legislature enacted...
Clarifying whether a worker is a true independent contractor
It’s been just over a year since the California Supreme Court ruled in Dynamex v. Superior Court that California companies must meet each part of a three-part test to designate...
Distinguishing an enforceable employment arbitration agreement from an unenforceable one
On April 10, a California Court of Appeal in Los Angeles reversed a trial court order declining to enforce Sohnen Enterprises’s arbitration policy, ruling that its employee Erika Diaz...
How much freedom do religious employers have from employment laws?
Title VII, the federal employment discrimination law, does not prohibit a religious corporation from “employment of individuals of a particular religion to perform work” connected to carrying out the corporation’s...
Court: Foreign trainer qualifies as temporary business visitor under uncapped visa program
April 1 is the first day employers may file petitions with U.S. Citizenship and Immigration Services (USCIS) for H-1B visas for the fiscal year. According to the agency’s announcement...
Who is t employer under federal employment discrimination law?
Growers that use temporary or seasonal foreign guest workers must provide those workers with clean and safe housing and transportation to and from the worksite plus nominally priced meals or...
Employee selection an artistic expression in Eddie Money case
A popular singer’s selection or rejection of a drummer for his band is a constitutionally protected act of artistic expression of broad public interest. Therefore, the singer’s former drummer may...
Must you tell a prospective employer that you fired a former employee for sexual harassment?
You recently fired an employee after your investigation substantiated a complaint that he had engaged in sexual harassment. Now, months later, a prospective employer calls to ask about the former...
Act subjects individual officer of employer to penalties for unpaid wages and associated attorneys’ fees
A corporate officer is rarely legally responsible for paying damages to injured employees. A corporate officer, for example, generally is not personally liable for wages the corporate employer didn’t pay.But...
Employer that misclassifies employee as exempt faces liability for overtime pay based on employee’s estimate of hours
A California employee is presumed to be entitled to overtime pay for more than eight hours of work a day or more than 40 hours of work a week unless...
What every California employer must do at the start of 2019
Happy New Year! On this first Monday of 2019, here are specific things every California employer should do to limit employment-related legal challenges over the next 12 months.Confirm that your...
Year-end quiz: The law at work
Over the last 12 months, this column has addressed established principles and new developments in the law at work. See how closely you have been paying attention.The answers include links...
What are ‘hours worked’ that must be paid?
At busy year-end, let’s pause to consider: What are “hours worked” for which an employee must be paid?California work orders regulating wages and hours define “hours worked” as “the time...
Is California’s strong policy against enforcing non-compete agreements less than meets the eye?
For about 150 years, non-compete agreements generally have been unenforceable in California, unlike in most other states. Beginning at Section 16600, the California Business and Professions Code says that, with...
San Diego Court: Stringent independent contractor test limited to claims based on wage orders
The San Diego division of the California Court of Appeal has ruled that the California Supreme Court’s stringent three-part test companies must satisfy to classify a worker as an independent...
New principles to help courts clarify sexual harassment laws in California
New laws take effect next year designed to affect how California courts evaluate sexual harassment claims and how California employers address and prevent sexual harassment.The California Fair Employment & Housing...
Questions and answers about new law requiring women on corporate boards
On Sept. 30, Gov. Jerry Brown signed a measure designed to boost the number of women serving on the boards of publicly held corporations. The Legislature found that, absent aggressive...
Right to severance depends on contract
Former CBS President Les Moonves may get a multi-million dollar severance payout following his dismissal after a number of women publicly accused him of inappropriate behavior.In his “Common Sense” column...
Legal checks on background checks
Jobs in San Diego are plentiful. The local unemployment rate is about 3.5 percent. And yet employers continue to scrutinize applicants, often using investigative agencies to conduct background checks.Late last...
Employers generally must allow employees time off to participate in school activities
School’s back in session. On this first holiday of the new school year, we focus on the right of California employees who are parents to time off to participate in...
The consequences of not paying an employee who resigns all wages due within 72 hours
On Friday, Nov. 14, 2014 at 6:38 p.m., Taryn Nishiki, office manager and paralegal at Bay Area law firm Danko Meredith earning $250 a day, emailed her resignation to the...
Court rules former Indianapolis Colt ineligible receiver of California workers comp
With the start of the NFL’s 99th season barely a month away, today we tackle how workers compensation applies to cumulative injuries on the field that later result in disability.In...
U.S. Supreme Court says no to union fees in government workplace
The current focus on the U.S. Supreme Court makes this a good time to discuss a major ruling the high court issued in late June.addressing the law at work.In Janus...
When is an employer liable for an employee’s auto accident
Generally, the law considers the employment relationship suspended while an employee is going to the workplace from home and coming home from the workplace. The “going and coming” rule means...
Not every workplace complaint is legally protected whistleblowing
A ref only blows his whistle on a play when he perceives a specific rule has been violated. He does not blow the whistle, for example, because he objects to...
Salaried workers entitled to overtime pay unless exempt
At mid-year, it’s back to basics to address the misconception that a private sector employee paid a set weekly salary rather than by the hour is never entitled to overtime...
Don’t adopt English-only workplace policy without clear business need
The U.S. Equal Employment Opportunity Commission is suing Albertsons in San Diego federal court over what the agency calls the grocer’s “unwritten English-only policy, which Albertsons implemented as essentially a...
California Supreme Court narrowly defines independent contractor
In a landmark unanimous ruling, the California Supreme Court just made it easier to distinguish between an employee and an independent contractor and harder to designate a worker as an...
Ninth Circuit: Employers can’t use salary history to set salary
Both the federal and California state Equal Pay Acts authorize employers to consider a “factor other than sex” in setting salaries. California’s law expressly prohibits employers from using prior salary...
Secret sexual harassment settlements and taxes
Taxes are due tomorrow. Among the less noticed features of the federal tax overhaul enacted late last year is a provision eliminating the deductibility of sexual harassment settlement payments and...
ICE block: New state law limits employer cooperation with immigration officials
President Donald Trump’s U.S. Immigration and Customs Enforcement (ICE) is aggressively enforcing federal immigration laws. A new California law, the Immigrant Worker Protection Act, bars all public and private California...
California Supreme Court: OT rate for flat bonus must be based on nonovertime hours worked
Except for executives, professionals, and others exempt from overtime rules, California employees are legally entitled to one-and-half times their “regular” hourly rate of pay for hours over eight in a...
Lessons from Google engineer’s Round 1 loss in dismissal fight
The Oakland office of the National Labor Relations Board soon may dismiss former Google engineer James Damore’s charge that his termination for writing and circulating a provocative memo challenging Google’s...
The law’s place in ongoing sexual harassment policy
For the last several months, the country – the world, really -- has been having a dialogue about how to eradicate workplace sexual harassment. There have been career-ending consequences for...
Pot and the California employer post-Prop. 64
Proposition 64, which voters approved in 2016, says a Californian who is at least 21 who uses marijuana cannot be prosecuted by state or local authorities. But the decriminalization of...
What to watch as the Google memo writer’s lawsuit unfolds
Usually I write about a case to explain a significant ruling. But sometimes the filing of a lawsuit itself is notable. The complaint former Google software engineers James Damore and...
Is terminating a severely overweight employee disability discrimination?
Ketryn Cornell had worked as an at-will employee at the Berkeley Tennis Club for 15 years when she was fired, she claimed, because new club manager Rigoberto Headley disapproved of...
4 things every California employer should do before Jan. 1
In exactly one week, 2018 begins. Those who manage California businesses should take the following steps during this shortened last workweek of the year.Remove references to salary history and criminal...