S.F. Minimum Wage Increases

San Francisco minimum wage increases to $15.59 per hour on July 1, 2019.

San Francisco, like many cities and counties in California, adopted a minimum wage rate higher than California or Federal minimum wage. The minimum wage increased to $15.00 on July 1, 2018, and now will increase each year based on the Consumer Price Index.

The City calculated the July 1, 2019 rate using the process required by S.F. Admin Code Section 12R.4. The Consumer Price Index for urban and clerical workers in the San Francisco area increased 3.934% between 2017 and 2018. The City applied that increase to the current $15.00 minimum wage to find the new July 1, 2019 rate of $15.59. 

Employers must display the San Francisco Minimum Wage Poster informing employees of their rights. Download a PDF of the 8.5″x14″ poster.

For more information, visit www.sfgov.org/olse/mwo. You can also call (415) 554-6292 or email mwo@sfgov.org.

Other cities and counties with minimum wage increases above California and Federal minimum wage include:

  • Belmont
  • Berkeley
  • Cupertino
  • El Cerrito
  • Emeryville
  • Los Altos
  • Los Angeles
  • Los Angeles County
  • Malibu
  • Milpitas
  • Mountain View
  • Oakland
  • Palo Alto
  • Pasadena
  • Redwood City
  • Richmond
  • San Diego
  • San Francisco
  • San Jose
  • San Leandro
  • San Mateo
  • Santa Clara
  • Santa Monica
  • Sunnyvale

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fall 2018 New Employment Laws – Part 5 – Safety Issues

Fall 2018 New Employment Laws – Part 5

2018 has closed and 2019 has begun. This is our final recap of new employment laws in California. The Legislature expanded human trafficking awareness training for certain classes of employers and made changes to workplace health and safety requirements. Employers and employees should ensure they are up to date with these new employment laws.

New Employment Laws Regarding Human Trafficking Awareness

Two new laws require employers to train certain employees who might come into contact with victims of human trafficking or receive reports about such activity. AB 2034 requires “intercity passenger rail or light rail stations” and “bus stations,” to provide at least 20 minutes of training about human trafficking to employees who might interact with victims or receive reports of such activity. Training must include the definition of different types of trafficking, common misconceptions, warning signs, and how to report trafficking. This requirement applies to new and existing employees.

SB 970 is similar, but applies to hotels and motels. It is important to note that existing law requires many businesses, including airports, ERs, rest areas, job recruitment centers, and truck stops, to post notices that include human trafficking hotline and aid organization information.

New Employment Laws Regarding Workplace Health and Safety

AB 2334 changes the amount of time employers are required to keep injury and illness records. This law requires businesses to maintain records for five years. This is in response to recent federal regulatory changes, and more state actions may come in the new year. Another law has little immediate impact on employers but might be a sign of future shifts in the regulatory landscape.

SB 1113 creates a committee to create voluntary standards for workplace mental health. While this framework remains entirely optional for the time being, it signals a new focus on ensuring protections for employees’ mental health in addition to their physical health on the job.

As always, contact our offices with any questions about employment law or if you are in need of legal services. Happy New Year!

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fall 2018 New Employment Laws – Part 4 – Sexual Harassment

New Sexual Harassment Laws

Over the past year, many prominent entertainers and public figures have been brought down by accusations of sexual misconduct. The #MeToo movement changed our culture, bringing to light issues of sexual harassment and assault left in the dark for years. The movement reached the California Legislature, who passed many new sexual harassment laws this year expanding employee protections and increasing employer liability. There is also a new requirement for gender representation on corporate boards.  Some changes are narrowly targeted, while others impact most or all California businesses. All will have a major impact on California employers and employees.

Broad New Sexual Harassment Protections

Defamation Protection: AB 2770 protects people who report sexual harassment from libel or defamation suits. It exempts both an employee’s credible reports of sexual harassment and an employer’s communications about these reports from claims of defamation. It also makes the law clear that past employers can say whether they would rehire an employee and whether that determination is based on claims of sexual harassment when asked for references. Accusations based on malice or lacking credibility are exempt from this protection.

Confidentiality Clauses and Nondisclosure Agreements: The Legislature limited confidentiality clauses in certain settlement agreements. In lawsuits regarding sexual assault, sexual harassment, or any other sex-based harassment (such as in the workplace or housing), settlement agreements can no longer require confidentiality. SB 820 provides an exception to keep victims’ identities secret, however. And AB 3109 prohibits any clauses in nondisclosure agreements that prevent people from testifying in court or administrative hearings about criminal conduct or sexual harassment. Both these provisions go into effect on January 1st, 2019.

Training: SB 1343 expands new sexual harassment prevention training to all employers with five or more employees. Going into effect on January 1st, 2020, all companies covered must provide two hours of training to supervisors and one hour of training to all other employees within six months of hire, and again every two years.

Training must contain information about “the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.” Temporary employees must be trained “within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first” and temp agencies must perform this training. Employers with 50 or more employees are already required to provide this training.

SB 1300: The California Legislature made many broad changed to employment practices and sexual harassment laws with SB 1300. First, it prohibited employers from requiring employees waive rights to sue or make other claims under the  Fair Employment and Housing Act in exchange for a job, raise, or bonus. This prohibition also applies to non-disparagement agreements that prevent employees from talking about unlawful conduct in a workplace.

Second, the Legislaturemade businesses liable for any unlawful harassment of employees, interns,applicants, or contractors by non-employees “if the employer, or its agents orsupervisors, knows or should have known of the conduct and fails” to act.Essentially, “An entity shall take all reasonable steps to prevent harassmentfrom occurring” under its watch. Third, this law prevents defendants who win inFEHA lawsuits from being awarded fees and costs unless the suit is frivolous or ungrounded. 

Industry-Specific Sexual Harassment Changes

Not every change is so sweeping. Many new laws passed this year touch only certain sectors of the economy:

Talent Agencies: AB 2338 requires talentagencies in California to provide materials about “sexual harassmentprevention, retaliation, and reporting resources” and “nutrition and eatingdisorders” to adult artists in a language they understand. It also requiresminors and their legal guardians to receive sexual harassment preventiontraining before they receive an entertainment industry work permit. Talentagencies must keep three years of records as proof of training.

California Legislature: The Legislature triedto clean up its own workplace. AB 403 makes it a crime for legislators or theirstaff to interfere in a whistleblower’s disclosure of violations or retaliatesagainst them. SB 419 further protests legislative staff or lobbyists fromretaliation and requires the Legislature to keep complaint records for 12years.

Professionals: Current law makes professionals liable for sexual harassment in a professional relationship when it is difficult for the victim to end that relationship. SB 224 adds investors, elected officials, lobbyists, directors, and producers to this category, which also includes lawyers, doctors, social workers, real estate agents, bankers, and any“substantially similar” professional relationship setups.

Gender Representation

The Legislature also took steps toward requiring gender parity on corporate boards. SB 826 requires publicly heldcorporations based in California to have at least one female director on itsboard by the end of 2019. By the end of 2021, the requirement is bumped up totwo or three women depending on the board’s size. The CA Secretary of Statewill post the number of companies in compliance on its website, and can finethose who are not.

2018 was a big year for new sexual harassment and gender-related employment laws. It can be very confusing for employers to keep track of their requirements and employees to stay informed of their rights. If you have questions, contact Robert Nuddleman.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fall 2018 New Employment Laws – Part 3 Joint Liability

Fall 2018 New Employment Laws – Part 3

Now that the candy and costumes are gone, we have more updates and tweaks to California employment law to report. This week we focus on a joint liability. Yay! More ways employers can be liable for the mistakes of others. SB 1402 expands joint liability for truckers. The legislature clears up confusion from last year’s AB 1701.

Expansion of Joint Liability

SB 1402 has two major parts. The DLSE must create and maintain a list of trucking companies that have unpaid “judgment[s], tax assessment[s], or tax lien[s]” on the DLSE website. This includes judgments stemming from a myriad of employment-related violations such as

Trucking companies would only be added to this list after the period for all judicial appeals expires.

The second part of SB 1402 is much broader. It extends joint liability to any company using a trucking company on the list. Businesses using a company on the list share “all civil legal responsibility and civil liability” with the trucking company for “for the full amount of unpaid wages, unreimbursed expenses, damages and penalties, including applicable interest.”

This differs from previous law. Before SB 1402, joint liability only applied to contracted work within the scope of the “usual course of the client employer’s business.” Now, retailers and various other business can be liable even if the work does not fall in the scope of the business’s “usual course.”

Businesses should review the list and exercise caution when contracting with companies on this list. Oh, and consult with an attorney to ensure you are aware of liability you currently hold.

Legislative Fix of AB 1701

Last year, the Legislature made general contractors liable for their subcontractors who fail to pay wages or benefits. The bill seemed to imply that direct contractors had additional obligations beyond the Labor Code for failure to pay wages or provide benefits.

AB 1565 clarifies that direct contractors are simply subject to the existing obligations and remedies. It also specifies that direct contractors are only liable for wages and benefits. These provisions went into effect immediately after it was signed into law.

For contracts put in place on or after January 1, 2019, contractors must specify what documents subcontractors must provide before they withhold payments.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Fall 2018 New Employment Laws – Part 2

New Employment Laws for 2018 (Part 2)

Welcome back to our New Employment Laws for 2018 wrapup and update. This post will focus primarily on hiring practices. This year, the Legislature clarifies hiring practices changes and access to sealed or expunged criminal records of potential hires.

Clarification of Last Year’s Salary History Ban

Last year, AB 168 banned California employers from asking for a prospective employee’s salary history as part of the hiring process. Applicants can volunteer past salary information, but employers’ cannot ask for it.  Businesses must provide a pay scale for the position upon request. Labor Code 432.3. AB 168 reaffirmed that “prior salary, by itself,” can’t “justify any disparity in compensation.”

This year, the Legislature passed AB 2282 to shed some light on permitted and prohibited inquiries. Significantly, AB 2282 provides that:

  • “Pay scale” is defined as “salary or hourly wage range.”
  • The term “applicant” only apply to external hires, not employees currently employed by the hiring business. This means that current employees do not have a right to see a pay scale.
  • External hires must have already had an initial interview to request a pay scale.
  • Employers are in the clear to ask an applicant about their salary expectations for the position in question.
  • Companies cannot pay workers of different race/ethnicity or gender differently unless the “entire wage differential” is based on a seniority system, merit, or education/training.

Employers should review their policies with everyone that participates in the hiring process. New employment laws make prior salary information off-limits.

Limitation on Viewing Certain Criminal Records

In most circumstances, employers can not view or ask applicants about sealed or expunged convictions of potential hires during the background check process. However, employers are legally barred from hiring people with certain past convictions for sensitive positions. For example, you cannot hire a bank robber as a bank teller. SB 1412 lays out when an employer can take into account sealed/expunged convictions. Employers can ask about or seek information about expunged convictions if the conviction would legally prohibit an applicant from holding the position.

What is and is not allowed in the hiring process can be confusing. Crossing legal lines can be extremely problematic for employers. It is always best to consult a lawyer to establish well-defined and legal hiring practices to avoid costly and time-consuming litigation. New employment laws are enacted every year, and it’s important to stay on top of things. You can read another article regarding background checks here.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Fall 2018 New Employment Laws – Part 1

New Employment Laws for 2018

It’s that time of year again: new employment laws for 2018. While everyone else in the state is bundling up and raking up the falling leaves, the Governor was busy signing bills. Over the next few weeks, we’ll be cutting through the legalese to explain the impact the legislative flurry has on employers and employees. This installment will focus on leaves of absence and employee benefits.

Paid Family Leave Expansion

SB 1123 added a new reason employees can collect state paid family leave benefits. Current law provides for up to 12 weeks of PFL for caring for sick family members, bonding with newborns, and adopting a child. Effective January 1st, 2021, Section 3301 of the Unemployment Insurance Code will allow workers to claim benefits for “a qualifying exigency related to the covered active duty or call to covered active duty” of a family member. There are important caveats. The family member must be a parent, child, or spouse.

“Qualifying exigency” covers a broad range of situations. Employees can claim benefits for time taken off to:

  • attend official military ceremonies,
  • arrange childcare during deployment,
  • make financial/legal arrangements for deployment,
  • spend time with their family member during rest or recuperation leave, and
  • other active-service related situations.

This new law doesn’t create a new right to take paid leave. These new provisions apply only to employees already covered under the FMLA.

Change in Lactation Accommodation Requirements

Due to a quirk in state law, employers used to be restricted from designating a “toilet stall” as a private lactation area. “Bathrooms” were fair game. Now Labor Code section 1031 clarifies employers must provide a location beside a bathroom for employees to lactate. This location must be private and near where an employee typically works. It must be permanent, unless “operational, financial, or space limitations” of the business make that impossible.

Here, temporary lactation locations can be designated, that must be “free from intrusion” while being used by employees. AB 1976 also provides an exception for businesses that would face an “undue hardship” due to “the size, nature, or structure of the employer’s business.” These employers may still designate bathrooms for lactation, just not toilet stalls specifically. California law requires employers to provide break time for lactation, and a civil penalty can be imposed for non-compliance.

We’ll provide more updates about new employment laws for 2018 in upcoming articles.

Provided by the Nuddleman Law Firm, P.C.

Written by J.T. Keane and edited by Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Dynamex and the Independent Contractor Landscape

A friend and colleague, Alan Foster, asked me to write an article for his newsletter regarding independent contractors under Dynamex. I’ve seen articles, presentations and blog posts about the dramatic shift in the law regarding independent contractor versus employee tests. I have a slightly different take. The following is my take on the independent contractor landscape.

Dynamex and the Independent Contractor

Many legal professionals and business advisors are writing about the California Supreme Court “dealing a blow” to independent contractors. Different articles claim Dymanex Operations West, Inc. v. Superior Courtmakes it more difficult” for employers to classify workers as independent contractors. Many are calling it a “game changer.” But is it really?

Dynamex, a package delivery company, hired delivery drivers to deliver packages. Although Dynamex initially hired the drivers as employees, in 2004 Dynamex changed the drivers to independent contractors. Dynamex believed it provided drivers sufficient freedom it could safely classify the workers as independent contractors. The delivery drivers filed a class action lawsuit seeking unpaid wages and expenses, claiming they were really employees.

The employees claimed that under Martinez v. Combs (2010) 49 Cal.4th 35, Dynamex was the employer. Dynamex argued that Martinez only applied in the joint-employer situation and that the common law test set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 should apply.

In Martinez, the court adopted a very broad definition of employer based on the IWC orders.

“[t]o employ . . . under the [wage order], has three alternative definitions. It means:

(a) to exercise control over the wages, hours, or working conditions, or

(b) to suffer or permit to work, or

(c) to engage, thereby creating a common law employment relationship.”

Borello and the Independent Contractor

In Borello, decided 21 years before Martinez, the court focused primarily on “whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired.” The court also looked at nine other factors:

(1) right to discharge at will, without cause;

(2) whether the one performing the services is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether in the locality the work is usually done under the direction of the principal or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

(6) the length of time for which the services are to be performed;

(7) method of payment, whether by the time or by the job;

(8) whether or not the work is part of the regular business of the principal; and

(9) whether or not the parties believe they are creating the relationship of employer-employee.

In a very lengthy (85 pages) opinion, the Dynamex confirmed that Martinez and Borello applied in the independent contractor arena. And the court adopted a new test to determine whether someone was “suffered or permitted” to work. This new test is being called the “ABC test.”

Under the ABC test, a worker is an employee unless the hiring entity establishes:

(A) 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 such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) 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.

Is This Really a New Test for the Independent Contractor?

Since this is a new test, that means this is a “game changer,” right? Not necessarily. Anyone who has gone through an EDD audit is familiar with the ABC test already. The Employment Development Department has a very useful, although not employer-friendly, test for determining whether someone is an independent contractor. The questions in the DE-38 contain the same factors that make up the ABC test.

Under the DE-38, if the employer answers “yes” to the first three questions, “it is a strong indication that the worker is an employee.” If the employer answers “no” to the next three questions, this “indicates that the individual is not in a business for himself or herself and would, therefore, normally be an employee.” Answering “yes” to the final seven questions on the DE-38 means there is a “greater the likelihood the worker is performing services as an employee.”

So, how does the ABC Test compare to the DE-38? This chart shows the ABC test elements line up directly with the DE-38 test:

ABC Test DE-38
(B) that the worker performs work that is outside the usual course of the hiring entity’s business 3. Is the work being performed part of your regular business?

 

(C) 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. Does the worker have a separately established business?
(A) 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 such work and in fact 5. Is the worker free to make business decisions which affect his or her ability to profit from the work?

One aspect of the ABC test arguably not in the DE-38 is that the hiring entity must establish each of the three factors in the ABC test. The DE-38 uses phrases such as “strong indication” and “normally,” allowing more leeway than the more definitive ABC test.

The ABC test is less a “new” independent contractor test, and more an application of an existing test that many employers ignored. I have been advising my clients against hiring workers as independent contractors unless the workers have their own established business and the workers are performing work not part of the company’s normal business. Dynamex confirms the conservative approach is the right approach, particularly in California.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

New Sexual Harassment Protection for Legislative Staff

AB403 Protects Legislative Staff from Sexual Harassment Retaliation

Employers cannot retaliate against employees for engaging in protected activity. This includes reporting or participating in an investigation regarding sexual harassment, health and safety issues, patient safety, and other violations of the law. Governor Brown signed AB403 extending similar protections to legislative employees. I suspect AB403 found so much support due to the numerous reports of inappropriate conduct in our legislature.

AB403 defines “Legislative employee” as “an individual, other than a Member of either house of the Legislature, who is, or has been, employed by either house of the Legislature. ‘Legislative employee’ includes volunteers, interns, fellows, and applicants.” Legislative employees are protected from retaliation when making a protected disclosure.

“Protected disclosure” means a “communication by a legislative employee that is made in good faith alleging that a Member of the Legislature or legislative employee engaged in, or will engage in, activity that may constitute a violation of any law, including sexual harassment, or of a legislative code of conduct.” This includes a complaint protected by California’s Fair Employment and Housing Act.

The protected disclosure can be made to a number of agencies or any “individual with authority over the legislative employee, or another legislative employee who has authority to investigate, discover, or correct the violation or noncompliance.”

So, an intern or volunteer can report concerns regarding inappropriate sexual harassment to his or her supervisor without fear of unlawful retaliation. The law is so important that it became effective when Governor Brown signed the bill on February 5, 2018.

AB403 has some unique features. Violators can be subject to $10,000 fine and imprisonment for up to a year. If the alleged victim brings a civil action and proves “by a preponderance of the evidence” t against a legislative employee,” the burden of proof then switches the allegedly offending party to demonstrate “by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the legislative employee had not made a protected disclosure.” A prevailing plaintiff can recover attorneys’ fees and punitive damages. Considering most claims against government entities and persons do not allow punitive damages, this last item is particularly significant.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Handbook Updates for 2018

California passed a number of new laws that take effect 2018. Here are a few employee handbook updates employers will need to make:

Employment Handbook Updates for 2018

Parental Leave Act

California’s New Parent Leave Act requires employers with 20 to 49 employees to provide unpaid, job-protected leave for purposes of bonding with a new child. This is similar to FMLA and CFRA, with some important differences. Employers may want to adjust their vacation policies to address the new leave act and Employers with 50 or more employees may need to adjust their FMLA/CFRA policies.

New IRS Mileage Rate

Employers must reimburse employees for all expenses incurred in the discharge of their duties. This includes mileage reimbursement. The simplest method is to pay the IRS mileage rate. January 1, 2018, the IRS mileage reimbursement rate increases to 54.5 cents. If you state a specific rate in your policies–rather than just referring to the IRS mileage rate–you’ll want to update your policy.

Lactation Accommodation

Now that lactation accommodations are part of the Fair Employment and Housing Act, and can constitute a type of gender discrimination, it is important to review your lactation accommodation policies. Employers may need to update policies to address differences between California and federal law.

Paid Family Leave

Paid Family Leave is available to some employees. Although not a “protected” leave of absence, employers must provide information regarding Paid Family Leave to all employees. A change to California law eliminates the seven-day waiting period before PFL benefits begin. This change should be noted in the handbook.

Hiring Practices

Two new laws change how employers interview and hire employees:

San Francisco Specific Changes

Three of the more notable changes to San Francisco’s laws will require handbook updates:

  • The City and County Paid Parental Leave Ordinance.
  • San Francisco Lactation Accommodation Ordinance
  • San Francisco Paid Sick Leave Ordinance has changed, allowing more flexibility for employers.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Happy Holidays and Predictions for 2018

Happy Holidays

Before I get into my employment law predictions for 2018, let me thank my friends, family, colleagues and clients. You’ve helped make 2017 so successful. I am so grateful and blessed to have so many wonderful people in my life. Practicing law gives me the opportunity to help others and change their lives for the better. I enjoy what I do, and I like helping my clients with their employment law issues.

Here are just a few of the highlights and milestones for me in 2017:

  • I, along with my co-counsel Patrick Kitchin, obtained a seven figure settlement on behalf of a class of hair stylists in the Bay Area.
  • I hiked the mountains in New Mexico at the Philmont Scout Ranch with my two sons and three other Boy Scouts.
  • I began bicycling and jogging, increasing my cardiovascular health so I can almost keep up with my three teenage children.
  • I celebrated 19 years of marriage to my beautiful wife.
  • I conducted several presentations regarding employment laws, with a specific emphasis on home care workers, including presentations to the Professional Fiduciary Association of California, the East Bay and the Golden Gate Enrolled Agents Associations, the California Society of CPAs and the Special Needs Symposium.

Thank you and may your holiday season be filled with warmth and love, and may you experience a prosperous 2018.

Rob’s Employment Law Predictions for 2018

A client asked about my 2018 employment law predictions.

There is a significant push toward more transparency in the workplace. Laws prohibiting employers from asking about prior salaries combined with protections for employees who discuss salaries with co-workers will make it more difficult for employers to justify pay differentials. I predict that more discussions about pay will result in more litigation regarding pay practices in 2018.

The media has recently focused on sexual harassment in Hollywood and politics. The increased media hopefully opens the door for more discussions about appropriate workplace conduct. I predict we will see an increase in sexual harassment claims in 2018. I also predict employers will take greater steps to ensure their workplace is free of unlawful harassment, including training managers and supervisors how to respond to complaints. Recent changes in the law regarding what must be included in mandatory sexual harassment prevention training will also increase the dialogue regarding treating persons with dignity and respect regardless of their gender or lifestyle.

I predict employers will struggle with proper hiring techniques. Beginning 2018, employers cannot ask about prior salaries and cannot ask about convictions until after the employer extends a conditional offer of employment [not true for all employers]. Many employers don’t know about the changes. Those employers may be targeted for individual or class actions for inappropriate questions during the hiring process.

I predict wage and hour lawsuits will continue to increase in 2018. We will see more class actions and PAGA claims. Now that PAGA actions are not subject to arbitration, means more plaintiffs attorneys will use PAGA claims to avoid arbitration. Additionally, recent cases expanded the scope of discovery in PAGA actions. Plaintiffs attorneys now have more tools to obtain information during litigation.

Those are my predictions for employment law related problems in 2018. We’ll have to wait and see whether my predictions come true.

If you have questions about employment laws, feel free to contact me in the New Year. I work with employees and employers to resolve workplace disputes.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.