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Independent Contractor Analysis Gets Modified…Again

Further Clarification of the Employee vs. Independent Contractor Question

The distinction between employees and independent contractors is imperative to workers and businesses. Employees enjoy many more protections and benefits than independent contractors and therefore place a bigger legal burden on employers. Last year, in Dynamex, the California Supreme Court made the legal gray area of worker classification less hazy, and a new case, Garcia v. Border Transportation Group, provides further clarity.

Review of the Dynamex “ABC Test”

We covered Dynamex last year, but its importance to workers and businesses warrants a review. The Supreme Court set out a three-part legal standard (the “ABC test”) for independent contractor status. Part A requires independent contractors to be free from control by the contracting business. Part B requires contractors to perform work that is not in the normal scope of the contracting business. Finally, part C requires contractors to have their own independent business. If these qualifications are not met, the worker must be treated as an employee under Industrial Welfare Commission wage orders.

The Impact of Garcia

The ABC test does not apply to all areas of employment law, however. In Garcia, the Court of Appeal carves out important exceptions to this standard. The Dynamex decision only applies to wage orders, not other statutes or regulations. Wage orders require employers to pay the minimum wage, allow certain meal and rest breaks, provide itemized wage statements to employees, and other basic employment requirements. Other laws, such as Workers’ Compensation law to non-wage order claims don’t fall under the Dynamex standard. These statutes typically rely on a standard set in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, which primarily relies on “whether the person to whom the service is rendered has the right to control the manner and means of accomplishing the result desired.”

Correct classification of workers can be make or break for both sides of employment relationships. Whenever a dispute arises, or when developing hiring practices, contact the Nuddleman Law Firm, P.C. to ensure compliance with the law.

Written by J.T. Keane for 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.

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.

New California Employment Laws for 2016

Lest you think the California Legislature and Governor Brown have been idling away their time in office, the following is a list of the new California Employment Laws for 2016 passed in our state.  Some will affect all employers, others just a few.  Be on the look out for more in depth analysis of the new laws in upcoming articles.

AB 202 by Assemblymember Lorena Gonzalez (D-San Diego) – Professional sports teams: cheerleaders: employee status.

AB 215 by Assemblymember Luis Alejo (D-Watsonville) – Local agency employment contracts: maximum cash settlement.

AB 219 by Assemblymember Tom F. Daly (D-Anaheim) – Public works: concrete delivery.

AB 229 by Assemblymember Ling-Ling Chang (R-Diamond Bar) – State employees: travel reimbursement.

AB 285 by Assemblymember James M. Gallagher (R-Nicolaus) – Professions and vocations: registration.

AB 304 by Assemblymember Lorena Gonzalez (D-San Diego) (7/13/15) – Sick Leave: Accrual and Limitations; Clarification.

AB 359 by Assemblymember Lorena Gonzalez (D-San Diego) – Grocery workers. A signing message can be found here.

AB 375 by Assemblymember Nora Campos (D-San Jose) – School employees: sick leave: paternity and maternity leave.

AB 506 by Assemblymember Brian Maienschein (R-San Diego) – Limited liability companies.

AB 546 by Assemblymember Lorena Gonzalez (D-San Diego) – Peace officers: basic training requirements.

AB 599 by Assemblymember Susan Bonilla (D-Concord) – Clinical laboratories: cytotechnologists.

AB 621 by Assemblymember Roger Hernández (D-West Covina) – Drayage truck operators: Motor Carrier Employer Amnesty Program.

AB 622 by Assemblymember Roger Hernández (D-West Covina) – Employment: E-Verify system: unlawful business practices.

SB 623 by Senator Ricardo Lara (D-Bell Gardens) – Workers’ compensation: benefits

AB 630 by Assemblymember Eric F. Linder (R-Corona) – Public officers and employees: oath of office.

AB 705 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Psychologists: licensure exemption.

AB 830 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Civil actions: gender violence.

AB 852 by Assemblymember Autumn R. Burke (D-Inglewood) – Public works: prevailing wages.

AB 868 by Assemblymember Jay P. Obernolte (R-Big Bear Lake) – Public Employees’ Retirement System: contracting agencies: transfer of membership.

AB 897 by Assemblymember Lorena Gonzalez (D-San Diego) – Grocery workers.

AB 963 by Assemblymember Susan Bonilla (D-Concord) – Teachers’ Retirement Law.

AB 970 by Assemblymember Adrin Nazarian (D-Sherman Oaks) – Labor Commissioner: enforcement of employee claims.

AB 987 by Assemblymember Marc B. Levine (D-San Rafael) – Employment discrimination: unlawful employment practices.

AB 991 by the Committee on Public Employees, Retirement, and Social Security – State teachers’ retirement.

AB 1093 by Assemblymember Eduardo Garcia (D-Coachella) – Public safety: supervised population workforce training: grant program.

AB 1168 by Assemblymember Rudy Salas Jr. (D-Bakersfield) – Peace officers: basic training requirements.

AB 1245 by Assemblymember Ken Cooley (D-Rancho Cordova) – Unemployment insurance: electronic reporting and funds transfers.

AB 1267 by Assemblymember Richard H. Bloom (D-Santa Monica) – Lawsuits, liens, and other encumbrances against public officials or public employees.

AB 1270 by Assemblymember Eduardo Garcia (D-Coachella) – California Workforce Innovation and Opportunity Act.

AB 1291 by Assemblymember Das G. Williams (D-Santa Barbara) – The County Employees Retirement Law of 1937.

AB 1308 by Assemblymember Henry T. Perea (D-Fresno) – Apprenticeship programs: approval.

AB 1339 by Assemblymember Miguel Santiago (D-Los Angeles) – School district employees: merit system: appointments.

AB 1422 by Assemblymember Jim Cooper (D-Elk Grove) – Transportation network companies.

AB 1506 by Assemblymember Roger Hernández (D-West Covina) – Labor Code Private Attorneys General Act of 2004.

AB 1509 by Assemblymember Roger Hernández (D-West Covina) – Employer liability.

AB 1513 by Assemblymember Das G. Williams (D-Santa Barbara) – Employment: workers’ compensation and piece-rate compensation.

AB 1514 by the Committee on Insurance – Employment Development Department: training benefits: reports.

SB 99 by the Committee on Budget and Fiscal Review – State public employment.

SB 216 by Senator Richard Pan (D-Sacramento) – The Public Employees’ Retirement System.

SB 221 by Senator Hannah-Beth Jackson (D-Santa Barbara) – State public employees: sick leave: veterans with service-related disabilities.

SB 327 by Senator Ed Hernandez (D-Azusa) – Industrial Welfare Commission: wage orders: meal periods.

SB 342 by Senator Hannah-Beth Jackson (D-Santa Barbara) – California Workforce Investment Board: responsibilities.

SB 358 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Conditions of employment: gender wage differential.  Press conference statement can be found here.

SB 354 by Senator Bob Huff (R-San Dimas) – California Public Employees’ Pension Reform Act of 2013: joint powers authority: employees.

SB 386 by Senator Ben Allen (D-Santa Monica) – Unlawful business practices.

SB 432 by Senator Tony Mendoza (D-Artesia) – Public works: aliens.

SB 501 by Senator Bob Wieckowski (D-Fremont) – Wage garnishment restrictions.

SB 546 by Senator Mark Leno (D-San Francisco) – Health care coverage: rate review.

SB 560 by Senator William W. Monning (D-Carmel) – Licensing boards: unemployment insurance.

SB 579 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Employees: time off.

SB 588 by Senator Kevin de León (D-Los Angeles) – Employment: nonpayment of wages: Labor Commissioner: judgment enforcement.

SB 644 by Senator Loni Hancock (D-Berkeley) Limited Examination and Appointment Program: persons with developmental disabilities.

SB 667 by Senator Hannah-Beth Jackson (D-Santa Barbara) Disability insurance: eligibility: waiting period.

 

Provided by 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, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and 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.