Kim Rushton, an employee of the City of Los Angeles (City of LA), struck and killed a pedestrian, Ralph Bingener, while commuting to work. Mr. Rushton, a 68-year old man with neurological conditions, worked as a chemist in a water quality lab checking water for semi-volatile organic compounds. He did not use his car for his employment. All of Mr. Rushton’s work was performed at the lab and he rarely left the plant for work-related travel. Continue reading “Employer Not Liable for an Accident Caused by its Employee”
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Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes
As an employee, there may be times when you need an accommodation in the workplace due to a disability. Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process. How specific do the doctor’s notes need to be? A recently published case provides some insight into this question.
Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012. In 2013, he requested to work in a quiet place that allowed him to focus and concentrate. Continue reading “Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes”
Read more...Independent Contractor vs. Employee: AB 5 Makes Dynamex California Law
On September 18, 2019, Governor Gavin Newsom signed California Assembly Bill 5 (AB 5) into law –expanding the California Supreme Court’s decision in the Dynamex Operations West, Inc. v. Superior Court (Dynamex) and codifying the “ABC test” for determining if a worker may be classified as an independent contractor, instead of an employee.
In Dynamex, the California Supreme Court revisited whether the factors from its prior decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (Borello) were the best way to determine employment for purposes of claims under the California Wage Orders. The Court concluded that Borello was not the proper test, ruling that the ABC test should be used to determine whether a worker should be classified as an employee or an independent contractor.
Under the ABC test, a worker is presumed to be an employee unless the company proves that the worker:
(A) Is free from the control and direction of the company in performing work, both practically and in the contractual agreement between the parties; and
(B) Performs work that is outside the usual course of the company’s business; and
(C) Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the company.
To satisfy the ABC test and legally classify a worker as an independent contractor, the employer must prove that a worker is free from the company’s control, performs work outside the company’s primary business, and is regularly engaged in the trade the worker is hired for, independent of work for the employer. All three parts of the ABC test must be satisfied before a worker can properly be considered an independent contractor.
Continue reading “Independent Contractor vs. Employee: AB 5 Makes Dynamex California Law”
Read more...San Francisco State University Professor Prevails on Retaliation Claim
San Francisco State University (SFSU) hired Rashmi Gupta in 2006 as a tenure track assistant professor in the School of Social Work. Generally, tenure track professors work for a six year term. After that, SFSU decides whether or not to promote a tenure track professor to the position of associate professor and award lifetime tenure.
Dr. Gupta initially faced some hurdles when she began teaching at SFSU. Her student evaluations were lower than average; however, Dr. Gupta was praised for her efforts in research, scholarship and publication. By 2009, Dr. Gupta had overcome her initial challenges and was receiving positive reviews from students and peer evaluators.
In 2009, Dr. Gupta and several other women of color in the School of Social Work lodged a complaint with the provost to express their concerns about the abuse of power, bullying, micromanagement and a hostile work environment at SFSU. At a follow up meeting, the women expressed concern about the Director of the School of Social Work, and more generally, about discrimination against people of color on campus.
Less than two months after Dr. Gupta lodged her complaints, she received a negative performance review. Many of the criticisms in the review were inaccurate. Dr. Gupta then emailed a colleague complaining that SFSU was hostile toward women of color, and named two individuals for creating the hostile work environment, Don Taylor and Rita Takahashi. At a meeting in March 2010, Dr. Taylor told Dr. Gupta that he knew about the emails, and threatened “to get even with [her].” Continue reading “San Francisco State University Professor Prevails on Retaliation Claim”
Read more...PAGA, Individual Claims, Public Entities, and Section 1102.5 Whistleblower Claims
On September 8, 2019, the Court of Appeal for the Second Appellate District issued an important decision in the case of Hawkins v. City of Los Angeles (Case Nos. B279719, B282416). That decision casts light on the following questions: (1) Whether PAGA claims can be brought on behalf of an individual, as opposed to a group of aggrieved employees; (2) Whether PAGA claims can be brought against public entities; and (3) Whether attorneys’ fees are recoverable under Labor Code section 1102.5.
Continue reading “PAGA, Individual Claims, Public Entities, and Section 1102.5 Whistleblower Claims”
Read more...Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?
A recent decision from the Court of Appeal for the Second Appellate District in the case of Naranjo v. Spectrum Security Services, Inc. (September 26, 2019) Case No. B256232 addresses several unresolved questions pertaining to meal and rest periods in California.
First, the Court upheld the trial court’s ruling that Spectrum had not met the requirements for an on-duty meal period because, during part of the class period, it did not have a written agreement in which the employees were advised that the agreement could be revoked. In reaching this conclusion the Court rejected Spectrum’s argument that it had substantially complied with the on-duty meal period requirements. Continue reading “Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?”
Read more...Employees Beware: Arbitration Agreements Can Sometimes be Applied Retroactively
Increasingly, employers are asking employees to sign arbitration agreements. If the arbitration agreement is valid and enforceable, the employee generally waives the right to sue the employer in court and have the case tried before a jury of his or her peers. Employers typically favor arbitration for a variety of reasons, including privacy, control over arbitrator selection, limited rights to appeal, and the ability to have employees waive the right to bring class action lawsuits.
What happens if an employee has claims against an employer, files a lawsuit and then signs an arbitration agreement? Can that employee still be compelled to arbitrate his or her claims? The Court of Appeal for the Fourth Appellate District recently addressed this issue in Franco v. Greystone Ridge Condominium, et al. The Court of Appeal held that an arbitration agreement that is signed after the employee initiates his lawsuit does not preclude compelling those claims to arbitration. (Franco v. Greystone Ridge Condominium, et al., No. G056559, filed Aug. 14, 2019, certified for publication on Aug. 27, 2019). Continue reading “Employees Beware: Arbitration Agreements Can Sometimes be Applied Retroactively”
Read more...My Company Owes Me Wages. Can I Sue My Boss Individually For Them?
In California, employees can sue certain individuals for money that their employers owe them. But a recent decision by the California Supreme Court limits the avenues for that type of recovery.
First, the good news: California Labor Code section 558.1 allows “person[s] acting on behalf of an employer” to be held liable as the employer for violating any provision regulating minimum wages or hours and days of work in any of the Industrial Welfare Commission wage orders. This section also applies to the following Labor Code sections: 203 (failure to pay wages due at the time of termination); 226 (failure to provide proper wage statements); 226.7 (failure to provide meal and rest breaks); 1193.6 (failure to pay minimum wage); 1194 (failure to pay minimum wage) and 2802 (failure to reimburse for business expenses). Continue reading “My Company Owes Me Wages. Can I Sue My Boss Individually For Them?”
Read more...Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act
Plaintiff Jose Valtierra, a facility maintenance technician, sued his employer Medtronic, Inc. alleging that he was terminated on account of his disability, morbid obesity, in violation of the Americans with Disabilities Act (ADA). Mr. Valtierra worked for Medtronic, Inc. for about ten years. By the last year of his employment, he had gained 70 pounds, taken time off due to joint pain, and struggled to walk. Mr. Valtierra’s supervisor, noticing that the employee was struggling to walk, allegedly became concerned about whether Mr. Valtierra was able to complete his work assignments. When the supervisor checked the computer system, he discovered that Mr. Valtierra had falsified work records, so Medtronic, Inc. terminated him.
The district court looked at whether Mr. Valtierra suffered from a disability for purposes of the ADA and whether Medtronic’s termination was unlawful. Continue reading “Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act”
Read more...Which Wage and Hour Laws Apply to California Public Employees?
Wage and hour laws require that employers pay minimum wages and overtime wages, provide meal and rest breaks, and pay all wages immediately upon termination of employment, among many other things. Public employees often wonder whether they are covered by these laws, or whether such basic protections do not apply to them. The answer in California, in true lawyerly fashion, is, “it depends.” This post will attempt to sort out which wage and hour laws apply to public employees and which, unfortunately, do not. Continue reading “Which Wage and Hour Laws Apply to California Public Employees?”