Orange County Employment Lawyers Blog

Do State Labor Laws Apply to California Public Employers?

January 8, 2020 | by Nassiri Law

Not all state or federal labor laws can be applied equally to all workers. For example, you may know that the U.S. Fair Labor Standards Act requires most employers to pay overtime for any hours worked in excess of 8 in a given day. But if you work in the public sector, the rules may be a bit different (or a lot different, depending on your job title).

Employees for public agencies such as school districts, fire departments and public works agencies are not entitled to daily overtime by statute.

Still, there are some technicalities, so it’s always best to talk to a Los Angeles employment attorney if you aren’t sure. In some instances, public agency employers may not have violated state or federal law with regard to wage and hour requirements, but there could be violations of the collective bargaining agreement, and a claim could be filed under breach of contract laws. Continue Reading ›

Ninth Circuit Affirms $55 Million Employment Lawsuit Verdict for Wal-Mart Truckers

January 6, 2020 | by Nassiri Law

The U.S. Court of Appeals for the Ninth Circuit, which sets precedent in California, affirmed a $54.6 million jury verdict in favor of Wal-Mart truck drivers for violation of California labor law. The retail giant challenged the earlier decision on numerous grounds, including improper application of the Federal Aviation Administration Authorization Act of 1994, the certification of the class and lack of jurisdiction. The federal appellate court rejected all of these in Ridgeway v. Wal-Mart, Inc., in effect reaffirming the state’s definition of what qualifies as compensable work.

State labor laws stipulate that “hours worked” are to include all time a worker is subject to the company’s control and all time he/she is “suffered or permitted to work” – regardless of whether they actually do work. The drivers asserted the company didn’t pay them for time spent under the company’s control, such as during inspections, layovers and rest breaks. They sought damages, restitution and statutory penalties.

Prior to trial, plaintiffs were granted partial summary judgment on the minimum wage liability claims. Specifically, Wal-Mart wasn’t paying them for all their job duties. The company mandated that drivers take breaks without pay and controlled them during 10-hour layover time. By state law, they should have been entitled to receive minimum wage during these stretches. The trial court agreed that the company’s pay policy, if applied as written, would mean the drivers should be getting paid minimum wage during the times they were subject to their employer’s control. The question of whether the company actually violated the law, however, still had to go before a jury.

Jurors returned a verdict finding that in 7 of 11 disputed, non-paid tasks, the company violated state minimum wage laws. These tasks included layovers, rest breaks, pre-trip inspections and post-trip inspections. Continue Reading ›

Uber and Postmates Sue California, Declaring AB5 Unconstitutional

January 5, 2020 | by Nassiri Law

Two major corporations are suing the State of California alleging that a labor rights law that went into effect Jan. 1, 2020 is unconstitutional. Filed in Los Angeles federal court on Dec. 30, 2019, the lawsuit by Uber Technologies and Postmates are striking preemptively against Assembly Bill 5, which was intended to extend greater employment protections to those who work for companies like these and others within the so-called “gig economy.” But the plaintiffs say companies that rely on so-called “gig workers” were unfairly targeted while those in other industries were given more favorable treatment under the law with regard to how they classify workers. In turn, this has threatened the workers’ ability to be flexible.

As our Los Angeles employee misclassification attorneys can explain, AB5 has been the subject of intense and bitter dispute, with drivers, food couriers and other workers caught up in the middle. These workers derive their income by accepting “jobs” through these companies’ smartphone and computer apps. Plaintiffs allege the law arbitrarily exempted various types of workers, including commercial fisherman, grant writers, travel agents, direct salespeople and construction truck drivers.

Written as a means of codifying the California Supreme Court’s 2018 ruling in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (i.e., “the Dynamex ruling). Continue Reading ›

Workers Now Have Three Years to File California Employment Lawsuit

January 3, 2020 | by Nassiri Law

A new law enacted last year now in effect gives California workers three years in which to file a lawsuit under California’s Fair Employment and Housing Act (FEHA) instead of just one.

Previously, an employee who alleged discrimination, harassment, retaliation or another claim under FEHA would have one year to file a file an administrative complaint, the prerequisite to filing a civil lawsuit. Aggrieved workers could either requires the state’s Department of Fair Housing and Employment (DFEH) issue an immediate Right to Sue Notice or else choose for the state to launch an investigation of the claim. As our Orange County employment attorneys can explain, such an investigation can take a year or more if those involved opt to participate in the state’s mediation program. The DFEH can then issue a Right to Sue Notice after the investigation is concluded, and employees had one year from that date to actually file a lawsuit.

AB9, also referred to as the Stop Harassment and Reporting Extension (SHARE) Act, extends the one-year deadline to filing a DFEH complaint to three years. The worker still has just one year from the date of receiving the DFEH’s Right to Sue Notice to actually file the lawsuit. That means it could be four years or more before a potential California employment lawsuit is filed. The new statue of limitations is six times longer than the federal standard. Continue Reading ›

Legal Challenges to California’s Gig Worker Law Are Likely to Abound in 2020

December 30, 2019 | by Nassiri Law

The state’s new worker classification law takes effect on Jan. 1st. Those behind the AB5 legislative effort know it was an uphill battle – but it appears the fight isn’t over yet. Court cases challenging the law are piling up, some companies are saying they simply won’t cooperate (likely to lead to more litigation) and there is a looming multimillion-dollar ballot initiative gearing up for next November.

Our Los Angeles employee misclassification attorneys will be watching these developments closely to see how these disputes unfold.

AB5 is going to make it more difficult for companies to label their workers as independent contractors rather than employees. Legislators backing the measure pointed to mounting evidence that companies are improperly classifying workers as independent contractors to avoid the added expenses of things like workers’ compensation benefits, health insurance, minimum wage, overtime, unemployment insurance, the right to unionize and other benefits to which employees (but not independent contractors) are entitled.

Employer preparations for AB5 should already be well underway. If you operate a small business and still aren’t sure about whether your operations fall under the umbrella of AB5 or if so, how to restructure your employment model, it’s imperative that you contact a longtime employment law firm to help protect your legal interests. Some companies have been able to find creative workarounds that satisfy employees as well as their bottom line. This can include using staffing agencies, having contractors form an LLC (to qualify for a business-to-business exemption) and other strategies. Continue Reading ›

California Home Day Care Workers’ Right to Unionize Solidified in 2019

December 28, 2019 | by Nassiri Law

2019 has been a banner year for worker rights in California. One important development that might have gotten lost in the shuffle amid all the rest was the passage of AB738 in September. Effective Jan. 1, 2020, home daycare providers will have the right to form, join and participate in unions. Our Los Angeles employment attorneys know this is a right home-based child care providers have been pursuing for almost two decades. In the lead up to Governor Newsom’s signing the bill, there had been five gubernatorial vetoes of similar bills.

As KCRW.com reports, most of the workers in the industry are women of color who own and operate their own businesses. Yet some lawmakers in the past had taken to routinely calling them “babysitters.” These workers comprise roughly half of the state’s 200,000 early childhood education workers

One of the main reasons they wanted to unionize was to gather bargaining power to finally address subsidized payments – both the amount and method. Reimbursement for individual childcare workers is low to start. When the government steps in to subsidize daycare payments for low-income families, it’s below market rate. On top of that, the way these workers are paid is complex and ultimately problematic because it often results in some workers not being paid for months at a time. Earning enough to survive – let alone run a business, pay taxes, etc. – can be very difficult.

The Economic Policy Institute reports that most of the more than 27,000 licensed family child care providers in California barely earn minimum wage. Unions will allow these workers to better negotiate compensation with the government, as well as other entities like health insurance companies, liability insurance companies, etc. Continue Reading ›

Effect of Tighter Independent Contractor Rules on California’s Small Businesses

December 26, 2019 | by Nassiri Law

A new law intended to make it harder for companies to misclassify workers as independent contractors rather than employees has been the source of much controversy and litigation – even though it doesn’t take place for another week.

Los Angeles employment lawyers know that while AB5 has a fair amount of detractors among mega-corporations like Uber (largely the kind of worker relationship model the law intended to target), small businesses that use freelance independent contractors are likely to be impacted too.

The designation of independent contractor has become a store point for lawmakers and labor advocates who argue many of these workers are doing jobs that should count them as employees, entitling them to certain valuable benefits like minimum wages, overtime, sick pay, workers’ compensation insurance if they’re hurt on the job or unemployment insurance if they’re suddenly laid off. Freedom from the responsibility of having to pay these expenses has proven an attractive prospect for many employers. But their designation isn’t the last say. It can be challenged – and increasingly is – since last year’s Dynamex decision by the California Supreme Court and now AB5, both of which strengthen worker protections and make it more difficult for companies to claim workers are independent contractors as opposed to employees. Continue Reading ›

SoCal Garment Industry Coming Under Fire for Wage Theft

December 24, 2019 | by Nassiri Law

Southern California’s garment industry has in the past been accused of being one of the biggest wage theft offenders in the state. It’s been so bad in recent years that the California Labor Commissioner’s Office released a brochure specific to the problem for industry workers, noting that garment workers who aren’t paid for their work are entitled to file claims against all “guarantors” of wages, which includes the contractor that hired them as well as the manufacturers and in some cases the retailers.

The latest among these is a company called Fashion Nova. According to The New York Times, the L.A.-based online retailer with celebrity and influencer endorsements has found its niche of producing cheap clothing that looks much more expensive. It’s tailored to the Instagram crowd looking to keep their digs fresh every few weeks. Blowing a month or two’s expendable income on a pair of jeans isn’t an option for these consumers, explaining Fashion Nova’s rise in popularity.

But the U.S. Labor Department reports it’s the garment industry workers who ultimately pay the price. The DOL has found that the company is able to mass produce cheap clothing in the U.S. because the people actually sewing the garments are paid unlawfully low wages. Continue Reading ›

Los Angeles Employer Accused of California WARN Act Violations After Dismissing Dozens of Workers

December 22, 2019 | by Nassiri Law

Roughly 70 workers at a private, non-profit museum in Los Angeles is facing a possible class action lawsuit for allegedly violating California’s WARN Act, which compels employers to offer at least a 60-day advance warning both to employees and local government agencies if there will be a plant closure, major relocation or mass layoff. As our Los Angeles labor lawyers can explain, the Worker Adjustment and Retraining Notification Act, found in California Labor Code 1400-1408LC, entitles workers denied this notification to receive back pay and benefits for the period of violation (the period by which their advance notice fell short of those 60 days).

While most of the Golden State’s wrongful termination laws pertain to the rights of individual employees, the WARN Act protects workers fired/laid off in connection with a mass layoff (50 or more workers laid off within 30 days of each other), a company closure or relocation of substantial business activities to a physical location more than 100 miles away. The law only applies to companies that have employed 75 or more workers in the year preceding, and companies are exempted if the closure/layoffs/relocation is due to some act of war or physical calamity. It’s similar to the U.S. WARN Act, 29 USC;2104(a), but extends greater worker protections.

This kind of advance notice is key for workers and their families, who will need time to transition and adjust to employment loss and seek alternative income sources and/or job training while still providing for their family in the immediate future. The reason local government is included in this notification is that the California Employment Development Department has an established Rapid Response Team to aid both employers and employees in the midst of a mass layoff or company closing. They offer information about dislocated worker services available, unemployment insurance options, income support and assistance with job training and job searches. Continue Reading ›

California “Trimmigrants” Sue for Violations of U.S. Fair Labor Standards Act

December 20, 2019 | by Nassiri Law

A proposed class action lawsuit by so-called “trimmigrants” against a California cannabis company alleges that workers were compelled to work extended hours in difficult conditions without meal breaks, overtime pay or an accurate accounting of their wages.

The workers, whose duties included growing, harvesting, bucking and hanging marijuana plants to dry before placing them in large freezers for shipment, were largely young immigrants, often undocumented. This, they say, was used by their employers to exploit them.

The 11-count complaint against the marijuana farming company asserts the company:

Compelled workers to toil 7-days-a-week for 12 hours daily;
Refused to provide rest or meal breaks, as required by law;
Declined to reimburse employees for work-related expenses such as travel and meals;
Provided workers with a flat $15-and-hour rate of compensation, no matter how many hours they worked;
Failed to keep reliable, accurate records of worker hours, in violation of FLSA’s mandates on proper record-keeping.