California Supreme Court Rules Independent Worker Test Ruling Retroactive

On January 14, 2021, the California Supreme Court ruled the ABC test retroactive. The test is used to determine worker classification (independent contractor or employee) under the AB 5 law. The ABC test was originally clarified in the 2018 Dynamex ruling. 

Clarification of the ABC Test in the 2018 Dynamex Ruling: 

In 2018, the ABC test (under AB 5) was clarified. To be classified as an independent contractor, workers must fulfill three standards: 

• free from the hiring entity’s control and direction of their work performance

• complete work that is not typical in the business

• have an independently established job done under the work done for the business

Workers who do not meet all three of the above standards (A, B, and C) should be classified as employees, making them eligible for benefits and certain protections under employment law not available to independent contractors. 

The ABC Test Received a Blow from Proposition 22: 

In 2020, the ABC test came under fire. First, AB 5 was weakened when many businesses covered under the law qualified as “exempt.” The second blow came in November 2020 when California voters passed Proposition 22 leaving all rideshare companies exempt from AB 5. Since the proposition passed (in a landslide), many groups have actively been attempting to overturn the proposition in court. 

The Controversy Over the ABC Test Continued in the California Supreme Court: 

Despite worker classification being an undeniably major issue, the controversy over the ABC test continued on to the California Supreme Court. Jan-Pro Franchising International workers brought their case to the California Supreme Court, where the court found in the workers’ favor despite the weakening of AB 5 following the passage of Proposition 22. Workers can continue filing suit against companies in violation of the ABC Test retroactively through 2018. Companies remain liable for any AB 5 violations from 2018 through the present. Chief Justice Tani Cantil-Sakauye argued that there was no compelling justification to deny workers the benefit set forth by the Dynamex case. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Naranjo v. Spectrum Security Services: One of 2021’s Key California Employment Law Cases

California courts didn’t see a lot of activity in 2020, but that seems to be changing in 2021. The California Supreme Court has several pending cases that could make waves throughout the state, including Naranjo v. Spectrum Security Services. 

Naranjo v. Spectrum Security Services: Scheduled to Appear before California Supreme Court in 2021

Case Info: Naranjo v. Spectrum Security Services, S258966. (B256232; 40

Cal.App.5th 444; Los Angeles County Superior Court; BC372146). 

In 2021, Naranjo v. Spectrum Security Services is scheduled to appear before the California Supreme Court. The cases present two different issues. Does the violation of Labor Code 226.7 give rise to employment law claims under Labor Code sections 203 and 226 if the employer doesn’t include premium wages in the employee’s wage statements, but the wage statement does include the wages the employee earned for meal breaks? What prejudgment interest rate applies to unpaid premium wages owed due to Section 226.7? 

The Plaintiff, Naranjo, Claims Spectrum Security Services Violated California Labor Law: 

In Naranjo v. Spectrum Security Services, a class of security guards allege meal break violations and seek premium wages, as well as penalties for waiting times, and inaccurate wage statements, as well as attorney’s fees. When the Court of Appeals considered the case, they found that unpaid premium wages for meal periods violations do not entitle employees to penalties for inaccurate pay stubs or waiting time.

What Question Does the California Supreme Court Need to Decide? 

When the case appears before the California Supreme Court in 2021, the court will be expected to resolve a long-standing debate on recoverability of waiting time penalties for meal break and rest period violations. 

The California Supreme Court’s Decision on Naranjo v. Spectrum Security Services: 

If the California Supreme Court disagrees with the findings of the lower courts, potential penalties for California meal break and rest period violations would increase since violations could be compounded by any alleged pay stub penalties or any waiting time penalties. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Key 2021 California Employment Law Case: Donohue v. AMN Services, LLC

Throughout 2020, the California courts were fairly quiet. However, there are a few significant employment law cases scheduled to appear before the California Supreme Court in 2021. 

Donohue v. AMN Services, LLC: Scheduled to Appear before California Supreme Court in 2021

Case Info: #19-31 Donohue v. AMN Services, LLC, S253677. (D071865; 29 Cal.App.5th 1968; San Diego County Superior Court; 37-2014-00012605-CU-OE-CTL.) 

In 2021, Donohue v. AMN Services, LLC will appear before the California Supreme Court. The case addresses the question of whether employers can use overtime pay practices and policies to round employees’ time to shorten or delay meal periods?

The Plaintiff, Donohue, Claims AMN Violated California Labor Law: 

According to the lawsuit, AMN Services (AMN) used a computer-based system. According to the plaintiff, employees clicked on an icon to open the program each day so they could clock in and out for the start of their shift, their meal periods, and the end of their shift. According to the suit, the employee’s on the clock time (recorded in 10 minute increments) was rounded to the nearest hundredth. The Plaintiff claims there were no predetermined meal and rest  breaks, but that there was a written AMN policy that workers were to take their meal and rest breaks as mandated under California law. The plaintiff claims that AMN’s timekeeping program had a drop-down question allowing employees to indicate why they did not record a mandatory meal period, and that if they indicated they voluntarily chose not to take their 30 minute meal period, no penalty payment was provided. 

Did AMN Violate Labor Law? 

When the trial court considered the issue presented in Donohue v. AMN Services, LLC, they found no evidence of a uniform policy to deny employee meal periods. In the original complaint, the Plaintiff did not claim that AMN’s rounding practice was a labor law violation resulting in denial of employee meal periods. On appeal, the Plaintiff argued that the rounding of employee hours should not be applied to meal period time punches. The Court of Appeals argued that the California standard based on past court decisions about rounding does apply to meal periods, so the court would only need to consider how frequently the company’s rounding policy resulted in rounding up and down, rather than the number of meal period violations assessed (or circumvented). 

The California Supreme Court’s Decision on Donohue v. AMN Services, LLC

When Donohue v. AMN Services, LLC comes before the California Supreme Court in 2021, their decision could have a significant impact on related cases throughout the state. If the court agrees with the Court of Appeals the California Supreme Court decision would lend further support to the argument that rounding policies are typically acceptable for California employers. The California Supreme Court’s decision, regardless of which argument they support, will provide additional guidance on how California employers should implement any timekeeping rounding policies (including rounding policies for employee meal periods and breaks). 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Miso Japanese Restaurant Faces Numerous Labor Law Violation Allegations Amid Bankruptcy Case

The operator of Miso Japanese Restaurant faces numerous California Labor Law violations. Amidst the allegations, the company filed bankruptcy. The company behind the popular Japanese restaurant is G Wealth 88 Inc. The company filed Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Eastern District of California. 

Plaintiff Seeks Compensatory and Punitive Damages: 

Miso Japanese’s reorganization bankruptcy lists a number of liabilities. At least one of the creditors is the SBA (Small Business Administration) with debt associated with pandemic relief for small businesses. Amid the bankruptcy, G Wealth 88 faces an entirely separate employment law related lawsuit filed in July 2020 in Sacramento County Superior Court. Roger Lee, the plaintiff in the case, seeks compensatory and punitive damages citing numerous allegations of California labor code. 

Plaintiff, Former Owner of Miso, Sold the Business in Late 2015 / Early 2016:

According to the lawsuit, the plaintiff is the former owner of Miso Japanese. Roger Lee allegedly sold the company to Wing Size Fok and G Wealth 88 in 2015/2016. According to the lawsuit, Lee continued to manage the business on behalf of the  new owner during the sale to allow time for them to transition to living in the USA. 

Allegations Included in the Miso Japanese Employment Law Suit: 

The lawsuit lists numerous alleged labor law violations including misclassifying Lee as an exempt employee, failing to provide mandatory sick leave (required by California labor law), failing to pay overtime in accordance with California labor law, and making unauthorized changes, and deductions to Lee’s salary. The lawsuit also claims that the Plaintiff was required to work without mandatory meal periods and rest breaks in violation of California law. The Defendant disputes the allegations and G Wealth 88’s bankruptcy attorney has petitioned for an automatic stay on the employment lawsuit based on the Chapter 11 bankruptcy. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Unemployed Workers Flock to Gig Jobs During Covid-19 Pandemic

As more furloughed California workers turn to gig jobs to generate income during the Covid-19 pandemic, experts worry that they aren’t aware of the dangers they face. 

Hundreds of Thousands of Gig Jobs Become Available During Pandemic:

With workers in many industries struggling to find even minimal part-time work due to the Covid-19 pandemic, more than 38 million people have filed for unemployment nationwide in the last few months. At the same time, hundreds of thousands of gig jobs are opening up due to changes in how consumers behave during stay home orders and shelter in place orders. Amazon, DoorDash, Instacart, and Shipt all experienced significant increases in usage that resulted in a hiring frenzy.   

Furloughed Workers Rush Toward Gig Jobs During Covid-19 Pandemic: 

Many workers who have been laid off, furloughed, or can’t work from home are rushing toward the jobs available in the gig industry. The promise of flexible hours and an immediate, flexible income draws many to jobs that have been facing significant kickback due to alleged employment law violations. Instacart was founded in 2012, but in the last two months, they have doubled their workforce. Target’s Shipt delivery services doubled its fleet size in the last two months (after six years in business). 

What If Gig Jobs Stick Around After the Pandemic? 

If consumer demand for home delivery stays strong after the pandemic, the significant influx of new gig workers could become the new norm. More American workers could face the same inequities that were exposed by the virus (lack of employee rights affording workers sick leave, health care, etc.) Gig work offers few worker protections (even during good times), but the coronavirus increases the stakes. Workers are classified as independent contractors, allowing on-demand companies to shift much of the risk of the services they provide to their workforce. Workers provide their own vehicles, their own gas, take-home pay is volatile, and there is no minimum wage or overtime pay. 

If you have questions about California labor law violations or how employment law applies to California’s gig economy, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Employers Forcing Staff Back to Work During the Coronavirus Outbreak

Many California workers are asking the same questions right now, can your employer force you to return to work during the coronavirus outbreak? Some employees refuse to return to the workplace because they do not want to risk spreading the novel coronavirus. 

California-based Hairstylist Who Refuses to Return to Work Amid Outbreak:

Michelle Sylvester is a California hairstylist who says that a significant portion of her clients are older. While the salon where she works is still open for business, she is not returning to work until health agencies announce that the Covid-19 crisis is over. She doesn’t feel comfortable putting her life in danger or the lives of her clients in jeopardy over a few dollars. Since Sylvester is an independent contractor, she is not at risk of losing her job if she doesn’t show up for work. But many Californians can’t say the same.

Workers Wonder About their Rights During the Novel Coronavirus Outbreak:

As the coronavirus pandemic spreads, workers are wondering about their rights. What rights do workers have if their superiors on the job request (or demand) their return to the workplace. With some legislative leaders more worried about the economy than personal safety of California’s people, it has become a very relevant and pressing question, can you boss make you return to your desk job during a pandemic?

Can Your Boss Make You Go Back to Work During a Pandemic?

While experts say the answer to this particular question is no, the law isn’t entirely black and white. Whether or not your boss can force you to return to work may depend on the type of job you have. If your job position is defined by the local government in your area as “essential,” you may need to comply with your employer’s request to return to work or risk your job. California workers performing essential jobs like pharmacists or police officers or sanitation workers, etc. can be told to return to work. If they do not respond as requested, their actions may be defined as insubordination, or even considered “quitting” their job.  

Who Determines Whether Your Job is Essential Or Not?

Federal guidelines leave it to the state and local authorities to define which businesses are essential in a time of crisis. In most cases, the following workers would be considered essential: grocery store workers, medical staff, law enforcement, food laborers, utilities and transportation workers, government workers, emergency personnel, first responders, etc.

What Protections Are in Place for California Workers?

Unless there is a local mandate requiring that you show up to work during the coronavirus pandemic, employees are most likely within their legal rights to stay home (particularly if they are near a hot zone). The Occupational Safety and Health Administration includes a “General Duty Clause,” requiring that employers provide hazard-free work environments. (Hazard being defined as anything likely to cause death or severe injury to workers). Covid-19 counts as something “likely to cause death or severe injury.

If you need to discuss employment law violations in the wake of Covid-19, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Labor Law Issues Stemming from the Novel Coronavirus

The novel coronavirus has changed the day to day lives of many during the past weeks. The changes wrought by this unprecedented situation are making waves that seem to ripple through the legal landscape.

California Labor Law Issues Stemming from Coronavirus:

California labor law issues connected to the spread of the coronavirus are making themselves known. Uber drivers have been fighting for employee rights citing misclassification for years, but their arguments are escalating quickly in response to the coronavirus. 

Uber's Response to the Coronavirus Pandemic and Escalating Litigation: 

In response to the situation, Uber released a temporary pandemic-specific policy. The policy was introduced at the beginning of April 2020 after Uber drivers requested a California judge issue an emergency order to require Uber to classify them as employees during the coronavirus crisis. The drivers argued that failing to do so puts the public in danger as drivers classified as independent contractors are more likely to keep working when infected, which could further the spread of the virus at a crucial time when flattening the curve is so vital.

Introducing Covid-19 Sick Leave for Uber Drivers:  

The temporary policy Uber introduced in response to the demand for employee status is more stringent than protections provided to employees under the California labor code. However, it requires documentation of a Covid-19 diagnosis form a doctor or a personal order to quarantine, which still leaves a substantial risk to the public as many sick drivers will not be diagnosed or ordered to quarantine. With many of California's drivers living "check to check," they cannot obtain a doctor's note and will keep working even if exhibiting Covid-19 symptoms. The plaintiffs' counsel argues that this situation presents a risk of significant harm to the drivers themselves and the public.

The Response to Uber's Temporary Pandemic Sick Leave Policy:

Under the temporary policy Uber introduced, drivers would lose work (up to several hours) attempting to obtain the required doctor's note. Those who do not have Covid-19 symptoms have been advised to avoid visiting health care facilities. Doctors are busy – they don't want to be bothered to write a note to your employer. And U.S. District Judge Edward Chen agreed as he was recorded as responding that "getting a doctor's note may be problematic…" The judge suggested the gig rideshare company consider offering a self-certification process for drivers who can't easily gain access to a physician. 

Back to the Drawing Table to Seek a Better Temporary Solution:

While Uber argued that the temporary sick leave policy combined with the federal Families First Coronavirus Response Act and CARES Act, would provide more for affected drivers than employees receive under California state law, Judge Chen instructed both parties to try again suggesting an interim, pandemic-specific policy allowing drivers to access paid sick leave without a doctor's note or personal quarantine order.

If you need to discuss how to file a misclassification lawsuit or if you have questions about employment law violations amid the Covid-19 crisis, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.