California Appellate Court Applies Dynamex Retroactively

Introduction: For a little over a year, California employers and courts have been wrestling with the impact of Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018), which dramatically altered the independent contractor landscape in the Golden State last year. Dynamex upended a long-standing multi-factor test which had been applied to determine if a worker was an employee or an independent contractor, ushering in the new “ABC test.” One of the main unresolved questions left in the wake of Dynamex was whether the new “ABC test” applies retroactively. Continue reading

AB 5, Codifying Dynamex and Broadening the ABC Test’s Application, Passes California Legislature

Executive Summary: After months of debate and negotiations, the California State Legislature passed the controversial AB 5 on Wednesday, September 11, 2019, bringing it one step closer to being law. If passed, the new law is expected to impact and clarify the use of independent contractors throughout the state. It is now on Governor Newsom’s desk. If signed, it will go into effect on January 1, 2020. Continue reading

Ninth Circuit Applies Dynamex Retroactively

Executive Summary: In 2018, the California Supreme Court adopted the “ABC test” for determining whether workers are independent contractors under California wage orders (the Dynamex decision). For a discussion of that decision, please see our May 3, 2018 Alert. The ABC test makes it more difficult in many cases for companies to classify a worker as an independent contractor than under the prior generally-applied common law test. As such, the adoption of the ABC test increases many California employers’ exposure for minimum wage, overtime, meal and rest periods, and other benefits owed to employees but not to independent contractors. On May 2, 2019, in Vasquez v. Jan-Pro Franchising International, Inc., the Ninth Circuit concluded that the ABC test should be applied retroactively to situations that arose before the Dynamex decision came out. Continue reading

California Permits Waiver Of Second Meal Period For Health Care Employees

 

Boughton, Ross - 300dpi
Ross Boughton

Executive Summary

In Gerard v. Orange Coast Memorial Medical Center, 2018 Cal. LEXIS 9500 (Dec. 10, 2018), the final chapter of long-running saga that has produced multiple published decisions, the Supreme Court of California finally brought clarity to an unresolved question for California’s health care employers: can health care employees lawfully waive their second meal period for shifts longer than 12 hours?  In Gerard, the Supreme Court of California answered with a clear “yes.”  Continue reading

Proposed Class Settlement Shows Potential Cost of Failure to Reimburse for Work-Related Personal Vehicle Use in California

Reed, Tim - 300dpi
Tim Reed

California law mandates that employers reimburse employees for work-related expenses.  Under section 2802 of the California Labor Code, “[an] employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”  Cal. Lab. Code § 2802(a).  Among the items that may require reimbursement in California are office supplies, uniform costs, travel expenses, and mandatory training.  In addition, an employer must reimburse its employee for a reasonable percentage of the employee’s cell phone bill where personal cell phone use is required as part of the employee’s job duties.  Employers are also required to reimburse employees for costs associated with use of a personal vehicle for work-related purpose.  The duty to reimburse for business expenses arises where an employer “know[s] or ha[s] reason to know that the employee has incurred an expense.”  Stuart v. Radioshack Corp., 641 F. Supp. 2d 901, 904 (N.D. Cal. 2009).   Continue reading