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New California Employment Laws for 2019. 

 

1. California’s minimum wage for 2019  is $11/hour for employers of 25 or less employees; and $12/hour for 26 or more employees.  [The minimum salary for exempt computer professionals is now $94,603.25 annually.]

 

2.  Gov’t Code:  Strengthening Laws Against Sex Harassment.

 

i)  Assure workplace free of sex harassment:  Obtain and post revised discrimination poster to include sex harassment; a poster on transgender rights; DFEH information sheet re sex harassment to all employees with specific content (definition of sex harassment, examples, illegality, complaint process, remedies, connection to DFEH and its website); provide sex harassment training, per section 12950.1.  Sec. 12950.

 

ii)  Harassment Education and Training:  Beginning this year, employers with 5 or more employees in California must provide at least one hour of interactive training, covering sex harassment, for non-supervisors every 2 years (and within 6 months for new employees).  Trainings to include: federal and state laws, preventing, correcting, and remedying abusive conduct and sex harassment, and practical examples and trainers with expertise in harassment, discrimination, and retaliation.  If the training is done by the end of 2019, then the next training could be done anytime up to the end of 2022.  Sec. 12,950.1.  [As of Jan. 1, 2020, sex harassment training for migrant, seasonal, and temporary employees.]

 

iii) Bystander Intervention Training:   Harassment trainings to cover bystanders and non-employees.  Sec. 12950.2

 

iv) Release of claims:   Employers may not a) require an employee to release FEHA claims as a condition of employment or in exchange for a raise or bonus.  And, b) may not require an employee to sign a non-disparagement agreement or other document to suppress unlawful acts in the workplace. But, c) an employer may, in a voluntary, deliberate, informed and negotiated settlement agreement, require releases of claims that were filed in court, before an administrative agency, an ADR forum, or through an employer’s internal complaint process. Sec. 12964.5

 

v) DFEH may adjudicate sex harassment complaints from customers of businesses, under Civil Code Sec. 51.9, which prohibits sex harassment in various business, service and professional relationships.  E.g. doctor, lawyer, landlord, teacher, elected official. etc.  Sec. 12930 (f)(2).

 

vi) A settlement agreement is void and unenforceable if it waives a party’s right to testify in court about sex harassment claims. Civil Code 1670.11.                     

 

vii) A settlement agreement following a complaint in court or administrative venue, may not suppress facts about workplace discrimination, harassment, or retaliation, sex harassment, or assault.  The identity of the plaintiff or the amount of any monetary settlement may, however, be suppressed, unless a governmental agency or public official is party to the settlement.   Civil Procedure Code sec. 1001.

 

 

Please call Bob Fries with questions:   rfries@carterfries.com    415-989-7690.

 

 

 

May 1, 2018:     Independent Contractor v. Employee

 

            A question employers frequently face is whether someone who renders services is properly classified as an independent contractor, or must be treated as an employee and therefore subject to the various employment laws and regulations.  The California Supreme Court has issued an opinion that sets out a new test for answering the question.  The case, Dynamex Operations West, Inc. v Superior Court, decided April 30, 2018, involves the definition of “employee” under the state’s wage orders, which impose obligations relating to minimum wage, overtime, meal and break periods, and other conditions. 

 

             Dynamex is a courier and delivery service that classified its drivers as independent contractors.  The wage order for that industry, like most wage orders, defines “employer” as one who “exercises control over the wages, hours, or working conditions,” or “engages” workers, or “suffers or permits” people to work.  The case deals with what it means to “suffer or permit to work.”  The Court interprets that phrase broadly, adopting a so-called “ABC” test to distinguish between employees and independent contractors.  Under the test, all workers are presumed to be employees, unless the business can demonstrate that the worker in question satisfies all three conditions:

 

             “Part A: Is the worker free from the control and direction of the hiring entity (the business) in the performance of the work, both under the contract for the performance of the work, and in fact?”  This condition—the “right to control the work” or the “control of details”-- was formerly thought to be the most important factor.  Now, it is not sufficient that the individual controls how or when the work is done.  Two more factors also must be met.

 

             “Part B: Does the worker perform work that is outside ‘the usual course of business’ of the hiring entity?”  Is the individual providing a service that is “reasonably viewed” as part of what the hiring business exists to do—something employees would ordinarily do-- or is the service not part of the hiring entity’s business?  The Court gives a few examples.  Take a retail store: an outside plumber hired to repair a leak or an electrician hired to install a line would not be providing services that are in the store’s usual course of business—the store does not provide or sell plumbing or electrical services—so the plumber and electrician could be independent contractors.  Conversely, work-at-home seamstresses hired by a clothing manufacturer would be doing work that is part of the manufacturer’s usual business operation—making clothes—so they would have to be employees, as would drivers who drive for a transportation company.  Not all situations are cut-and-dried, however.  This is likely to be the most disputed part of the test. 

 

             “Part C: Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity?”  Independent contractors are individuals who are in business for themselves, and have taken what the Court calls “the usual steps to establish and promote his or her independent business.”  For example, independent contractors incorporate their business, obtain a license, put out advertisements and routine offerings to provide their services…to the public or to a number of potential customers, etc. 

 

             Companies and businesses that utilize independent contractors should now evaluate their practices to decide whether they meet all three conditions of the ABC test, and to determine what next steps should be taken to avoid exposure for wage-and-hour claims.  Our firm is available to assist.

 

 


CLICK HERE for CA Division of Labor Standards Enforcement publications, including required Notices and Posters.