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California: Clarification on Defining Exempt Managerial Duties

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December 18, 2019

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In The Safeway Wage and Hour Cases, the California Court of Appeal revisited how to determine whether a manager’s duties qualify as exempt or nonexempt. Generally, the court identified two types of work that each qualify as exempt from overtime.

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California: Settlement Agreements with Staffing Agencies Don’t Necessarily Cover Staffing Clients

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February 6, 2020

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In Grande v. Eisenhower Medical Ctr., the California Court of Appeal stated that an employee’s settlement of a wage and hour claim with a staffing agency does not prevent the employee from later suing the staffing agency’s client on the same wage and hour claims, where the settlement agreement does not expressly release the staffing agency’s clients.

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California: Employers Must Pay for Screening Time

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February 13, 2020

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In Frlekin v. Apple, Inc., the California Supreme Court stated that employers must pay employees for time spent undergoing security checks before exiting the workplace. The Ninth Circuit Court of Appeal asked the California Supreme Court to decide the rule in this case two years ago. There, employees were required to clock out and then undergo a security check while still on the premises. The security check was extensive, requiring employees to open and take things out of their bags, and verify the serial numbers of their own Apple products. If they didn’t complete the security check, employees were disciplined. The Court stated that because the employer retained sufficient control over the employee during this process, it was considered working time that should have been compensated.

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March Updates

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This Short List addresses the following topics:
  1. Second Circuit: ERISA Plans Can Be Modified Absent Fraud or Mistake
  2. 10th Circuit: Colorado Home Healthcare Workers are Not Entitled to Overtime
  3. California: Wage and Hour Concerns for Coronavirus
  4. California:  Emergency Wildfire Smoke Regulations Renewed Again
  5. Denver, CO: Anti-Discrimination Protections Expanded
  6. District of Columbia: Notice Requirements for Paid Family Leave
  7. Illinois: Guidance Issued on Sexual Harassment Requirements
  8. Minneapolis, MN: Local Minimum Wage Law is Given a Green Light
  9. St. Louis, MO: Ban-the-Box in Effect for Private Employers
  10. New Mexico: Workers’ Comp Claim Doesn’t Apply to Tribal Casino
  11. New York: Statewide Salary History Ban FAQs
  12. New York City, NY: Contractors/Freelancers Must Receive Anti-Harassment and Discrimination Protection & Training
  13. Philadelphia, PA: Salary History Inquiry Ban is Back in Effect
  14. Columbia, SC: Criminal and Salary History Ordinance No Longer Applies to Private Employers

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California: AB 5 Updates for Independent Contractors

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As Indicated

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On January 1, 2020, AB 5 went into effect. It essentially codified the ruling in Dynamex Operations West, Inc. v. Superior Court, which implemented an ABC test for determining whether a worker is an employee or an independent contractor. However, the bill also broadened the application of the ABC test and add a slew of exemptions for certain types of workers under certain circumstances.

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California: AB 51 Update – Mandatory Arbitration Agreements are Back In?

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January 31, 2020

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As of January 1, 2020, AB 51 prohibited employers from requiring job applicants and employees to enter into arbitration agreements. However, on December 30, 2019, a federal district court issued a temporary restraining order preventing the state from enforcing the bill while a request for preliminary injunction was reviewed. After extensive legal argument, on January 31, 2020, the court issued a preliminary injunction with respect to arbitration agreements covered by the Federal Arbitration Act (FAA), preventing the bill from going into effect while its legality is resolved in court. On February 10, 2020, the court issued its ruling supporting the preliminary injunction. Employers with arbitration agreements that are not covered by the FAA (e.g., agreements with interstate truckers) are still subject to the terms of AB 51.

The legal community appears to uniformly indicate that this development means that employers subject to the FAA can continue to use mandatory arbitration agreements until further development in the federal court case challenging the bill. However, employers are recommended to consult with legal counsel on the best course of action before determining next steps.

Action Items

  1. Review arbitration agreements with legal counsel in light of the recent development.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

California: FMCSA Preempts State Meal and Rest Requirements, But Don’t Jump on the Bandwagon Yet!

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January 13, 2020

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The Federal Motor Carrier Safety Administration (FMCSA) recently granted a petition from the American Bus Association (ABA), stating that California’s meal and rest period rules are preempted by federal law, which governs passenger-carrying commercial motor vehicle drivers’ hours of service requirements. Specifically, in contrast with prior challenges, the FMCSA said that state meal and rest period requirements are laws on commercial motor vehicle safety, which is regulated by federal law. Moreover, the meal and rest period rules have no safety benefit, are incompatible with federal regulations, and cause an unreasonable burden on interstate commerce.

While this may seem like a done deal, employers must still be cautious of enforcement of meal and rest period requirements in California. It is unclear if California will challenge FMCSA’s ruling, or what its next steps will be. Employers are strongly urged to consult with legal counsel before taking any steps that would violate state wage and hour laws. Continue to look for updates on this topic.

Action Items

  1. Review the FMSCA opinion with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

February Updates

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This Short List addresses the following topics:
  1. IRS Mileage Rates for 2020
  2. Fair Chance Act Now Applies to Federal Contractors and Agencies
  3. ACA “Cadillac Tax” Repealed
  4. California: Employer Fails to Provide Legal Business Name on Wage Statement
  5. Michigan: Paid Sick Leave and Minimum Wage Update
  6. New Jersey: Medical Marijuana is a Reimbursable Medical Expense
  7. New York: Tipped Workers in Some Industries Must Soon be Paid Full Minimum Wage
  8. New York: Companies Must Report Number of Women on Boards of Directors
  9. New York: Farm Laborers Fair Labor Practices Act on Temporary Hold

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Get Ready for California Legislative Updates in 2020!

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January 1, 2020

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The California Legislature tends to pass the hard-hitting employment law changes at the end of its session. Here are key updates employers should be aware of.

  • AB 9 | DFEH Claims Extended. Extends the statute of limitations to three years for all claims filed with the Department of Fair Employment and Housing (DFEH), like claims for sexual harassment, harassment, discrimination, and retaliation. Extending the time to file a claim highlights the need for employers to document all claims, investigations, and discipline.
  • AB 51 | Ban on Mandatory Arbitration. Employers will soon no longer be able to require employees to execute arbitration agreements as a condition of employment. However, it is unclear if agreements subject to the Federal Arbitration Act are exempt. The bill applies to contracts entered into, modified, or extended on or after January 1, 2020. Stay tuned … legal challenges are on the horizon.
  • AB 749 | No Rehire Agreements. Employers cannot enter into settlement agreements whereby an employee, who has made a claim against the employer, agrees they cannot obtain future employment from the employer. The rule does not apply where the employer made a good faith determination that the employee engaged in sexual harassment or sexual assault.
  • SB 142 | Lactation Accommodations. Employer obligations for lactation accommodations are expanded to provide nursing individuals with break time “each time such employee has need to express breast milk.” There are also increased requirements for an approved lactation room. Employers must also provide employees with a written lactation accommodation policy.
  • SB 188 | Hairstyle Protections. SB 188 amended the California Fair Employment and Housing Act (FEHA) to include protections for hairstyles, subject to limited exceptions.
  • SB 707 | Arbitration Fees. If an employer with an arbitration agreement fails to pay the required fees to initiate an arbitration proceeding within 30 days after the due date, it is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration.

Action Items

  1. Review claims procedures and documentation processes.
  2. Have managers trained on managing employee claims.
  3. Have arbitration agreements reviewed by legal counsel.
  4. Review no hire agreements with legal counsel.
  5. Ensure that appropriate lactation accommodations are or can be made available; otherwise, review with legal counsel to determine whether an undue hardship exemption may apply.
  6. Prepare and distribute lactation accommodation policy.
  7. Have dress code and discrimination policies updated, and hiring practices reviewed.
  8. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

California: IMPORTANT Changes for Independent Contractors

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January 1, 2020

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AB 5 codifies the already existing Dyanamex “ABC test” for independent contractors. A significant difference between now and next year is that there will be exceptions for certain jobs and relationships that do not currently exist. Those exceptions will revert back to the Borello multi-factor test for determining independent contractor status. Another key difference from Dynamex is that AB 5 will apply for purposes of the Labor Code, Wage Orders, and Unemployment Insurance Code. Starting July 1, 2020, it will apply for purposes of workers’ compensation issues.

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