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Ninth Circuit: Joint Employers Are Liable for Non-Workplace Matters Under Title VII for H-2A Workers

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, or Northern Mariana Islands Employees with H-2A Visas

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February 6, 2019

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In EEOC v. Global Horizons, Inc., the Ninth Circuit stated that because employers of H-2A workers are required to provide housing, meals and transportation as “material terms and conditions” of their employment, these employers can be liable for such non-workplace matters under Title VII, even if the employers contract with a third party to provide those work benefits. There, two orchard growers hired Global Horizons as their staffing firm to recruit agricultural workers using H-2A visa authorizations. Two of the workers filed a discrimination claim against the growers and Global Horizons, claiming poor working conditions, substandard living conditions, and unsafe transportation based on their race and national origin.

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California: New Independent Contractor Test for Domestic Caregivers

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All Employers with CA Independent Contractors Who Are Domestic Caregivers

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January 11, 2019

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In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal recently applied yet another independent contractor test to domestic caregivers who are subject to the Domestic Worker Bill of Rights (DWBR). Specifically, the DWBR states that an employment relationship exists under two possible scenarios. First, employment occurs “when the hiring entity exercises control over the wages, hours, or working conditions of a domestic worker.” The court noted that an employer need only have control over one of these characteristics, not all three. Second, employment is also defined “when a common law employment relationship has been formed.” This is analyzed using the Borello test.

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California: Labor Commissioner Challenges Federal Preemption of Meal and Rest Break Rules

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All Employers with CA Employee Truck Drivers Subject to HOS Regulations

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February 6, 2019

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California Attorney General Xavier Becerra recently announced that the California Labor Commissioner intended to challenge the Federal Motor Carrier Safety Administration’s (FMSCA) determination that federal hours of service (HOS) regulations preempt California meal and rest period regulations for property-carrying commercial vehicle drivers. Specifically, the FMSCA announced California meal and rest period regulations were incompatible with federal regulations, disrupted interstate commerce, did not offer any safety benefits beyond that already covered by federal law, and were overly burdensome and difficult to regulate. In response, on February 6th, the California Labor Commissioner filed a petition with the Ninth Circuit Court of Appeal, requesting that the circuit court review and reverse the FMSCA determination.

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California: Payroll Service Providers Not Liable for Payroll Violations

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All Employers with CA Employees

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February 7, 2019

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In Goonewardene v. ADP, Inc., the California Supreme Court recently stated that a third-party payroll service provider could not be held liable for errors the service made in issuing paychecks to employees of the company it provides service to.  There, an employee sued both her employer and ADP, its payroll processing service, for wage and hour violations, including failure to provide adequate documentation and records, wrongful termination, breach of contract, and negligence, among others.  The former employee argued that she was a third-party beneficiary of the contract between ADP and her employer, and that ADP had been negligent in providing payroll services for her benefit.

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March Updates

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This Short List addresses the following topics:
  1. U.S. Supreme Court Reversed Ninth Circuit Equal Pay Ruling Based on Judge’s Death
  2. Fifth Circuit: Restated Its Position that Title VII Does Not Protect Sexual Orientation
  3. California: Guidance on New Agricultural Overtime Pay Requirements
  4. Alameda, CA: City Minimum Wage Increases to $13.50 in July, Regardless of Employer Size
  5. Florida: Miami Beach Minimum Wage Struck Down
  6. Illinois: $9.25 Minimum Wage by January 2020, With New Possible Penalties
  7. Minneapolis, MN: Minimum Wage Increase Approved
  8. New Jersey: $10 Minimum Wage in July 2019, $15 by 2024
  9. Westchester County, New York: Bans the Box
  10. Portland, Oregon: Prohibits Discrimination Against Atheists and Agnostics
  11. West Virginia: Federal Law Enforcement Pension Freed From State Taxes

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Ninth Circuit: FCRA Disclosure Notice to Employees Must Stand Alone

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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January 29, 2019

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In Gilberg v. Cal. Check Cashing Stores, the Ninth Circuit stated that the Fair Credit Reporting Act (FCRA) prohibits including “extraneous” information with the required notice of rights, including legal rights individuals have under state fair credit reporting laws. The FCRA applies to employers who obtain background or credit reports on applicants and employees in the employment context. Specifically, the FCRA requires employers to provide the individual with a disclosure of their right to obtain a copy of the report, and obtain written authorization before obtaining the reports. Although the authorization may be on the same page as the disclosure, no other information may be present. Additionally, because the California Investigative Consumer Reporting Agencies Act (ICRAA) mirrors the FCRA, the same segregation requirements apply to California-required disclosures.

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California: IMPORTANT – Significant Changes to Reporting Time Pay

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All Employers with CA Employees

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February 4, 2019

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In Ward v. Tilly’s, Inc., the California Court of Appeal stated that employees required to call in two hours before a shift starts, to see whether or not they need to report to work, must be paid a minimum of two hours of work even if the employee is told they do not need to report for work.

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Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA

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Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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August 29, 2018

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The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.

Ninth Circuit: California State Law Governs Employment Classification of Truck Drivers

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Employers with CA Employees in the Motor Carrier Industry

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September 10, 2018

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In California Trucking Association v. Su, the Ninth Circuit stated that the Federal Aviation Administration Authorization Act (FAAAA) did not preempt California’s Labor Commissioner from using a state common law test to determine whether truck drivers are misclassified as independent contractors, because the test used is not related to prices, routes, or services. There, the California Trucking Association (CTA) filed suit against the Labor Commissioner claiming that owner-operator truck drivers are independent contractors, and asked the court for a declaration that federal law preempted the Commissioner from using the state’s standard.

California: New Employment Laws Coming in 2019

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January 1, 2019, unless noted otherwise

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Governor Brown recently signed numerous employment-related bills, impacting various industries and employment practices; among these are a package of bills following the #MeToo movement.  The below list summarizes some key bills.