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Arbitration Agreement Update: Who Decides Arbitrability of a Claim?

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Last month, the U.S. Supreme Court decided in two scenarios where it could and could not enforce an arbitration agreement. On January 8, 2019, in Henry Schein, Inc. v. Archer & White Sales, Inc., the Supreme Court stated that a court cannot decide what claims are covered under an arbitration agreement where the agreement states that the arbitrator must decide.

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NLRB Changes Independent Contractor Test Again

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January 25, 2019

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The National Labor Relations Board (NLRB) recently issued a board decision in SuperShuttle DFW, Inc., stating a return to the common law “entrepreneurial opportunity” analysis for independent contractors and rejecting the previous FedEx Home Delivery “economic realities” test. The common law analysis looks at a variety of factors, with no one factor being decisive: (1) extent of control, (2) engagement in a distinct occupation or business, (3) whether the work in is usually done with or without supervision from the employer, (4) skill required, (5) who supplies the tools and place of work, (6) length of time employed, (7) payment by time or by job, (8) whether the work is part of the regular business of the employer, (9) whether there is a “master and servant” relationship, and (10) whether the worker is or is not in business.

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California: IMPORTANT – Significant Changes to Reporting Time Pay

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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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Washington, D.C.: ADA Accommodations May Be Required to Alleviate Pain While Working

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August 1, 2018

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In Hill v. Associates for Renewal in Education, Inc., the D.C. Circuit Court stated that although an ADA accommodation may not be necessary for an employee to perform his job, it may be required to alleviate an employee’s pain while working. There, a teacher with a leg prosthesis and leg injury requested an accommodation for pain that occurs when walking up stairs to his classroom and standing for long periods. Initially, the request was accommodated, but later the employer withdrew the accommodations. The teacher subsequently filed a claim alleging disability discrimination and a hostile working environment based on the denial for an accommodation.

California: Ignorance of the Law Doesn’t Excuse Employers from Waiting Time Penalties

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May 24, 2018

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The California Court of Appeal’s recent decision in Diaz v. Grill Concepts Services, Inc. confirms just how important it is to stay on top of local and federal employment regulations.  Substantial penalties were assessed against Grill Concepts Services, Inc. because the company was unaware of a local wage change and accidentally shortchanged its workers’ pay.  The court affirmed that a lack of malicious intent did not protect the employer from allegations of a “willful” failure to pay.

In Diaz, the employer operated a restaurant near the LAX airport, located within a unique zone that amended its living wage formula in 2010.  Unaware of the change in formula, the restaurant failed to adjust employees’ wages and shortchanged the workers, who filed a class action demanding unpaid wages and “waiting time” penalties.  Under California Labor Code, “waiting time” penalties in the form of up to 30 days’ wages may be assessed against employers that willfully fail to pay any part of an exiting employee’s wages.

The court stated that where the law is clear regarding an employer’s responsibilities, a “willful failure” occurs when the employer voluntarily acts in a manner that falls short of its legal obligations.  Because of the restaurant’s lack of due diligence in following the 2010 living wage amendment, and because the language of the relevant law was clear regarding the employer’s responsibility, the court stated that the restaurant’s ignorance of the law qualified as a willful failure.

The court’s determination in Diaz serves as a warning and a reminder to all employers of the importance of diligent follow-up and compliance with both local and federal regulations.

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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.

© 2018 ManagEase

California: Federal Arbitration Act Unenforceable in Employment Contracts for Employees Transporting Goods Outside the State

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February 23, 2018

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A California Court of Appeal recently stated that the provisions of the Federal Arbitration Act (“FAA”) is unenforceable in employment contracts for employees who engage in interstate or foreign transportation, regardless of whether the employer is in the transportation industry.