ninth circuit – ManagEase

9th Circuit: De Minimis Rule Does Not Apply to Regular Work Activity Regardless of How Little Time is Spent

September 27, 2019/0 Comments/in HR Alerts /by ManagEase

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All Employers with CA Employees

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June 28, 2019

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In Rodriguez v. Nike Retail Servs., Inc., the Ninth Circuit refused to apply the de minimis rule to time employees spent participating in security checks after clocking out, even though the time spent could have been less than a minute. The de minimis rule allows employers to forego paying employees for short, uncertain and indefinite periods of time that are irregularly worked off the clock.

Ninth Circuit: The Dynamex Independent Contractor Test Applies Retroactively

June 17, 2019/0 Comments/in HR Alerts /by ManagEase

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All Employers with CA Employees

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May 2, 2019

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In Vazquez v. Jan-Pro Franchising, Inc., the Ninth Circuit stated that the California Supreme Court Dynamex decision applies retroactively. Specifically, Dynamex created the ABC test for determining whether an individual is an independent contractor for purposes of state wage and hour laws. Unfortunately, at the time, the California Supreme Court did not indicate whether or not Dynamex was to apply retroactively. Now, the Ninth Circuit has officially answered that question.

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

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

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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.

March Updates

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

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This Short List addresses the following topics:

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

Ninth Circuit: FCRA Disclosure Notice to Employees Must Stand Alone

February 7, 2019/0 Comments/in HR Alerts /by ManagEase

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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.

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

October 9, 2018/0 Comments/in HR Alerts /by ManagEase

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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.

October Updates

October 9, 2018/0 Comments/in HR Alerts /by ManagEase

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This Short List addresses the following topics:

U.S. Department of Labor Issues Updated FMLA Forms
EEO-1 Reporting Deadline Still March 31st
NLRB: E-Verify Enrollment is a Mandatory Subject of Bargaining
IRS Updates Paid Family Leave Tax Credit
Sixth Circuit: Educational Institution’s Investigation Procedures Challenged in Title IX Case
Seventh Circuit: Potential Back Pay in Hostile Work Environment Claims
Ninth Circuit Affirms DOL Guidance on “20% Rule” for Tipped Employees
California: IMPORTANT – Update on How Split Shifts Are Paid
San Francisco, CA: Update Fair Chance Ordinance Notice/Poster
New York: Home Care Workers’ “13-Hour Rule” is Invalid

Seventh Circuit: Fair Credit Reporting Act Pre-Adverse Action Requirements Are Actionable

September 10, 2018/0 Comments/in HR Alerts /by ManagEase

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Employers with IL, IN, WI Employees

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August 29, 2018

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Contrary to the Ninth Circuit’s recently ruling, the Seventh Circuit Court of Appeal stated that an employer’s failure to provide a copy of an applicant’s background check report and notice of rights under the Fair Credit Reporting Act (FCRA) gives an applicant standing to sue the employer, because it amounts to an allegation of being deprived a chance to benefit. Employers are required to provide the report and notice to applicants under the FCRA so that they may have the opportunity to contest the accuracy or completeness of the information.

September Updates

September 10, 2018/0 Comments/in HR Alerts /by ManagEase

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This Short List addresses the following topics:

The DOL Created a New Department to Support Employer Compliance
OFCCP Staff Must Account for Federal Contractors’ Religious Freedoms
Federal Contractor Minimum Wage Increase for 2019
Sixth Circuit: FLSA Does Not Invalidate Arbitration Agreements
Eighth Circuit: USERRA Still Protects Employees Who Don’t Have Guaranteed Working Hours
Ninth Circuit: Employers Can Prohibit Future Employment With Their Company
California: Update to EDD Workplace Posting DE 1857A
Massachusetts: Railway Unemployment Insurance Act Preempts Statewide Sick Leave
New Jersey: New Bill Expands Ability to Claim Unemployment Insurance Benefits
New Jersey: State and Federal Authorities Pledge Stronger Enforcement Against Misclassification
New York City, NY: Anti-Sexual Harassment Poster and Fact Sheet Now Available
South Carolina: Pregnancy Accommodations Poster Now Available
Austin, Texas: The City’s Paid Sick Leave is On Hold – For Now
Seattle, WA: New Employer Obligations for Domestic Workers

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

August 6, 2018/0 Comments/in HR Alerts /by ManagEase

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

EFFECTIVE

July 13, 2018

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(888) 378-2456

In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.

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