California Labor Code

09 Oct New Bills to Make Uber, Lyft Drivers Employees

Following California's lead, other states are considering bills to make Uber and Lyft drivers, as well as other gig economy workers, employees. In September 2019, California's legislature passed Assembly Bill 5, which would change how the state regulates the use of independent contractors. In practice, AB 5 aims to make many workers in the gig economy, such as Uber and Lyft drivers, employees. Currently, such workers are independent contractors. Now, other states are mulling similar bills. Illinois lawmaker preparing bill to make Uber, Lyft drivers, others in gig economy, employees Illinois State Representative Will Guzzardi, will sponsored a bill similar to AB 5. Like AB 5, Guzzardi's bill targets gig economy workers, such as Uber drivers and food delivery app couriers, turning many into employees. Doing so would bring these workers under the protection of more labor regulations, such as the state's minimum wage laws. This effort is in the early stages and it's unclear how much support the bill will have. Either way, experts believe other states will follow California and Illinois in considering bills limiting the use of independent contractors. Lawmakers in other states will certainly be monitoring the reaction to these bills in California and Illinois. New York considering a bill that would extend some protections to non-employees New York State Senator Diane Savino says she'll introduce new legislation that would extend protections to"dependent workers," a new classification the bill would create. Unlike the California or Illinois bills, this bill does not intend to make Uber and Lyft drivers employees. Instead, it will extend certain employee protections to gig economy workers without making them employees. Critics say this is a half measure that will not do enough to combat what they say are Uber and Lyft's predatory employment practices. However, such an approach may prove more politically appetizing for lawmakers weary of radical changes to employment law. The difference between being an employee and an independent contractor is significant There are significant differences between being an employee and an independent contractor. State and federal labor law often does not extend to independent contractors. For example, independent contractors are often exempt from minimum wage laws. Unsurprisingly, employers regularly classify their employees as independent contractors. Unsure if you're properly classified? Read our blog post, for more information. If you believe your employer has missclassified you as an independent contractor, contact the Khadder Law Firm today for a free consultation. For updates on these bills and more, follow us on Twitter....

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08 Oct #MeToo inspired sexual harassment bills await signature

Three #MeToo inspired sexual harassment bills await the governor's signature. The legislature passed each of the three bills partly in response to the #MeToo movement, which has grown in response to sexual harassment in the workplace. As part of the movement, #MeToo advocates have called for updates to California's sexual harassment laws. While the bills all aim to deter sexual harassment, they each address distinct issues. AB 9, inspired by #MeToo criticisms, would extend the statute of limitations for sexual harassment claims AB 9 would extend the time victims of sexual harassment have to file claims under state law. Currently, sexual harassment victims generally have only one year to take action. AB 9 would change the statute of limitations for sexual harassment to three years. Employment lawyers and supporters of the #MeToo movement have criticized the short statute of limitations California has for sexual harassment claims. They argue many sexual harassment victims don't immediately recognize they've experienced legally actionable sexual harassment. By the time they do, it may be too late to take action. Meanwhile, critics of AB 9 argue that it will increase employers' liability. Undoubtedly, this would be a major change to state employment law. But until the bill goes into effect, nobody can say for sure how much real world impact the change would have. AB 51 seeks to protect sexual harassment victims' right to sue in court AB 51 would prohibit employers from enforcing mandatory arbitration clauses against victims of sexual harassment. Employers are increasingly using mandatory arbitration clauses in their contracts with employees. Arbitration is essentially a private court system. Arbitration generally has similar procedures as court, but there are some important differences. These differences, tend to advantage employers. Moreover, it's very rare that a court will decline to enforce an arbitration agreement. Unsurprisingly, many #MeToo advocates have been critical of arbitration agreements, arguing they take rights away from sexual harassment victims. Moreover, because arbitration is private, it allows employers to sweep sexual harassment lawsuits under the rug. AB 51 would make it harder for employers to enforce such agreements against victims of sexual harassment. Advocates hope the legislation would help victims fight back more effectively against sexual harassment at work. Even if passed, however, it's possible that AB 51 would conflict with federal law regarding arbitration agreements. Where state and federal law directly conflict, federal law prevails. Therefore, it's possible AB 51 would have little or no impact on sexual harassment lawsuits. If AB 51 does become law, courts will have to work this out. AB 749 would prohibit employers from including "no rehire" clauses in sexual harassment settlements AB 749 prohibits employers from including "no rehire" clauses in settlement agreements with sexual harassment victims. These clauses give employers the right to refuse to hire or employ the victim in the future. #MeToo advocates argue this is a form of retaliation against employees who file sexual harassment lawsuits. By prohibiting such clauses, the legislature sought to ensure that victims can move on without sacrificing future opportunities. #MeToo advocates hope governor will sign the sexual harassment bills As of now, these three #MeToo inspired sexual harassment bills are not law. They will only become law with the governor's signature. The governor has until October 13, 2019 to sign them. Activists in the growing anti-sexual harassment movement are hoping the governor will sign them before the upcoming deadline. If the governor does not sign one or more of the bills, don't expect that to be the end of the line. This is only the beginning of what will likely to be a long effort to reshape California's civil rights laws to combat sexual harassment. If you believe you have been a victim of sexual harassment, contact the Khadder Law Firm today for a free consultation. For updates on these bills and more, follow us on Twitter....

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30 Sep New bill would make Uber and Lyft drivers employees

The California State Senate has passed Assembly Bill 5, which would transform the state's rules around independent contractors, likely turning Uber and Lyft drivers into employees. If signed into law, the bill would restrict the use of independent contractors. Such a change would profoundly impact California's labor market. In particular, AB 5 would affect thousands of gig economy workers. This includes Uber and Lyft drivers and couriers for delivery apps such as Postmates and DoorDash. It could also affect Amazon warehouse workers and delivery drivers. New rules for determining whether a worker is an employee or independent contractor AB5 codifies and expands the California Supreme Court’s groundbreaking 2018 decision in Dynamex Operations West, Inc. v. Charles Lee. In that case, the court adopted a new test for determining when a worker is an employee. Under the new "ABC Test," a worker is presumed an employee and will deemed so unless the employer proves that: (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (2) that the worker performs work that is outside the usual course of the hiring entity’s business; and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Uber and Lyft do not treat their workers as employees, but AB 5 would likely require them to do so Under previous law, employers could usually treat workers as independent contractors as long as they did not exercise direct control over workers’ schedules and tasks. This regime allows companies such as Uber, Lyft, Postmates, and DoorDash to treat their drivers and couriers as independent contractors. Under the rule codified in AB 5, companies must show that the worker performs work outside of the core of their business. Because transporting people is so central to Uber and Lyft’s business, it will be difficult for such companies to avoid treating their workers as employees. The effects of being an independent contractor are significant While it may see like a subtle distinction, the practical effects of being an independent contractor, as opposed to an employee, are significant. Many labor and employment laws apply only to employees. For example, in some circumstances, companies can pay independent contractors below minimum wage. Additionally, employers must also carry workers’ compensation insurance to cover all employees, but not independent contractors. Perhaps most critically, much of the state and federal law that prohibits employment discrimination does not apply to independent contractors. Accordingly, independent contractors often have no legal recourse for harassment and discrimination. Unsurprisingly, misclassification is common in California. The Department of Industrial Relations estimates that misclassification costs the State $7 billion per year in lost payroll tax revenue. Even if AB 5 is signed into law, employers will undoubtedly continue to misclassify workers. Uber and Lyft say they wont classify drivers as employees Uber and Lyft have already announced that they do not plan to reclassify their drivers as employees if the bill becomes law. They argue that they are technology companies, not transportation companies. Therefore, they contend that their drivers do not perform tasks that are core to their business. If AB 5 becomes law, this argument will surely be tested in court. AB 5 now goes to Governor Newsom, who is expected to sign it into law AB 5 now goes to Governor Gavin Newsom for signature. Newsom has already announced his support for the bill and will likely sign it. AB 5 would go into effect on January 1, 2020. For updates on AB 5 and more, follow us on Twitter. If you believe you have been misclassified as an independent contractor, contact the Khadder Law Firm for a free consultation....

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05 Apr Working overtime to keep up

What if my employer gives me more work than I can accomplish in 40 hours and I'm working overtime to keep up Sometimes an employee ends up working overtime to keep up with their work. But what if your employer hasn't authorized your overtime? What if they don't know that you're working nights or weekends to keep up? Can you recover pay for that time? In general, an employer can prohibit you from working overtime. But, if you work that time, you should still be entitled to overtime pay, at least as long as the employer hasn't told you not to work any overtime. Especially if your employer gives you more than 40 hours of work. If they tell you, “Don't work more than 40 hours,” but you do so anyway, that’s different. In that case, you may not be able to recover overtime pay. But, if they give you the work, and they don’t tell you not to spend as much time as you need? Then you are entitled to overtime pay. Each case is different. If a court was looking at it, they might adjust how much overtime pay you are entitled to. In doing so, the court will consider the specific circumstances of how you worked those overtime hours. Another factor is whether the employer knew about the overtime. If you believe that your employer has failed to pay you overtime that you have earned, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter....

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02 Apr Overtime claims and record-keeping

A common issue arises regarding overtime claims and record-keeping, or the failure to keep records. Both California and federal law require employers to pay overtime to eligible employees. If your employer hasn't paid you overtime to which you're entitled, you can bring a lawsuit against your employer to recover that pay. In most cases, you can prove your claim using your employer's records. But what if your employer hasn't kept records of your overtime? Proving overtime claims and record-keeping It's more difficult to prove your claims if your employer doesn't have adequate records of your hours. Fortunately, California has laws regarding overtime claims and record-keeping. California law requires employers to keep and maintain records on the hours that their non-exempt employees work. If they fail to do so, they can be liable for penalties under the California labor code. Therefore, if your employer is complying with the law, you should be able to prove your claim with their records. But even if they don't, the law still allows you to pursue your claims. Proving claims without your employer's records Ideally, your employer has records that accurately reflect how much overtime you've worked. But this isn't always the case. While this can make things more complicated, it's not fatal. For example, suppose an employee sues her employer for failure to pay overtime and the employer hasn't kept records of that overtime. Typically, the court will allow the employee to estimate the amount of overtime they have worked. The court will take that into consideration in determining how much the employee can recover. The more precisely you can estimate the overtime, the better. If you believe that your employer has failed to pay you overtime that you have earned, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter....

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