California Supreme Court

30 Sep New bill that would make Uber and Lyft drivers employees

Posted at 13:57h in California Labor Code, California Law, California Supreme Court, Employment Classifications, Overtime, Wages

The California State Senate has passed Assembly Bill 5, a new bill that would make Uber and Lyft drivers employees, 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 the governor signs AB 5 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 and Instagram. If you believe you have been misclassified as an independent contractor, contact the Khadder Law Firm for a free consultation....

14 Feb If someone were denied employment and more qualified for the job than the applicant who was successful in getting the job, how does one prove that case?

Posted at 09:51h in Accomodations, ADA, Calculating Damages, California Law, California Supreme Court, CFRA, Damages, Disability, Disability Discrimination, Emotional Distress, Employment Classifications, Employment Discrimination, Failure to Accommodate, FEHA, FMLA, Hiring Preference, Long Term Disability, Loss of Employment, Loss of Income, Medical Condition, Mental Disability, Protected Categories, Undue Burden, Undue Hardship, Work-Life Expectancy

Let’s first look at a situation where an applicant with a disability objectively is not as qualified as a person without a disability. Let’s assume that their qualifications are not less than a person without a disability because of their disability, but it’s because of some other factor such as education or skill. The employer doesn’t have to give preference to the person with a disability if that person with a disability is objectively less qualified than the person without a disability. If the employer hires the person without a disability over someone with a disability who is more qualified, that, in and of itself, can be evidence of discrimination. Rarely is there direct evidence of discrimination in disability cases or other cases. It is extremely rare where you would have evidence of an employer writing an e-mail or sending a message to the effect of, “I don’t want to hire that person because of their disability,” because employers are a lot savvier than that. You have to show through circumstantial evidence that it is more likely than not that you, as a person with a disability, did not get a job because of your disability. There could be stray comments to prove discrimination on the part of an employer to hire you, you may have evidence of comments that were made by an employer or supervisor where they made fun of people with disabilities, where they treated other people with disabilities poorly, or other things to show that the person had a discriminatory animus toward people with disabilities. There is very rarely any direct evidence of discrimination, but with enough circumstantial evidence you may be able to overcome the burden of proof to prevail on a disability discrimination claim. In California law, and more recently in the California Supreme Court, it was held that the disability has to be a substantial motivating factor for the employer’s decision not to hire or to fire, or do some other adverse employment action. Therefore, you have to show that the employer was substantially motivated by your disability. That raises the bar a little bit. It used to just be simple motivation: Your prospective employer could have ten reasons why they didn’t hire you, and one of the reasons of those ten was your disability, and the other nine were non-protected reasons. Now, the bar is a little bit higher. In the past, that was enough to win on a disability discrimination case. Now, it’s got to be a little bit more than that; it has to be a substantial motivating factor. If you have been refused a job because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation. ...

12 Dec What if I’m afraid of making the overtime claim because I might lose my job?

Posted at 10:57h in Accomodations, California Labor Code, California Law, California Supreme Court, Damages, Employment Categories, Employment Classifications, Employment Discrimination, Exempt, Failure to Accommodate, Legal Assistance, Litigation - Suing Your Employer, Overtime, PAGA - Private Attorney's General Act, Remedies, Retaliation, Wages

This is a legitimate concern that many employees have, and unfortunately, there is no perfect protection against an employee who seeks to enforce their rights to overtime and other pay laws. The good news is that California law prohibits retaliation against an employee who asserts their rights under the wage and hour laws. California labor code 1102.5 (see below) is a particularly powerful tool for going after employers that retaliate against you for asserting your rights under the labor code. There are other provisions in the labor code that also prohibit retaliation, and provide that the person can sue on those claims, but labor code section 1102.5 is the most commonly used. In addition, because Section 1102.5 falls within the California labor code, an employee may also be able to sue under the Private Attorney General Act and recover attorney’s fees for any retaliation that he or she experienced because they sue to enforce their rights to overtime pay. < California Labor Code 1102.5 > Labor Code - LAB DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5] ( Division 2 enacted by Stats. 1937, Ch. 90. ) PART 3. PRIVILEGES AND IMMUNITIES [920 - 1138.5] ( Part 3 enacted by Stats. 1937, Ch. 90. ) CHAPTER 5. Political Affiliations [1101 - 1106] ( Chapter 5 enacted by Stats. 1937, Ch. 90. ) 1102.5. (a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section. (g) This section does not apply to rules, regulations, or policies that implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950) of, or the physician-patient privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the Evidence Code, or trade secret information. (h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section. (i) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400. (Amended by Stats. 2015, Ch. 792, Sec. 2. Effective January 1, 2016.) If your employer has retaliated against you for making an overtime claim, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....