Important new legal protections for employees last year

Here are some important laws that were created or that took effect in California in 2018 to continue to protect employees:

CA Supreme Court Tightens Laws on Independent Contractor Misclassification

The Supreme Court ruled that a worker is properly considered an independent contractor to whom employment laws does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The Court called this the ABC standard.

The court noted that the term “independent contractor” ordinarily refers to an individual who independently has made the decision to go into business for himself or herself. A company that labels as independent contractors a class of workers who are not engaged in an independently established business in order to avoid the financial obligations of being an employer is violating the law. Thus, a worker hired by an entity is presumed an employee and places the burden on the hirer to establish that the worker is an independent contractor. If the hirer fails to show that the worker satisfies each of the three criteria, the worker must be treated as an employee, not an independent contractor.

Even 5 Minutes Daily of Unpaid Work Matters

A Starbucks employee was required to work four to ten additional minuteseach day unpaid. Starbucks refused to pay him, stating that the employee’s time was de minimistime, which is defined as “insubstantial and significant periods of time beyond the scheduled working hours which cannot as a practical administrative matter be precisely recorded for payroll purposes.” The High Court stated that California did not adopt the de minimis doctrine found in federal law. Not only that, California law mandates that employees should be paid “for allhours worked.” Hours worked means “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

An employer that requires its employees to work minutes off the clock on a regular basis may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine. As demonstrated in the Starbucks case, a few extra minutes of work each day can add up. Employers have alternatives that allow them to track small amounts of regularly occurring work time, such as restructuring the work so that employees would not have to work before or after clocking out. Also, technological advances may help with tracking small amounts of time. Lastly, it is possible to reasonably estimate work time, for example, through surveys, time studies, or a fair rounding policy – and to compensate employees for that time.

Updates to California’s Sexual Harassment Laws

• A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if it has unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive work environment. California rejects the “one free grope” standard created by the 9th Circuit federal court in 2000.

• The existence of a hostile work environment depends upon the totality of the circumstances. A discriminatory remark, even if not made directly in the context of an employment decision, or uttered by a non-decision-maker, may be relevant, circumstantial evidence of discrimination. This rejects the “stray remarks doctrine” previously upheld by courts.

• Prohibits the release-of-claims and non-disparagement agreements that are often slipped into contracts workers sign when accepting a job offer, or receiving a promotion, raise, or bonus. In many cases, workers unknowingly sign away their rights to bring harassment or discrimination claims to court or to speak out about sexual harassment and other workplace violations.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.comor our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, is the recipient of PABA’s Community Champion Award, and is aPresidential Awardee for Outstanding FilipinoOverseas in 2018.]