Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘California Supreme Court’

California court decision poses a major threat to Uber and Lyft: minimum wage laws

Tuesday, May 1st, 2018

The business model at Uber and other “gig economy” companies could take a big hit in California, thanks to a new state Supreme Court ruling—the companies might be forced to follow labor laws like paying the minimum wage. Currently, many companies classify their workers as independent contractors who aren’t eligible for a raft of legal protections, protections that cost employers money. But the California Supreme Court ruled that delivery drivers for Dynamex Operations West are eligible for minimum wage and overtime protections:

The ruling applies to disputes under state Industrial Welfare Commission orders that set standards for minimum wages and overtime payments required for all workers who are classified as employees, but not for independent contractors. Companies like Dynamex, as well as Uber and Lyft, have classified their drivers as contractors and argued that they have enough control over their working lives — setting their own hours, with the freedom to drive for other companies — to be called independent.

But the court said the company, to justify contractor status, must prove, first, that the worker is free, in everyday tasks, from the company’s “control and direction”; second, that the work is “outside the usual course of the hiring entity’s business”; and third, that the worker is regularly engaged in an independent occupation or business of the same type he or she is performing for the company.

For example, [Chief Justice Tani] Cantil-Sakauye said, a store that hires an outside plumber to fix a leak, or an electrician to install a new line, could consider them contractors. But a clothing manufacturer that hires seamstresses who work at home to make dresses that the company will sell has hired them to perform work in its usual line of business and must pay them as employees.

The ruling did not address other issues, such as payment of work expenses, workers’ compensation and unemployment benefits, which are covered by separate laws. But Kevin Ruf, a lawyer for about 300 Dynamex drivers who will now be allowed to pursue their case as a class action, said the court’s rationale should help workers seeking employee status overall.

This isn’t over—companies will fight this out case by case, spending huge amounts of money on lawyers to avoid having to pay their workers minimum wage and overtime (and other benefits and protections that might follow). But it’s a step in the right direction.

This blog was originally published at DailyKos on May 1, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at DailyKos.

Supreme Court Should Approve Policies that Will Provide Much-needed Relief to Immigrant Working Families

Wednesday, January 20th, 2016

Richard L. TrumkaWe applaud the Supreme Court’s decision to take up the DAPA and expanded DACA case, which will have profound consequences for our immigrant brothers and sisters who live and work every day under a cloud of fear, as well as for the state of racial and economic justice in our country. We are confident the court will reverse the decision of the 5th U.S. Circuit Court of Appeals and allow the Deferred Action for Parents of Americans and expanded Deferred Action for Childhood Arrivals policies to go into effect, affording millions of people the opportunity to apply for work authorization and temporary protection from deportation. We encourage the Department of Homeland Security to take all steps necessary to ensure these much-needed policies can be implemented as soon as possible after the court issues its decision this summer.

At a time when working people feel increasingly disposable and deportable, when corporations are allowed to profit from the mass imprisonment of people of color, when our government is rounding up refugee families from their beds at night, and when we are confronting at so many levels the racial bias deeply entrenched in our laws and their enforcement, the outcome of this case will have a significant impact on the direction our nation takes moving forward.

At heart, the question the Supreme Court will consider is whether our immigration enforcement regime will be allowed to take modest steps to begin to protect and empower hardworking people, or whether it will continue to serve as a tool to exclude and oppress.

Much is at stake in this case, but working people do not need a court ruling to tell them what is just. In the face of criminalization, exploitation and base attempts to sow division, we will continue to work in every community in the country to build what we believe is the only true antidote: solidarity.

This blog originally appeared in aflcio.org on January 19, 2016. Reprinted with permission.

Richard Trumka is the president of AFL-CIO, the largest organization of labor unions in the country.  He is an outspoken advocate for social and economic justice.  Trumka heads the labor movement’s efforts to create an economy based broadly on shared prosperity and to hold government and employers accountable to working families.

No free pass to discriminate against immigrant workers: Salas v. Sierra Chemical Co.

Friday, October 3rd, 2014

Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment.  Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.

This fear of retaliation is based in fact.  We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.

Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers.  Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.

Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.

In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).

The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.

In a careful decision, the California Supreme court balanced these two concerns.  It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees.  At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.

This decision demonstrates an understanding of the reality of the California workplace, which is  increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens.  It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.

Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them.  That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.

Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses.  But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.

This article originally appeared in CELA Voice on October 2, 2014. Reprinted with permission. http://celavoice.org/

Beaman[1]About the Author: Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.

Kish-Kevin-2011-04[1]

 

About the Author: Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.

“Stay Remarks” Showing Discriminatory Attitudes in the Workplace Can Be Important Evidence of Employer Discrimination

Thursday, August 12th, 2010

Patrick KitchinOn August 5, 2010, the California Supreme Court issued a unanimous decision concerning the type of evidence a worker can rely upon to prove an employer discriminated against him or her. The Court’s decision concerns the so-called “stray remarks doctrine.

Justice Sandra Day O’Connor coined the term in a 1989 U.S. Supreme Court decision, writing that “stray remarks” made by “non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process” are insufficient evidence of an employer’s discriminatory attitude. Without additional evidence of discrimination, she wrote, a gender discrimination claim can be and should be dismissed by the court before trial.

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, the worker presented evidence that a partner of the firm told her to “walk more femininely,” “talk more femininely,” “dress more femininely,” “wear make-up,” “have her hair styled,” and “wear jewelry” to improve her chances for partnership. Justice O’Connor concluded that though such “stray remarks” might constitute evidence of a discriminatory attitude in the workplace, they are not sufficient evidence of discrimination on their own. When combined with more direct kinds of evidence of discrimination, however, stray remarks evidence can tend to support a discrimination claim.

Since 1989, some federal courts have expanded the stay remarks doctrine substantially. In Hill v. Lockheed Martin, for example, the Fourth Circuit Court of Appeals ruled that remarks by non-decisionmakers that the worker was a “useless old lady” “who needed to retire” and was a “troubled old lady,” did not influence the decisional process directly and, therefore, were completely irrelevant to the worker’s discrimination claim.

In its August 5th decision, the California Supreme Court concluded that the wholesale rejection of evidence of stray remarks, as suggested by the Fourth Circuit, is improper. It explained that such evidence can tend to show discriminatory animus or attitudes within the workplace. Under California law, then, stray remarks are relevant and cannot be completely ignored by the trial courts in ruling on pre-trial motions for summary judgment.

While the California Supreme Court’s decision focuses on evidentiary issues and pretrial procedures, the importance of the decision for California workers is significant. Although a racial, sexual or age-based slur might not conclusively demonstrate employment discrimination, such stray remarks combined with other more direct evidence of discrimination (statistics, testimony, emails and the like) can be used to defeat a defendant’s motion for summary judgment before trial.

The California Supreme Court explained that “[T]he stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker.” Thus, stray remarks can constitute evidence of discriminatory animus. The Supreme Court of California found another federal appellate court’s position on the stray remarks doctrine persuasive. In Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, the Seventh Circuit Court of Appeals wrote: “If [the formal decision maker] acted as the conduit of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision maker] would not spare the company from liability.”

Thus, for example, discriminatory comments by a worker capable of influencing the actual decisionmakers can provide admissible evidence of discrimination by the employer.

This is good news for workers in California who often find it difficult to unearth more direct evidence of discrimination. While the California Supreme Court ultimately concluded that, on their own, inappropriate stray remarks by non-decisionmakers do not prove discrimination, its decision will permit workers to present evidence of stray remarks in the context of other discriminatory practices in the workplace.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

California Supreme Court Set To Address Workers’ Meal And Rest Break Rights

Thursday, May 27th, 2010

W-F BlogThe California Supreme Court is expected to render a decision in the Brinker v. Superior Court case later this year that will answer critical legal questions about the meal and rest break rights of hourly workers in California.  At issue in the case is when and under what circumstances workers are entitled under California law to rest and meal breaks.

Though the case was originally filed as a class action, and the appeal involved the trial court’s order granting class certification to a group of 5,500 restaurant workers, the Supreme Court’s decision will necessarily address questions that will have an impact on individual meal and rest break cases as well.  Commentators from across the political spectrum agree Brinker is one of the most important labor cases pending before the California Supreme Court today.

The case is important to workers because the Court of Appeal’s decision severely limited the rights of workers to obtain damages for missed meal and rest breaks.  The Court’s conclusions of law were broad-ranging and quite friendly to employers.  It held:

(1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.

These conclusions, if adopted as state law by the Supreme Court, would effectively deny workers the right to use class actions to recover wages for missed meal and rest breaks in California.  Further, the adoption of these conclusions by California’s highest court would make it harder than ever before for individual workers to obtain relief for missed meal and rest breaks.

The restaurant workers have asked the Supreme Court to decide a number of key issues of law:

•    Does a California employer need to relieve employees of all duties so they can take meal and rest breaks or simply make them “available”?
•    Can the employer simply make meal and rest breaks available to their employees at any time during a shift, or must the rest and meal break be provided within a certain number of hours of beginning a work shift?
•    When and how frequently must an employer provide meal and rest breaks to its employees?
•    In wage and hour class action cases, can workers rely on statistical data to show a class-wide pattern of meal and rest break violations or are the factual issues always too individualized for class treatment?

The answers to these questions are of great interest to labor groups and business advocates alike, and battle lines were quickly drawn. A mere three days after the Court of Appeal issued its decision in Brinker, the California Labor Commissioner, under Republican Governor Arnold Schwarzenegger, issued a memorandum entitled “Binding Court Ruling on Meal and Rest Period Requirements” instructing all California Division of Labor Standards Enforcement (“DLSE”) employees to adopt the perspective laid out in the Brinker appellate decision.

The Labor Commissioner virtually ignored other California appellate decisions more favorable to workers’ rights, and instead relied on federal court decisions interpreting California’s meal and rest break laws.  In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 94, for example, California’s Third District Court of Appeal had decided that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty [for meal breaks].”

The Third District’s decision in Cicairos was directly supported by a prior interpretation of the law issued during Governor Gray Davis’s administration by the DLSE.

Almost immediately after the Labor Commissioner issued its binding memorandum, the California Labor Federation responded with biting criticism of Labor Commissioner Angela Bradstreet’s directive.  “The Federation is deeply concerned that your hasty publication of this unbalanced and flawed analysis will undermine California workers’ rights to meal and rest breaks.”

The Labor Commissioner has since withdrawn its binding memorandum, replacing it with one that still plainly sides with the Court of Appeal’s restrictive reading of workers’ meal and rest break rights.  The Schwarzenegger administration is clearly hopeful the Supreme Court will uphold the severe restrictions set out by the appellate court.

A decision in Brinker will have an immediate impact on pending lawsuits, particularly meal and rest break class actions.  Whether the Supreme Court ultimately backs the employer-friendly logic of the decision under review or adopts the worker protections set out in Cicairos, attorneys representing both employees and employers undoubtedly will have clearer guidance on the law.

Finally, many employee rights advocates are certain, or at least very hopeful, that the California Supreme Court’s decision will not result in a substantial impairment of an individual employee’s right to meal and rest breaks.  The larger and more immediate concern is that Brinker could seriously impair the ability of workers to sue their employer collectively for failing to provide appropriate meal and rest breaks.  If the Supreme Court makes it more difficult to sue on a class-wide basis for meal and rest break violations, most violations will go unchallenged in court.  Labor advocates are counting on the Supreme Court to render a decision that protects the rights of California workers to use the class action process to vindicate these important wage and hour rights.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California.  He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999.  According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

Harassment for All

Monday, November 16th, 2009

Image: Bob RosnerIn a landmark decision, California’s Supreme Court held that two women who were not involved in a workplace affair had grounds to sue because the women who were having affairs with the boss received preferential treatment.

Prison and party don’t normally go together in my mind. But after reading about the workplace where the harassment took place, California’s Valley State Prison for Women, I’ll have to think again about what goes on behind those guard gates and razor wire.

Let me explain. Two Valley State women employees sued because they claimed that the warden promoted women who he was romantically involved with over women who were not sleeping with him. This is where the case gets interesting. The warden wasn’t having one affair. He wasn’t sleeping with two women at the same time. He managed to maintain THREE concurrent affairs. Actually the CNN description didn’t even stop there; its report said that he had “at least” three affairs.

This guy gives new meaning to the phrase “working around the clock.” I’m a guy and the thought of maintaining three affairs just wears me out. Then again, just being a warden, I thought, would manage to occupy your full attention too.

This case also is a great example of the law of “unintended consequences.” This is where we are so focused on what we are doing, that we fail to see its unintended results on the people around us. After reading much of the commentary surrounding this decision, there was a common thread that this case would obviously be overturned by the right coast Supreme Court (isn’t it interesting how the coast of both so completely aligns with their political affiliations?).

Whether the case is overturned or not, it clearly shows the danger of putting all your eggs in the workplace basket. Many of us spend a huge amount of time at work, we make all of our friends at work, we derive most of the meaning for our lives from work and yes, we often date the people at work.

This case points out that our actions, especially dating, can have an impact far beyond us. It’s like when you throw a rock into a calm lake and the wake generated flows in all directions. Relationships not only make work complicated for the people involved, it makes things complicated for everyone that they come into contact with.

What’s so ironic is that so many people seem to think that they are like Casper the Friendly Ghost at work—invisible. Nothing could be further from the truth. There is only one workplace dogma that I believe—no one can keep a secret indefinitely at work. And if you are a boss, well the odds go down even further. Because, whether you like it or not, every person who works for you is always watching everything that you do or say.

So according to the California Supreme Court, if you are a supervisor who dates at work, don’t be surprised if you are suddenly greeted by an orgy of lawsuits.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.

California Defamation Law: Libel and Slander that Injures Professional Reputation at Workplace

Tuesday, November 10th, 2009

Imaeg: Arkady-ItkinThis article originally appeared in My Employment Lawyer on November 8, 2009. Reprinted with permission from the author.

One of the powerful but also somewhat underused claims that employees who are falsely accused of any kind of misconduct at workplace have is a claim for defamation (libel and slander). Proving a defamation claim in court has it’s own unique challenges, but the law imposes significant liability for making false statements that injure one’s professional reputation as it has been recognizing the harm that defamatory language can make to one’s professional career.

One of the great California Supreme Court cases on the issue of defamation in a professional setting is Slaughter v. Friedman 32 Cal.3d 149 (1982). In that case, an oral surgeon brought a libel lawsuit against a private medical insurance company. The surgeon submitted a claim for certain dental services he provided to one of his patients, which was denied and which was accompanied with the letter that was cc’ed to his patients, and stating that the dental work done was “unnecessary” and that the surgeon was “overcharging.”

The Court began its analysis with reiterating the well established principle of the broad reach of the defamation claim: libel includes almost any language which, upon its face, has a natural tendency to injure a person’s reputation.

The defendant insurance company persuasively argued that the term “unnecessary” cannot be consider libel because it’s a statement of opinion and not fact (to be actionable, a defamatory statement must be a statement of “fact.”) The Court disagreed and drew an interesting distinction, holding that although accusations of “unnecessary” work when made by laymen might indeed be mere opinions, similar accusations by professional dental plan administrators carry a ring of authenticity and reasonably might be understood as being based on fact.

This decision is a significant note of caution to professional entities who render and publish their opinions about someone’s qualifications or quality work, as those opinions might be considered by courts as statements of facts because of the professional authority of the source of that publication.

About the Author: Arkady Itkin is a California Employment and Injury Attorney representing employee, small businesses, and injured persons in San Francisco, Sacramento, and surrounding counties in Northern California. He is a member of San Francisco Trial Lawyers Association, California Employment Lawyers Association and the Association of Consumer Attorneys of California. Arkady’s website is www.arkadylaw.com.

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