New Independent Contractor Test Could be Game Changer

The California Supreme Court recently published an opinion that describes a new independent contractor test that is broader than the current independent contractor test.  The “Borello” multi-factor test has been applied for decades, and this new test makes it harder for businesses to properly classify a worker as an independent contractor. This opinion will affect many businesses that hire independent contractors within the State of California. The main take away from this opinion, Dynamex Operations W. v. Super. Ct., Cal. is this: There is a new independent contractor test for purposes of the obligations imposed by a wage order. Here is a breakdown to help understand the preceding statement: What are wage orders? In California, employment laws are spelled out in different places, including statutes, case law, and wage orders. This case specifically addresses the obligations that are imposed on employers by the wage orders that apply to different industries. These wage orders address issues such as the payment of wages (minimum wage), regulating meal and rest breaks, and the number of hours worked (overtime pay), for example. Since these wage … Continue reading

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Tip Pools – Law Changes (Again)

Two years ago, the Ninth Circuit held that employers may not share tips from tip pools to back of the house staff who aren’t in the “chain of service.”  Last month, this rule was revised by federal law.  This means that California employers in the restaurant, hotel, and other service industries where tips are common place, may now distribute tips to those who were previously excluded, such as cooks and dishwashers.  This is a welcome change that many of my clients who own restaurants and hotels believe is the fairer rule. Below is a recap on what this means for California employers: Tip pooling policies may now provide that back of the house employees can share in  tip pools. This means that tip pooling policies may now require tip pools to be distributed not only to bussers but also to cooks and dishwashers, for example.  This practice was prohibited in the last 2 years. Certain employees are still prohibited from being paid from tip pools. Owners, managers, or supervisors of the business may not share in tip pools.  Employers should … Continue reading

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Defamation Lawsuit and Online Reviews

Your business may have an entry at online platforms such as Yelp and Glassdoor (or Avvo for attorneys).  You may have even used it to write reviews, both positive and negative, yourself.  These online review sites generally provide useful information while some posts are obviously angry rants by someone who has a bone to pick, a personal vendetta, or posted by a business competitor in some instances.  The veil of anonymity on the internet allows many people to say things they would never say in public or if their names and faces were attached the statement.  Thus, it is not uncommon for people to make blatantly false statements online that often times spells financial or reputational ruin to the recipient. One legal remedy that businesses and individuals may have to combat these false statements is to bring a defamation lawsuit against the person who made the false statements.  However, it bears noting that not all false statements are defamatory and California law has specific requirements in order for someone to win a defamation lawsuit. What is defamation? If you’ve ever … Continue reading

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Overtime Pay and Flat Rate Bonuses

Unpaid overtime is one of the most common wage and hour claims against employers and proper calculation of overtime pay can be extremely confusing. Employers often want to incentivize employees with bonuses, but unwittingly create increased exposure for failure to correctly pay overtime. An example of how incentivizing employees could blow up in an employer’s face is the recent Supreme Court decision in Alvarado v. Dart Container Corporation of California. Defendant Dart Container is a manufacturer of food service products. Plaintiff Hector Alvarado was employed as a warehouse associate who was paid on an hourly basis and who, in addition to his normal hourly wages, received an “attendance bonus” of $15 per day that he was scheduled to, and did work, on a weekend day. He received the $15 flat rate bonus regardless of whether he merely completed the shift or exceeded the shift and worked overtime hours. The gist of the dispute was this: How to calculate the regular rate of pay for purposes of calculating the overtime pay rate (generally, 1.5 times the regular rate of pay)? The … Continue reading

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Severance Pay – 3 Things to Know

I’ve been on both sides of the negotiation table when it comes to severance pay.  I have drafted and negotiated them on behalf of companies as well as reviewed and negotiated them on behalf of departing employees.  This experience allowed me to understand the value of providing an employee with severance pay from both perspectives. Below are the top 3 things you should understand about severance pay.  This information is applicable to both an employer who may want to offer severance pay to an employee at termination as well as an employee who was offered severance pay along with a multi-page agreement to sign, The law does not require payment of severance unless there is a contractual obligation. At the time of employment, employers sometimes promise to give an executive level or other key employee severance pay should the employment relationship end, usually without cause, and under certain circumstances.  These circumstances may be the business’s closing or change in ownership, reductions in force, etc.  The promise of severance pay is usually offered as an extra incentive to entice top talent.  … Continue reading

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New Law 2018 –Immigration Enforcement

Immigration was a hot topic this year and starting January 1, 2018, employers will see increased obligations as they relate to employees’ immigration status.  Earlier this month, Governor Brown signed AB 450 into law. Beginning January 1, 2018, employers will have the following obligations as they relate to immigration enforcement agents and the workplace: 1. No access without a warrant: Employers, and others acting on their behalf, may not voluntarily consent to immigration enforcement agents entering nonpublic areas of a place of labor without a warrant. For example, if you own a restaurant, immigration enforcement agents are free to enter the dining room but may not enter the kitchen or back office without a warrant permitting them to do so. Penalties for violating this requirement are $2,000 to $5,000 for the first violating incident and $5,000 to $10,000 for each subsequent violation. 2. No inspection of records without warrant or subpoena: Employers, and others acting on their behalf, may not voluntarily provide immigration enforcement agents the ability to access, review, or obtain the employer’s employee records without a subpoena or … Continue reading

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Emoji and Deciphering Intent in the Digital Age

[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.] An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them. What Are Emoji? Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”).  Frequently Asked Questions: Emoji and Pictographs, … Continue reading

In: California Civil Litigation, Contracts, Employment Law, Uncategorized | Leave a comment

Biometrics and the Fingerprinting Time Clocks

Employees sued a national supermarket chain alleging that the employer violated the Illinois Biometric Information Privacy Act (BIPA) when it failed to satisfy the notice requirements for obtaining and keeping employee fingerprints used for timekeeping purposes.  The potential damages are significant, especially for bigger employers.  Under BIPA, a prevailing party may recover the greater of actual damages or $1,000 for negligent violations or $5,000 for reckless or intentional violations, plus attorney’s fees and costs. As the use of biometric data like fingerprints and thumbprints for clocking in and out grows in popularity so does the potential for liability.  Employers who use biometrics for timekeeping should be aware of the laws regulating the use of biometrics in each and every state where you operate.  For example, Texas has a similar law to BIPA and other states like Alaska, Montana, New Hampshire and Washington are considering bills similar to BIPA. What about California? California employers will be pleased to learn that California does not have the same notice requirement as BIPA.  However, California employers who require the submission of fingerprints and/or photographs … Continue reading

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3 Strategies to Increase Your Business Profits

Many businesses recently reviewed their profit and loss statements and took a closer look at the business’s profitability. This analysis usually prompts the question “how to increase my business profits?” Although this question could only be answered after becoming familiar with your particular business, below are 3 areas where small changes, if done right, could increase your profitability. Decreasing Bad Debt If your business model does not require customers to pay for products or services in advance, collecting on unpaid invoices is likely something you are all too familiar with. However, collection itself comes at a cost to your business. Not being able to recoup that collection cost limits most businesses’ incentive to pursue collection, rightfully seeing it as throwing good money after bad. You can tip the collection scale in your favor. The default rule that each party bears their own attorney’s fees may be modified by statute or by contract. That means that where the law does not provide for recovery of attorney’s fees, you and your customers could mutually agree that if you and your customer find … Continue reading

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What Lawsuits and Disneyland Have In Common: The Emotional Costs of a Lawsuit

Whether you came to the decision to look for an attorney because you’ve been served with a lawsuit and have no choice but to defend yourself, or if you have reached an impasse in a dispute and have no choice but to say “see you in court,” what happens after this point is likely a mystery for you. If that’s the case, this is what a lawsuit looks like. But there’s also an emotional part of a lawsuit. Therefore, in addition to the obvious considerations of finding a capable attorney that you like and trust and the financial costs, you should also prepare for the emotional costs of a lawsuit. Since Disneyland’s just up the freeway, I’ll liken it to a day at Disneyland. It’s a Long Process If you’re traveling into town specifically to visit Disneyland with the kids, you expect to get there when the park opens, stay for the parade and fireworks, and even until the park closes. You may expect to do that for 3 days in a row. Why? The Lines are Long If Disneyland … Continue reading

In: Anatomy of a Lawsuit, California Civil Litigation, Hiring a Lawyer, Uncategorized | Leave a comment
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