E-Blasts

Dowling Aaron, the Saqui Law Group Division (“DAI”) is proud to announce the recent hires of two excellent attorneys, Adrian Hoppes and Rebecca Schach. Adrian and Rebecca will be joining DAI’s Labor and Employment Team and will be working in DAI’s Sacramento office.

Adrian Hoppes has been representing employers and managers in state and federal litigation, and in the defense of Federal and State administrative complaints since 2012. Adrian first developed a passion for labor and employment law while working for PG&E for over a decade. While working for PG&E in its Human Resources and Labor Relations department she handled personnel matters ranging from wage/hour analysis, FMLA/ADA compliance, EEO investigations, and disputes regarding contract interpretation and negotiations with labor unions. With almost 20 years of combined Human Resources and legal experience, Adrian brings a keen understanding of the employment relationship with a practical approach to handling the complex legal requirements of California. As an attorney Adrian has provided litigation, advisory and compliance services to hundreds of clients operating in a vast array of industries, ranging from Agricultural and Industrial companies to small family owned and operated restaurants and in-home caregiver providers. Adrian is excited to join DAI’s Labor and Employment team and continue its proud tradition of providing excellent legal services to its clients.

Cal/OSHA released another heat advisory warning for Thursday and Friday, July 26 and 27, 2019 for parts of Merced, Madera, Fresno, Kings and Kern counties. Please read our previous eBlast discussing California’s high heat illness prevention standard and steps that employers must take to protect outdoor workers from potential heat illness here.

Additionally, employers are advised to review their Injury Illness Prevention Program and ensure that they have an effective written Heat Illness Prevention Plan in place and that their supervisors and employees are trained and knowledgeable about what steps are to be taken during periods of high heat to prevent heat illness.

 If you have any questions regarding your Heat Illness Prevention Plan please contact the experts at Dowling Aaron Incorporated, Saqui Law Group Division.

NLRB Strikes Arbitration Agreement that Does Not Explicitly Permit Access to the Board

Employers, it is time to revisit your arbitration agreements. On Tuesday, the National Labor Relations Board (“NLRB”) issued a unanimous decision striking an employer’s arbitration agreement on the basis that employees could reasonably construe the arbitration agreement to unlawfully restrict access to the Board and its processes.

Like many employers, Prime Healthcare Paradise Valley, LLC (“Prime Healthcare”) required their employees to sign arbitration agreements as a condition of their employment. The issue presented to the NLRB was that these arbitration agreements were very broadly worded and did not explicitly permit employees from filing charges with the NLRB regardless of the arbitration agreement as required under the National Labor Relations Act (“NLRA”). Rather, the arbitration agreements stated, “all claims or controversies for which a federal or state court would be authorized to grant relief” are subject to arbitration and included examples of such covered claims, including those related to wages, breach of contract, discrimination, and violations of any “federal, state or other governmental constitution, statute, ordinance, regulation or public policy.” Two employees filed unfair labor practice charges alleging the arbitration agreement interfered with their rights under the NLRA.

 Dynamex “ABC” Independent Contractor Test Applies Retroactively

On Thursday, the Ninth Circuit ruled that Dynamex Operation West, Inc., v. Superior Court., (“Dynamex”) the California Supreme Court landmark decision which made it significantly more difficult for employers to classify workers as independent contractor, applies retroactively.

As we previously reported here, in May of 2018 the California Supreme Court abandoned its previous multi-factor independent contractor standard that required a worker to demonstrate an employer had sufficient control to find that there is an employee-employer relationship. Rather, the California Supreme Court now embraces a standard that presumes all workers are employees instead of independent contractors, and places the burden on the employer classifying an individual as an independent contractor to establish that such classification is proper under the “ABC” test. As such, an employer now bears the burden that a worker satisfies all 3 factors of the “ABC” test in order to be properly classified as an independent contractor: A) the individual is free from the employer’s control and direction; B) the individual performs work that is outside the usual course of the employer’s business; and C) the individual has an independently established trade, occupation, or business.

As we previously reported, in conjunction with Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association, the Social Security Administration (“SSA”) began mailing Educational Correspondence (“EDCOR”) notifications to employers who submit at least one 2018 W-2 with a SSN mismatch or no-match. These notices differed from previous mismatch/no-match letters as they did not include names or SSNs. Instead, employers were only notified that they submitted W-2s with mismatched SSNs and the raw number of W-2 forms the employer submitted that do not match.

After many years of litigation, employer Lamps Plus successfully defended its arbitration agreement all the way to the U.S. Supreme Court (“SCOTUS”), when the Court’s conservative majority ruled that a court may not compel class-arbitration unless the parties’ arbitration agreement shows that the parties agreed to that process.

In the case at issue, Varela v. Lamps Plus an employee sued its employer, Lamps Plus, over a data breach issue where 1,300 employees’ tax information was released by a hacker. The employee sued on behalf of himself and other employees whose information was released. The employer sought to enforce its arbitration agreement with employee, arguing that the case should be compelled to individual arbitration—meaning that the employee could arbitrate his claim only. The District Court compelled the claim to arbitration, but authorized the employee to pursue the claims as a class representative—meaning that the case would proceed as a class-action in arbitration. The employer appealed, saying that the employee could not pursue a class claim in arbitration, and that only the employee’s individual claim should be pursued. The issue was heard by the Ninth Circuit, who agreed again with the employee that class treatment in arbitration was appropriate because the arbitration agreement was ambiguous on the issue of class arbitration.

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