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Wednesday, September 2, 2015

Garcia v. Seacon Logix: Court Affirms Decision that Truck Drivers Were Employees, Not Independent Contractors

In Garcia v. Seacon Logix (7/16/15, pub. 7/30/15) --- Cal.App.4th ---, the plaintiffs were truck drivers who were classified as independent contractors, rather than employees. They filed a class action under Labor Code section 2802, alleging that they should have been classified as employees and that their putative employer, Seacon, should not have deducted truck lease payments or insurance premiums from their paychecks. The court found for the plaintiffs and entered judgment in their favor. Seacon appealed, arguing that the trial court's decision was not supported by substantial evidence and that the damage award was excessive. The Court of Appeal affirmed, holding as follows: 

Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 (discussed here) states the test for whether one is an employee or independent contractor. [Note that this issue is before the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (Lee) (discussed here).]

The plaintiffs' testimony proved that Seacon controlled the manner and means of their work. Seacon told them when to be at work, approved or disapproved absences, determined their delivery assignments, and monitored their delivery progress. The plaintiffs could not decline assignments, work for any other delivery companies, or use their trucks for any other purpose. The agreements signed by the parties gave the plaintiffs control of their work as independent contractors, but the facts contradicted the agreements, and the agreements were not dispositive.

The secondary factors also demonstrated that the plaintiffs were employees. Seacon terminated two of the plaintiffs without notice. Seacon was in the business of transporting cargo, and the plaintiffs were an integral part of that business. The plaintiffs worked under Seacon's supervision. Seacon owned the trucks and controlled their use. Seacon paid the plaintiffs per delivery, which supported independent contractor status, but the court found this factor not dispositive.

Seacon forfeited its argument that the court awarded excessive damages.

The opinion is available here.

Tuesday, September 1, 2015

New Law: Civil Code sections 52.4 and 52.45 Now Protect Individuals from Violence Based on Gender, Gender Identity, Gender Expression, and Sexual Orientation

Just a quick note on AB 830, which expands the protections for people based on gender identity, gender expression, and sexual orientation. This is not an employment law, but many will find it of interest.

Civil Code section 52.4 allows a person who has been subjected to gender violence to bring a civil action for damages against any responsible party. The law defines gender violence as an act of violence committed "at least in part based on the gender of the victim," or a "physical intrusion or physical invasion of a sexual nature under coercive conditions."

AB 830 amends section 52.4 to provide that "gender" under that section has the same meaning as in the Unruh Civil Rights Act, Cal. Civ. Code 51. The Unruh Act protects people from discrimination in all business establishments on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation." "Sex" includes gender, gender identity, and gender expression. Gender expression means a person’s "gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth."

In other words, section 52.4 now protects individuals from violence based on gender, gender identity, and gender expression.

AB 830 also adds Civil Code section 52.45, which allows a person who has been subjected to sexual orientation violence to bring a civil action for damages against any responsible party.

The text of AB 830 is available here.

Monday, August 31, 2015

New Law: New Labor Code Section 2500 Protects Grocery Workers' Jobs on Change of Ownership

Just a quick word regarding AB 359, which provides protections to grocery workers upon a change of ownership of a grocery. With certain exceptions, upon the change of control of a grocery, the successor grocery employer must retain eligible grocery workers for a 90-day period, may not discharge those workers without cause during that period, and, upon the close of that period, must consider offering continued employment to those workers. Cal. Labor Code section 2500 et seq.


The text of AB 359 is here

Yocupicio v. PAE Group: Ninth Circuit Addresses CAFA Jurisdiction in Case Raising Both Class and PAGA Claims

In Yocupicio v. PAE Group, LLC, ___ F.3d ___ (9th Cir. 7/30/15), the plaintiff filed a class and PAGA representative action alleging a number of wage and hour violations. The defendants removed the case under the Class Action Fairness Act (CAFA), and the district court denied the plaintiff's motion to remand. The plaintiff appealed, and the Ninth Circuit reversed, holding as follows:

CAFA jurisdiction requires the following: a class of more than 100 members, "minimal diversity" among the parties, and an amount in controversy in excess of $5 million. The court found no question that the class claims would "satisfy CAFA’s numerosity and minimal diversity requirements," but the case did not satisfy the amount in controversy requirement. The value of the class claims alone did not satisfy the $5 million requirement, and the district court erred in adding in the value of the PAGA claims to make up the difference. Only class claims count toward the $5 million requirement, and PAGA claims are not class claims. The Court concluded: 
Where a plaintiff files an action containing class claims as well as non-class claims, and the class claims do not meet the CAFA amount-in-controversy requirement while the nonclass claims, standing alone, do not meet diversity of citizenship jurisdiction requirements, the amount involved in the non-class claims cannot be used to satisfy the CAFA jurisdictional amount, and the CAFA diversity provisions cannot be invoked to give the district court jurisdiction over the non-class claims. 
The opinion is available here

Friday, August 21, 2015

Williams v. Superior Court: Cal. Supreme Court Grants Review of PAGA Incremental Discovery Ruling

In Williams v. Superior Court (Marshalls of CA, LLC) (5/15/15) --- Cal.App.4th --- (discussed here), the Court of Appeal held that in a PAGA action, the trial court may require the plaintiff to proceed with discovery incrementally, rather than receiving the names and contact information of allegedly aggrieved employees at the start of the litigation.

The California Supreme Court granted review on August 19, 2015, stating the issues as follows: 

(1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  
(2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th
Williams v. Superior Court is case no. S227228, and the Court's web page for it is here.

Wednesday, August 19, 2015

France v. Johnson: Plaintiff Raises Genuine Issue in Age Discrimination Case by Introducing Evidence that Person Involved in Promotion Decision Made Discriminatory Statements and Repeatedly Raised Question of Retirement with Him

In France v. Johnson, ___ F.3d ___ (8/3/15), a border patrol agent sued the Secretary of the Department of Homeland Security (DHS), alleging that DHS violated the Age Discrimination in Employment Act (ADEA) by refusing to promote him because of his age. The district court granted DHS's motion for summary judgment, finding that although France established a prima facie case of age discrimination, he failed to raise a genuine dispute of material fact on the agency's nondiscriminatory reasons for not promoting him. France appealed, and the Ninth Circuit reversed, holding as follows:

Where a plaintiff introduces direct evidence of a discriminatory motive, the McDonnell Douglas burden-shifting analysis does not apply on summary judgment. Although France introduced "some direct evidence and some circumstantial evidence" of discriminatory intent, the Court found it "most appropriate" to use McDonnell Douglas. 
In a failure-to-promote case, a plaintiff may establish a prima facie case of discrimination in violation of the ADEA by producing evidence that he or she was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. 
To determine whether the person promoted is "substantially younger" than the plaintiff, an age difference of ten or more years is presumed substantial, and an age difference of less than ten years is presumed insubstantial. A plaintiff can rebut the presumption by showing that the employer considered his or her age to be "significant." Evidence, inter alia, that one of the decisionmakers expressed a preference for younger employees was sufficient to rebut the presumption. France established a prima facie case of discrimination.

DHS established legitimate business reasons for rejecting France, so the Court turned to the final element of the test: the plaintiff's obligation to raise a genuine dispute of material fact as to pretext.

Because "the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record," "it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion." 
France raised genuine issues sufficient to defeat summary judgment by introducing evidence that one of the decisionmakers - even if not the chief decisionmaker - made discriminatory statements and repeatedly raised the issue of retirement with him. 

The opinion is available here

Tuesday, August 18, 2015

Governor Brown Signs Urgency Legislation Amending Sick Leave Law

Last September, Governor Brown signed California’s new sick leave law, the Healthy Workplaces, Healthy Families Act, or HWHFA. (Quite a name. Rolls right off the tongue.) With limited exceptions, the HWHFA requires employers to provide employees with paid sick leave, which employees can use to care for themselves or their family members. Unfortunately, whether you support the idea of giving employees paid sick leave or not, the law was not very clear. With the law set to kick in on July 15, many employers were still guessing as to how to implement it.

On July 13, with two days to spare, Governor Brown signed legislation to clarify the law. Cal. Labor Code sections 245.5, 246, and 247.5. 

As just one example, the original law provided that employees could accrue sick leave at a rate of not less than one hour of leave for every 30 hours worked, or employers could provide a lump sum of three days or 24 hours at the start of each year. But what about employers whose existing sick leave or paid time off (PTO) policies accrued leave at a different rate? Under the amended law, employers may allow sick leave to accrue a basis other than one hour for each 30 hours worked, as long as (1) the sick leave accrues on a regular basis and (2) the employee will accrue at least 24 hours of sick leave by the 120th calendar day of employment. 

The law amending the statutes, AB 304, was designated as urgency legislation, to go into effect immediately. It is available here