California Supreme Court Determines Dynamex Applies Retroactively

As many of you know, the California Supreme Court decided the Dynamex case in April of 2018.  That case determined that the "ABC test" controlled whether a worker was properly classified as an employee or independent contractor.  To meet the test, the employer must prove that the worker 1.) is free from the hiring entity's control and direction; 2.) the worker performs work that is outside the usual course of the hiring entity's business; and 3.) the worker is customarily engaged in an independently…

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Coronavirus Sick Leave Law: What It Means for You

On March 19, 2020, the senate passed, and the president signed into law, the Families First Coronavirus Response Act.  The new law has many provisions that affect you as an employer.  The bill provides:  Expanded FMLA Coverage For School Closures—The bill dramatically expands the FMLA on an emergency basis.  Under the old law, the FMLA only applied to companies with 50 or more employees.  Under the revisions, the FMLA imposes leave requirements on any employer with less than 500 employees. …

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Supreme Court Decision: Off-Duty Time Compensable

In February, the California Supreme Court issued a ruling regarding compensation for off-duty time.  The case was brought by a class of Apple employees that claimed they were required to work off the clock.  Apple has a policy that, if an employee brings a bag to work, the employee must have a security guard or store manager search the bag prior to leaving at the end of their shift.  The employees had to clock-out prior to the search. Employees claimed that it…

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New Independent Contractor Requirements Now Apply Retroactively

The United States Court of Appeals for the Ninth Circuit held today that the landmark decision that redefined the analysis surrounding independent contractor classification, Dynamex Ops W. Inc. v. Superior Court, applies retroactively.  This means that wage claims alleging that employees were misclassified as independent contractors under Dynamex’s reasoning can seek four years of damages.  The Dynamex decision adopted the “ABC test” for determining whether workers are employees under California wage order laws. The stricter test requires the hiring entity…

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Restaurant Employee Handbooks: Why every restaurant should have one

The article featured in Location Matters by Lauren Bushman, Associate at TencerSherman Employee handbooks are like a good sunscreen, one generally does not realize the importance of protection until they get burned. Employment claims are on the rise and can be detrimental to a restaurateur’s company culture and business success. With the intense nature of the restaurant industry, including high employee turnover, minimal profit margin, and cutthroat competition, restaurateurs cannot afford employee lawsuits. The good news is that the risk of employee lawsuits…

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California Supreme Court Drastically Redefines Independent Contractor Requirements

After nearly two decades of litigation, the California Supreme Court pronounced a new standard for determining whether a worker is categorized as an employee or independent contractor. In this decision, delivery drivers who were once categorized as employees and later reclassified as independent contractors filed suit alleging they performed the same tasks despite their classification change. The new test is a short and sweet 3-prong standard, which makes it drastically more difficult for businesses to classify their works as independent contractors.…

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Sam Sherman Listed in 2018 San Diego Super Lawyers Magazine

TencerSherman is proud to announce that Sam Sherman was selected for the 2018 San Diego Super Lawyers list. Here's your chance to catch up on the latest happenings of excellent attorneys in your area with the release of the 2018 San Diego Super Lawyers Magazine. The digital version contains the entire print publication. To access the archive of the Super Lawyers Magazine digital editions, click here.

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California Supreme Court Grants PAGA Plaintiffs Right to Broad Discovery of Employee Contact Information

The California Supreme Court dealt another blow to employers defending wage and hour litigation in California by ruling that PAGA plaintiffs do not need to show good cause to justify broad discovery of the names and contact information of all potentially aggrieved employees at the outset of the case. In Williams v. Superior Court (Marshalls of California), the plaintiff filed a representative claim under the Private Attorneys General Act (“PAGA”) against Marshalls on behalf of all non-exempt California employees alleging various labor…

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Arbitration Waivers May Keep Employers Out of Labor Commissioner Hearings

Many employers require employees to sign agreements that waive their right to bring a case in state court and agree to bring any claims through arbitration. Such agreements are generally enforceable as long as they contain required language. The question in this case is whether these contracts are enforceable when an employee files a claim with the Labor Commissioner instead of in state court. Recently, an auto mechanic filed a wage claim for $100,000 with the California Labor Commissioner against his…

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Liability for Retaliation Claims Against an Employer Includes “Any Person”

The Ninth Circuit Court of Appeal recently held that an employer’s attorney could be liable for retaliation after he reported an undocumented employee in a wage and hour claim to the Immigration and Custom Enforcement agency. (Arias v. Raimondo (9th Cir. June 22, 2017, No. 15-16120), 2017 WL 2676771.) In Arias v. Raimondo, the employee, Arias, sued his former employer’s attorney, Raimondo, because the attorney reported Arias to ICE to take him into custody at his deposition in his wage and…

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