By: James Kachmar

On September 14, 2011, the California Legislature enrolled Senate Bill 459 and presented it to Governor Jerry Brown for signature. (As of the time of this post, the Governor has still not acted on SB 459.)

SB 459 was introduced by Senator Ellen Corbett to address the issue of misclassification of employees as independent contractors. Under California law, there is extensive statutory provisions that address the employee/employer relationship and provide numerous protections to employees in areas such as minimum wage, overtime and working conditions. SB 459 was introduced to prevent the misclassification of employees as independent contractors so that “true” employees could receive the protections of these statutes. SB 459 would subject employers to civil penalties of up to $25,000 per violation in the event that an employer willfully misclassifies an employee as an independent contractor. SB 459 also provides employees with a private cause of action if they suffer actual harm.

Continue Reading Legislative Alert: Employee Misclassification Bill Sent to Governor

By: Chuck Post

Over the last year, Weintraub Genshlea Chediak Tobin & Tobin has tripled the size of its employment law department. In addition to enhancing the services we can provide to our clients, this growth has allowed us to continue presenting our quality seminars and maintaining our Labor and Employment Law Blog. Our results have paid off. We are pleased to announce that LexisNexis has ranked our blog as one of the Top 25 employment and labor law blogs in the nation for 2011. We are honored and proud to receive this recognition given the number of other high quality labor and employment law blogs out in the blogosphere.

Voting is now under way to determine the nation’s top (#1) employment and labor law blog for 2011. If you have enjoyed reading the commentary and information we regularly provide on our blog, please take the time to vote for “The Labor and Employment Law Blog” as the Top Blog of 2011 by clicking here.

We look forward to continuing to provide you with commentary and information about developing employment and labor issues in the years to come. Thank you.

By: Susan E. Kirkgaard

Employment claims of discrimination based upon national origin have risen over 65% since 1997, according to the EEOC. This statistic becomes even more striking when one considers that discrimination claims in general rose only 20% in the past ten years. Recent EEOC decisions present the ongoing trap for the unwary – if an employee or job applicant is treated less favorably because of language, accent or ethnic background, the employee may have a claim for national origin discrimination.

In California, the workforce is extremely diverse – according to the U.S. Census, 39% of people in California speak a language other than English at home. Even going back to 2002, 28% of California residents then were foreign born. That number has increased to date. So what does that mean for California employers? Last September the EEOC accused supervisors at an Oxnard flower wholesaler of harassment laced with national-origin bias, including such remarks as Mexican women didn’t “know their place.” (EEOC v. Cyma Orchids, Inc., No. 10-7122 (C.D. Cal. complaint filed Sept. 23, 2010).) Use of such language should be clearly off limits – training and supervision of managerial staff is key to curtailing this discriminatory conduct and creating an environment where such language would not be tolerated. 

Continue Reading National Origin Discrimination Claims on the Rise!

Beth West, Board Chair of the Sacramento Employer’s Advisory Council, invites you to attend the SEAC’s all-day seminar, “From Twitter to Facebook: Avoiding The Risks of Today’s High-Tech Workplace,” at the Holiday Inn Capitol Plaza on October 24th, 2011.

Continue Reading Join Weintraub attorney and SEAC Board Chair, Beth West, at the SEAC’s full-day fall seminar “From Twitter to Facebook: Avoiding the Risks of Today’s High-Tech Workplace”

By: Scott M. Plamondon

[UPDATE: Since this article was posted, the Senate Appropriations Committee suspended AB 889. We will continue to monitor the progress of this bill.]

For many couples in California, a night on the town is a welcomed break from parenting responsibilities, and an opportunity to become reacquainted with one another.  The routine of preparing for a night on the town generally involves making dinner reservations, purchasing movie tickets, and arranging for a babysitter to come to the family home for the evening. As a result of a bill currently before the California legislature, however, this simple routine may become far more complicated, and fraught with danger.

Assembly Bill 889 recently cleared the state assembly, and is expected to pass with the overwhelming support of the legislature. Under AB 889, by hiring a babysitter for your night on the town you may be considered an “employer,” and thereby obligated to pay the babysitter at least minimum wage and provide workers’ compensation benefits. As an employer, you also would be required to provide meal and rest breaks, so you may need to hire a second babysitter to watch the kids while the first sitter is on a mandatory thirty- minute meal break. Should your night on the town run long, you may even be liable to the babysitter for overtime compensation. Apparently, your night on the town is about to become a lot more complicated and expensive.

Although much of the discussion surrounding AB 889 relates to its impact on the ability to hire a babysitter, the effect of this legislation is potentially more broad. If passed, the legislation would apply to all domestic work employees, and cover “people performing services related to the care of persons in private households or maintenance of private households or their premises.” Accordingly, the reach of this legislation may go far beyond personal caregivers such as babysitters, and likely also will apply to individuals such as your gardener, handyman, or that friend who stays at your house and feeds your cat while you are on vacation. 

Failure to comply with AB 889’s requirements may result in civil liability as the legislation gives rise to a private cause of action by any domestic work employee who believes he or she has not been afforded the rights granted to him or her under this legislation. Further, because the failure to secure workers’ compensation insurance is a misdemeanor, violation of AB 889 could result in criminal prosecution. Graciously, AB 889 does not apply to domestic work employees under the age of 18, so hiring the neighborhood kids to mow your lawn appears to remain a viable option, and thus far, has not been deemed exploitative child labor.

We will continue to monitor the progress of this legislation, and post additional updates and analysis as it makes its way through the state legislature.