By: Meagan D. Christiansen

The Third Appellate District for the California Court of Appeals recently issued a decision that provides hope for those employers who unknowingly hire undocumented workers throughout California. In Salas v. Sierra Chemical Co., the court used the after-acquired evidence and unclean hands doctrines to bar Salas’ Complaint, ruling that undocumented workers are not entitled to recourse on a wrongful failure to hire claim, where they misrepresent their lawful ability to work in the first place.

Relevant Facts:

Vicente Salas was a seasonal worker at Sierra Chemical, a swimming pool chemical business. In 2006, he injured his back while working. After returning to work for a short time on modified duty, he reinjured his back when he was re-assigned to his regular duties. Following this injury, he brought a workers’ compensation claim against the company. In December 2006, Salas was laid off as part of Sierra Chemical’s annual reduction. In 2007 Sierra Chemical contacted Salas, informing him that he could return to work, provided he could establish he had received a medical release. Salas could not produce such a release and was precluded from returning pursuant to Sierra Chemical’s policies.
Continue Reading The California Court of Appeals Limits the Remedies for Undocumented Workers

The California Supreme Court Confirms that Companies May Delegate Some Workplace Safety Obligations to Independent Contractors

By: Lizbeth V. West, Esq.

On August 22, 2011, the California Supreme Court issued its decision in Seabright Insurance Company v. US Airways, Inc. The issue before the Court was whether the Privette rule applies when the party that hired an independent contractor (the “Hirer” or “Principal”) failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. The Privette rule essentially provides that when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1993) 5 Cal.4th 689.)

Relevant Facts from the Seabright Case.

US Airways uses a conveyor to move luggage at San Francisco International Airport. The airport is the actual owner of the conveyor, but US Airways uses it under a permit and has responsibility for its maintenance. US Airways hired an independent contractor, Lloyd W. Aubry Co. (“Aubry”), to maintain and repair the conveyor. US Airways neither directed nor had its employees participate in Aubry‘s work.
Continue Reading Who Is Liable When an Employee of an Independent Contractor Is Injured Due to a Cal-OSHA Violation?

As the California Legislature reconvenes this week from its summer recess, it will be poised to advance bills that could, if enacted, impact the workplace.  Among them is AB 22, which would prohibit employers, except certain financial institutions, from obtaining a consumer credit report for employment purposes.  If AB 22 becomes law, employers would be able to obtain such reports only if the information sought is substantially job-related and pertains to a managerial or other sensitive position.

Under AB 22, information would be substantially job-related if the person for whom the report is sought would have access to the employer’s confidential information, money, or assets.  Likewise, the position would be a sensitive one if the information contained in the report is required by law to be disclosed or to be obtained by the employer. 

Continue Reading New Rules Considered for Employment-Related Credit Checks in California

Almost every employer offers some form of vacation leave to its employees. Some employers, following the lead of academia, also offer long-term employees sabbatical leaves so that they can “recharge their batteries” and hopefully return to work more productive and creative.

Employers must ensure that they have proper policies in place in characterizing sabbatical leave to avoid it from being considered as vacation leave. The difference is important: Vacation leave that has been earned but not used must be paid out at the time the employee’s employment ends; whereas, sabbatical leave does not.

Continue Reading Employers Beware! Vacation v. Sabbatical Leaves

Labor Code section 2810 was enacted by the California Legislature in 2004. The primary provision of section 2810 prohibits a party such as an employer from contracting for certain types of services, including construction services if that party knows or should know the contract “does not include funds sufficient to allow the contractor to comply with all applicable local, state and federal laws or regulations governing the labor or services to be provided.” It also provides a private cause of action in favor of employees “aggrieved” by any violations. 

Section 2810 was enacted to address “wide spread subminimum wages and working conditions” that existed primarily in construction, janitorial, security and garment industries at the time. In Castillo v. Toll Bros., Inc. (decided July 28, 2011), a California appellate court addressed the provisions of section 2810 for apparently the first time. Toll Bros. was the general contractor on several construction projects and was later sued by employees of subcontractors alleging violations of wage and hour laws, including section 2810. The employees argued that Toll Bros., in bidding the projects, did not include sufficient funds to the subcontractors that resulted in the claimed wage and hour violations.

Continue Reading LAW ALERT: “Minimizing” Employer Liability Under Labor Code §2810