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Thursday
May242018

FAA and NLRA: Can't We All Just Get Along?

Lawyer for EmployersEmployment Defense

 

by Tal Burnovski Yeyni

818-907-3224

 

On Monday, the U.S. Supreme Court issued a long-awaited decision confirming the enforceability of class action waivers in employment arbitration agreements.

The background: 

As previously written, in 2016 the Ninth Circuit held that class action waivers in employment arbitration agreements were unenforceable. The decision created a circuit split with the Seventh Circuit aligning with the Ninth. The Second, Fifth and Eighth Circuits however, have been validating class action waivers. Predictably, the matter was brought before the U.S. Supreme Court to “clear the confusion.”

In essence, the employees argued the National Labor Relations Act (NLRA) – which provides employees the right to act together and unionize – invalidates class and collective action waivers in arbitration agreements.  

The Supreme Court disagreed and held the class and collective action waivers are enforceable. Among other reasons, the Supreme Court opined there was no congressional intent for the NLRA to repeal the right to arbitrate under the Federal Arbitration Act and the NLRA does not include the right to engage in class action proceedings – due to the fact that when the NLRA was adopted class action proceedings “were hardly known”.

For now, employers can include class action waivers in arbitration agreements. There are many pros and cons for arbitration that employers should consider very carefully.

California employers are further advised that not all collective proceedings can be waived, as the state does not allow waiver of PAGA claims in arbitration agreements. Also, a pending bill threatens to prohibit CA employers from making it a condition of employment that employees agree to arbitrate.

Although class action waivers are permitted, unconscionability or lack of consideration may invalidate an arbitration agreement as a whole. Therefore, employers are advised to see the advice of counsel prior to implementing arbitration agreements in the workplace.   

  

Tal Burnovski Yeyni is an attorney in our Employment Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Monday
May142018

Dear Boss: I'm sick. Please Don't Pay Me. Sincerely...

Lawyer for EmployersEmployment Compliance

by Tal Burnovski Yeyni

818-907-3224

This may not be the best time of year to talk about sick leave. The days are longer.  The sun is shining. The weather is hotter.  And, workplaces... well, they don’t really change by the season. So maybe it is appropriate to talk about sick leave!  

sick employeeWe have lately received more employer questions regarding  their employees’ requests to defer sick leave to another time. Meaning, an employee is out sick, but does not want to use the sick leave balance to get paid for the time off. Which begs the question:

Can California employers require employees to use their sick leave balance? 

The law states “An employee can determine how much paid sick leave he or she needs to use” (Labor Code § 246(k)). But does that mean an employee also has a right to waive sick leave pay or defer it? Being a relatively new law, employers have very little guidance on sick leave matters.   

A review of the legislative history indicates the purpose of the law is not to penalize employees for being sick. Stated differently, the law was enacted to benefit employees by allowing them to stay home with pay while caring for themselves or family members.   

One would argue the use of sick leave is the employee’s right, and therefore, only the employee may decide whether to exercise that right or defer it to another time. On the other hand, a waiver may defeat the purpose of the legislation which is to make employees  “whole“ at time of sickness.  The latter argument was also expressed to a certain degree in the recent Dynamex decision (which we wrote about here).  

In Dynamex, the Supreme Court opined that allowing workers to waive employee (wage and hour) protections may displace those employees who want or need those same protections. See Dynamex Operations West, Inc. v. Superior Court 2018 WL 1999120 in page 71. Although the court’s decision discussed misclassification of independent contractors, its reasoning regarding waiving wage and hour protections may also be applied to other benefits.  

On the surface, it might appear that employees should not be able to knowingly waive their rights. However, employers should be mindful that sick leave rules may be subject to future interpretations.

As always, employers with questions regarding state and local employment law compliance are advised to contact an employment defense attorney.

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Wednesday
May092018

Court’s Prop 65 Ruling a Great “Brewhaha” for Coffee Retailers

Environmental Litigation AttorneyProp 65 Defense Attorney

 

 

 

Stephen T. Holzer

818.907.3299

 

 

In 2010, a nonprofit group called The Council for Education and Research on Toxics (CERT) brought a lawsuit against 91 commercial coffee roasters, retailers and distributors. 

CERT claimed the defendants failed to provide warnings regarding high levels of acrylamide, thus violating the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as California’s Proposition 65. The law requires companies with 10 or more employees warn consumers and others of any exposure to more than 900 confirmed or suspected carcinogens, including acrylamide, at the point of sale.

In late March, Los Angeles Superior Court Judge Elihu Berle tentatively decided in favor of CERT. The Court ruled that Starbucks and other companies failed to show there was no significant risk from acrylamide produced in the coffee roasting process and that cancer warning labels must be placed on their products in California.

That ruling has now been finalized. Barring a successful appeal, it appears that the law will force retailers either to post the Prop 65 warnings, or find ways to remove acrylamide from the coffee.

Prop 65: Signs of the Times

Businesses in California should take note: New compliance rules for Prop 65 take effect as of August 30, 2018. That leaves just a few months to ensure your signage or product packaging is complete and accurate. Generic warnings will no longer suffice.

Some of the new rules include the following requirements (for more details, see 27 California Code of Regulations [“CCR” §25603, Consumer Product Exposure Warnings – Content]:

  1. WARNING” must appear in the sign in bold and with all capital letters.

  2. The sign must also generally include a yellow equilateral triangle outlined in black, with a black exclamation point in the center. This symbol must be at least as high as the word “WARNING.”

  3. Premises signage must contain the specific name of the toxic substance found in the product sold.

  4. Product labels do not need the chemical name, but must include requirements 1 and 2, above.

  5. If warning labels and signs are given in another language, businesses must also provide them in English.

Stephen T. Holzer is the Chair of our Environmental Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
May012018

Independent Contractor vs. Employee: Our Supreme Court Speaks Again

Wage and Hour Defense Attorney Employment Defense Litigation

 

by Sue M. Bendavid & Nicholas Kanter

 

On April 30, 2018, the California Supreme Court handed down a ruling that may significantly impact the decision on classifying workers as “employees” or “independent contractors.” To the dismay of many businesses, the decision will place the burden squarely on the hiring entity to establish that its workers are correctly classified as independent contractors. The decision is Dynamex Operations West v. Superior Court.

Dynamex is a package and document delivery company. Prior to 2004, Dynamex treated and paid its drivers as employees. In 2004, Dynamex adopted a new policy and contractual arrangement under which all drivers are considered independent contractors rather than employees. Dynamex maintained that, in light of its contractual arrangement, the drivers were properly classified as independent contractors.

Charles Lee was a delivery driver who signed an independent contractor agreement with Dynamex in January 2005. Four months after signing the agreement, Lee filed a class action lawsuit alleging Dynamex misclassified drivers as independent contractors rather than employees.

Prior to the recent Supreme Court's Dynamex ruling, and depending on the applicable regulation or statute, California used several tests for determining whether a worker was an independent contractor, particularly the multifactor tests and considerations set forth in Supreme Court decisions re Martinez v. Combs and S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations.

After discussing Martinez and Borello at length, the Dynamex Court decided to adopt a simpler “ABC” test used by courts outside California to determine whether independent contractors are properly classified for purposes of the wage orders adopted by California’s Industrial Welfare Commission. Under this newly adopted test, a worker is considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

(A) The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; and

(B) The worker performs work that is outside the usual course of the hiring entity’s business; and

(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Notably, the Court also concluded “the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business.”

Employment Defense Tips re Classification

California employers must consider the three Dynamex factors to determine whether they can prove a worker is not an employee. This involves reviewing the reality of the business arrangement apart from any agreement that may attempt to define the nature of the relationship.

If analysis of these factors points towards an employer-employee relationship, and the worker is classified as an independent contractor, the business should consider consulting an experienced employment attorney to evaluate whether it is necessary to re-classify the worker as an employee and take all necessary steps to comply with the applicable wage orders and statutes.

 

Sue M. Bendavid and Nicholas Kanter are employment defense attorneys at our firm.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Mar232018

Waste Water Discharge & Disposal: 9th Circuit Clarifies Permit Obligations

Environmental Litigation AttorneyEnvironmental Litigation Defense Attorney

Stephen T. Holzer

818.907.3299

 

Call this one a case of misdirection, but an Appellate Opinion seems to simplify matters. If anything having to do with environmental law can be considered simple.

 

NPDES permits for U.S. Waters pollution

In Hawaii Wildlife Fund, et al., v. County of Maui, the U.S. Ninth Circuit Court of Appeals upheld a district court’s decision: Maui’s waste water treatment plant operators should have obtained National Pollutant Discharge Elimination System (NPDES) permits, because waste from the plant’s wells leaked into groundwater, which then flowed into the Pacific Ocean.

For context, the 1972 federal Clean Water Act (CWA) regulates pollution discharged into U.S. waters. The NPDES permits allow for some waste to be carried to certain federal waters under strict guidelines.

Here’s how the Courts decided federal law should apply on a more local scale:

When the County of Maui first built its four wells in the 1970s and 80s for water reclamation and treated sewage disposal in Lahaina, officials knew that some of the pollutants would seep into the groundwater.

The Lahaina Wastewater Reclamation Facility purposely chose the well storage option for disposal rather than transporting the sewage directly to the ocean, deciding that the latter method would be too destructive of the state’s coastal ecology. By choosing to allow some of the treated effluent to be transported to the Pacific via well leakage into groundwater meant that the pollutants would enter the ocean farther away from the coastline.

Maui County argued NPDES permits were not necessary because the County is not liable under the CWA for three key reasons.

The first point of contention in Hawaii Wildlife v. County of Maui centers on whether or not the Lahaina facility’s wells can be considered “point sources” under the CWA, which basically means any container or conveyance that discharges pollutants. The 9th Circuit opined the wells are containers and are not “nonpoint” sources – where pollution can’t be traced to a single point, e.g. water runoff from a parking lot. A tracer dye test in 2013 showed the effluent traveled from some of the wells to the ocean in 84 days.

Maui County further argued the discharge of effluent into the ocean is indirect, claiming that under federal law the pollutants must travel directly to navigable waters, not via groundwater.

Citing several other court decisions, the 9th Circuit decided against the Appellant again:

. . . the County’s theory would only support liability in cases where the point source itself directly feeds into the navigable water—e.g., via a pipe or a ditch. That the circuits have recognized CWA liability where such a direct connection does not exist counsels against accepting the County’s theory.

Thirdly, Maui County claimed the pollution seeping into the Pacific should be categorized as disposal (not regulated under CWA), rather than discharge. This argument was also struck down by the Appellate Court, finding that when a disposal is also a discharge as seems to be the case at the Lahaina facility, an NPDES permit is required. 

What Does the Ruling Mean for California?

NPDES permits for California businesses

Waste water has to go somewhere, and eventually it all flows into groundwater and then the oceans, even in California where state and regional restrictions are tough.

Here, the State Water Resources Control Board and nine Regional Water Quality Control Boards ensure the federal CWA is implemented correctly. In addition, California’s Coastal Zones Management Act and the Porter-Cologne Act also play a role in keeping state waters and coastlines cleaner. There are numerous regional regulations regarding water quality as well.

It all gets very confusing for the uninitiated – but any municipality treating waste water or sewage, as well as any land developer or business storing or transporting material waste of any kind, should be aware of the 9th Circuit’s opinion on Maui County. When in doubt, apply through the appropriate Regional Water Quality Control Board for an NPDES permit.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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