Here are the most significant employment law updates in the last year.
New Employment Test – Dynamex Case
One of the most important updates in the law came as a result of the California Supreme Court’s decision in the case entitled Dynamex v. Superior Court. In that case, the Court established a new test for determining whether a worker is an employee versus an independent contractor, which the Court referred to as the ABC test.
First, there is a presumption that the worker is an employee, and the hirer is required to prove that the worker is not an employee. Specifically, the hirer must establish all of the following:
- The worker is free from the control and direction of the hiring entity in connection with the work that is performed.
- The worker performs work that is outside the usual course of the hirer’s business.
- The worker is customarily engaged in an independently established trade, occupation, or business.
It is important to understand that this test is applied retroactively.
Effective January 1, 2019, the minimum wage has increased for all employers regardless of size. For employers with 25 or fewer employees, the minimum wage increased from $10.50 per hour to $11.00 per hour. For employers with 26 or more employees, the minimum wage increased from $11.00 per hour to $12.00 per hour.
These new rules not only affect hourly employees, but salaried employees as well. To qualify for most overtime exemptions, salaried employees must be paid at least two times the minimum wage for full time employment, meaning a yearly salary of at least $45,760.00 for small employers and $49,920.00 for larger employers.
Employers can now be held liable for any kind of harassment by non-employees if the employer knew or should have know of the harassment, but the employer failed to take appropriate action.
Sexual harassment claims in certain non-employment relationships have been expanded to include relationships in which the individual holds themselves out as being able to help another establish a business, service, or professional relationship. This includes lobbyists, elected officials, directors, producers, and investors.
Employers must make reasonable efforts to provide a place for lactation, other than a bathroom.
National Origin Discrimination
National origin discrimination has been clarified to include discrimination on the basis of the employee’s actual or perceived: 1) physical, cultural, or linguistic characteristic associated with a national origin group; 2) marriage to or association with persons of such a group; 3) name that is associated with a particular group; and 4) tribal affiliation. This may also implicate height and weight restrictions/requirements if it implicates characteristics of a certain national origin group.
English Only Policies
It is now unlawful for an employer to enforce a policy that prohibits the use of any language in the workplace, such as an English only policy, unless 1) the language restriction is justified by business necessity; 2) the language restriction is narrowly tailored; and 3) the employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.
Business necessity means, among other things, the restriction is necessary to the safe and efficient operation of the business and there is no alternative, less discriminatory, practice that is equally efficient.
Please contact the experienced employment attorneys at the Law Offices of Corren & Corren if you have any questions or concerns regarding the information in this article or for any of your employment law needs.