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  • Various workers standing together

    Governor Newsom has signed into law Assembly Bill 5 (“AB 5”), a landmark bill that will give millions of California workers job benefits and protections by limiting the circumstances under which employers can classify them as independent contractors. Unlike contractors, employees receive broad protections and benefits under California law—including Labor Code protections (minimum wage, overtime, meal and rest breaks, sick pay), unemployment and disability insurance, workers’ compensation, anti-discrimination law protections, and leave law rights.

    1.       What does AB 5 do?

    AB 5, authored by Assemblywoman Lorena Gonzalez (D-San Diego), codifies and expands the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”). In Dynamex, the Supreme Court reaffirmed that all California workers performing services for hire are presumptively employees, and held that the proper test in determining whether a worker should be classified as an independent contractor for purposes of California wage orders is the “ABC” test. Under this test, an employer seeking to classify a worker as an independent contractor bears the burden of establishing:

    (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity’s business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business . . . .

    (Id. at 955-56.)

    AB 5 extends the ABC test to apply to all claims brought under the Labor Code (not just to claims related to wage orders) and to claims for unemployment insurance. The bill has a number of carve-outs, discussed below.

  • podium

    On October 12, 2019, Ramit Mizrahi will be presenting at the California Lawyers Association’s 2019 Annual Meeting. She will be providing a California employment law legislative update, covering the new laws passed this year.

    Date and time: October 12, 2019, 8:45 a.m. – 9:45 a.m.

    Location: Monterey Conference Center, Portola Hotel & Spa at Monterey Bay, CA

    Additional information can be found on the CLA 2019 Annual Meeting page.

  • Last year, we outlined several bills that California legislators put forth in response to the momentum of the #MeToo and #TimesUp movements. While Governor Brown signed many of these bills into law, he vetoed several important ones. Among the legislation he vetoed was AB 1870, a bill that would have given more time to employees to file employment discrimination claims. Given AB 1870’s broad support, it has been resuscitated as AB 9. Like its predecessor, AB 9 seeks to extend from one to three years the time that employees have to file an administrative complaint with the Department of Fair Employment and Housing—the first step before being able to file a lawsuit.

    Before delving into AB 9 and its potential impact, it is helpful to start with an overview of statutes of limitations and California’s administrative filing requirements for employment law claims.

    1.       What is a statute of limitations?

    A statute of limitations is a “law that bars claims after a specified period.”[1] Stated differently, it is a deadline by which a party must bring a lawsuit. Most legal claims that are not brought within the statute of limitations time period are forever barred. Indeed, a party’s failure to take certain actions within the time set by law is an affirmative defense for the defending party that allows the employee’s claims to be rejected.[2]

    There are various policy justifications for statutes of limitations, including promoting the diligent prosecution of legal claims, minimizing the deterioration of evidence, and reducing the overall volume of litigation.[3] Statutes of limitations vary depending on the nature of the claim and the state within which the claim is brought. In addition, some claims must first be filed with a government agency before the employee is permitted to file a lawsuit.

    2.       What are the statutes of limitations and exhaustion requirements in employment discrimination cases?

    In California, claims for workplace discrimination, harassment, …

  • Applause

    Ramit Mizrahi has been recognized in U.S News & World Report’s 2020 Edition of The Best Lawyers in America© for her work in employment law representing individuals.

    Ms. Mizrahi has also been selected to the 2020 Southern California Super Lawyers® list, again for her work in employment law representing individuals.

    Both honors reflect peer recognition of excellence in practice.

    This marks the eighth year that Ms. Mizrahi has been recognized by Super Lawyers®, including having previously been distinguished as being among the top 100 Rising Stars and top 50 Rising Stars women for three consecutive years.

    Ms. Mizrahi and the Mizrahi Law team remain committed to serving as tenacious advocates for the firm’s clients while working to build collegiality and community in the legal profession.

  • pregnant worker contemplating her leave

    Following Ramit Mizrahi’s August 7, 2019 appearance on AirTalk discussing workplace pregnancy discrimination and retaliation, she shares the following additional reflections and information for workers subjected to pregnancy discrimination and retaliation:

    Additional Reflections

    California law offers strong protections to employees who have been subjected to discrimination and harassment. Despite that, pregnancy discrimination and retaliation for standing up to discrimination remain rampant. Once employees have been wrongfully terminated, they often know to reach out to seek legal help immediately. But current employees are often more confused about what to do. They may rightfully feel afraid about reporting unlawful conduct to Human Resources, particularly when the conduct is coming from their immediate supervisor. What if it just makes the situation worse? Indeed, far too often, Human Resources is more concerned with protecting the company than with taking the immediate corrective action that the law requires of them. A retaliating supervisor can make a job feel like death by 1,000 paper cuts: scrutinizing, criticizing, and nit-picking every action by an employee, making them feel ostracized or humiliating them in front of their peers, and leaving them in a constant state of fear and anxiety. Indeed, if true, the experiences of the Google employee whose memo went viral demonstrate the myriad ways that a company can fail its employees and allow discrimination and retaliation to persist.

    An employee’s best hope is to be fully informed about their legal rights. They can then decide whether to report internally, to file a claim with one of the government agencies that investigates and enforces anti-discrimination laws, to seek private counsel to negotiate an exit or to file suit, or to make a conscious decision to wait (being mindful that if a person waits too long, they may forever lose their ability to assert the claim–a post on this topic will be forthcoming). To that end, I provide the following brief overview of employment protections for California workers subjected to pregnancy discrimination and retaliation. Note that many of these topics have been covered in greater depth elsewhere throughout the blog. (The archive categories are listed to the right of this post.)

    1.       Discrimination

    The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against employees because they belong to a protected category (sex, pregnancy, race, religion, disability, etc.). This includes refusing to hire or promote employees, terminating them, or discriminating against them in compensation or in terms, conditions, or privileges of employment.

  • pregnant worker contemplating her leave
    On August 7, 2019, Ramit Mizrahi appeared on AirTalk (guest hosted by Libby Denkmann) at KPCC to discuss pregnancy discrimination and retaliation in the workplace. The primary topic was the memo by a former Google manager that has since gone viral; the show also welcomed guest callers to speak about their own experiences.

    The episode can be found here: Another Google Employee Memo Has Gone Viral, This Time Alleging Discrimination Against Pregnant Women. Ramit can be heard starting at 9:33.

  • The July 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s fifth message as Chair of the Labor and Employment Law Section.

    In her column, Ramit shares insights on how attorneys can avoid burnout and thrive while engaging in demanding careers. Click on the below image to read the article in full.

    CLA July Message from the Chair

  • Senate Bill 707 is directed at employers who force employees into arbitration then refuse to pay the fees

    Gavel over currency

    On May 28, 2019, the California Senate passed Senate Bill 707 (“SB 707”), otherwise referred to as the Forced Arbitration Accountability Act. SB 707 seeks to end an abusive tactic that employers use to deny their employees justice—forcing them to arbitrate their legal claims and then suspending the process by refusing to pay the arbitration fees. The bill would pull employees out of this legal limbo by giving them options that allow them to proceed with their cases despite employer non-cooperation. SB 707 also aims to examine the alarming lack of diversity in the arbitration industry. It would require arbitration service providers to collect and share demographic data about the self-reported ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators, as California judges are required to do.

    1. OVERVIEW OF ARBITRATION

    To understand the potential impact of SB 707, it is helpful to start with an overview of arbitration.

    Arbitration is a form of private dispute resolution that takes place outside of the court system.  In arbitration, an arbitrator—often a retired judge or lawyer—acts as both the judge and jury and renders a decision, which is generally final and binding. Employers are increasingly requiring employees to sign arbitration agreements and waive their right to a jury trial as a condition of employment. According to estimates from the Economic Policy Institute and the Center for Popular Democracy, almost 83% or 95 million of the country’s private, non-unionized employees will be subject to arbitration by 2024. These arbitration agreements are often buried in the fine print of job applications, employment agreements, or employee handbooks, and employees often only learn that they have signed arbitration agreements after-the-fact.

    Arbitration generally favors employers. When employees are forced into arbitration, they are less likely to win their claims, and even when they do, they receive lower awards that employees who had jury trials.

    One reason for this is that employers get to choose the rules governing the proceedings. The rules often make the process less favorable to employees, including by restricting discovery, limiting appeal rights, and prohibiting class actions. Discovery is the process by which each side formally obtains information from the other, including depositions (in which a party’s lawyer can examine witnesses under oath), interrogatories (written questions), requests for admissions, and requests for production of documents. In cases where an employee must prove that an employer acted with wrongful intent or discriminatory bias, the lack of meaningful discovery (for example, being denied the ability to take a sufficient number of depositions) can be fatal to an employee’s claim. (In some states, employers also use the rules to shorten the time that employees have to file their statutory claims (the statute of limitations) and to restrict legal remedies; this is not permissible in California.)

    Another reason that the process favors employers is that . . .

  • podium

    Ramit Mizrahi will be presenting at a Beverly Hills Bar Association dinner program on Trial Preparation and Trial after People vs. Sanchez.

    Date and time: TBD, 6:00 p.m. – 8:00 p.m.

    Location: Beverly Hills Bar Association, 9420 Wilshire Blvd, Beverly Hills, CA 90212

    Update: This event will be rescheduled.

  • The May 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s fourth message as Chair of the Labor and Employment Law Section.

    In her column, Ramit shares her insights on how to make the practice of law (and life) more rewarding. Click on the below image to read the article in full.

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