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  • The Legislative Office Building in Sacramento

    2019 has turned out to be a bumper year for employment legislation. The continued influence of the #MeToo movement can be seen in the number of bills meant to protect employees who have suffered harassment, discrimination, and retaliation. The California Legislature also targeted arbitration abuse, worker misclassification, and other wage and hour law violations. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.

    1.         Bills Signed Into Law

    AB 5 — Dynamex codification; independent contractors

    • Codifies the Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 “ABC” test to determine whether a worker is an independent contractor or employee, with specified statutory exemptions. 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. . . .

    • Applicable retroactively to all claims under Labor Code related to Wage Orders; prospectively to all other Labor Code claims. Applicable prospectively with respect to unemployment insurance.
    • Contains numerous statutory exemptions, which apply retroactively. In these circumstances, apply the test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.
    • Prohibits employees from reclassifying existing employees as independent contractors.

    More on AB 5 can be found in this blog post.

    AB 9 — Increases Time to File Employment Discrimination Claim

    • Gives employees more time to bring employment discrimination claims (including harassment and retaliation claims) by extending the deadline to file a verified complaint with DFEH for employment discrimination claims from one to three years.
    • Date of verified complaint relates back to filing of intake form with the DFEH.

    More on AB 9 can be found in this blog post.

  • Bottles of pumped milk

    Update 10/10/2019: Governor Newsom signed SB 142 into law today.

    On September 11, 2019, the California Legislature passed Senate Bill 142 (“SB 142”), which would significantly expand lactation accommodations and protections for working mothers. Among other things, SB 142 would: (1) clarify employer obligations to provide breaks to nursing/pumping mothers; (2) require employers to provide safe and sanitary lactation rooms for employees wishing to express milk; (3) increase penalties for non-compliance; (4) prohibit discrimination and retaliation against employees who exercise or attempt to exercise their right to lactation accommodations; and (5) require that employers implement lactation accommodation policies.

    SB 142 comes on the heels of last year’s Assembly Bill 1976 (“AB 1976”). AB 1976 required that employers “make reasonable efforts” to provide a lactation room other than a bathroom. Under SB 142, employers must provide such a room, subject to a limited undue hardship exemption.[1]

    Given Governor Gavin Newsom’s support for the expansion of paid family leave from six weeks to eight weeks, and his championing of increased worker protections, we are optimistic that he will sign SB 142 into law.

    WHAT DOES SB 142 DO?

    SB 142, introduced by Senator Scott Weiner (D-San Francisco) and principally co-authored by Assemblymember Lorena Gonzalez (D-San Diego), amends Labor Code sections 1030, 1031, and 1033 and adds section 1034. The amendments and additions, which are discussed below, significantly expand lactation accommodations and protections for working mothers.

  • The September 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s final message as Chair of the Labor and Employment Law Section. In her column, Ramit invites readers to reflect on their lives and life choices, and thanks those who made her role as Section Chair possible.

    CLA September Message from the Chair

  • 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.

  • 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
    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 . . .

  • 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.

  • podium

    On July 19, 2019, Ramit Mizrahi will be moderating a panel at the California Lawyers Association’s 36th Labor & Employment Law Section Annual Meeting.

    Title: The Secret of My Success: Insights from Top Trial Lawyers

    Date and time: Friday, July 19, 2019, 4:00 p.m. – 5:30 p.m.

    Location: Millennium Biltmore Hotel, 506 S. Grand Ave., Los Angeles, CA 90071

    Description: Some plaintiff-side employment attorneys routinely score seven-figure verdicts, while some management attorneys regularly obtain defense verdicts. How do they do it? You’ll find out in this seminar, where four ace trial lawyers will discuss how they work and will share some of the lessons they have learned from experience. This will not be your typical success stories panel, as we hope you will take away ideas that will help you in your next trial.

    Additional information can be found on the CLA website, here.

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