SCOTUS Rules that ADEA Applies to Small State Offices

On November 6, 2018, the U.S. Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) extends to small state and local government employers, rejecting an Arizona fire district’s contention that the statute should apply only to public entities with at least 20 employees.

In a unanimous 8-0 decision, the court upheld the Ninth Circuit’s decision to reopen a lawsuit by two firefighter captains who claim they were illegally terminated by the Mount Lemmon Fire District near Tucson, Arizona, because of their age. John Guido and Dennis Rankin were working as full-time firefighter captains and were the two oldest full-time employees at the district when they were fired. Guido and Rankin were ages 46 and 54, respectively, when they were let go in 2009.

Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act of 1967 is the federal statute at hand in this case. The ADEA defines “employer” as “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.”

This definition is the result of a 1974 amendment; before then, the ADEA applied to private employers of 25 employees or more, and expressly excluded public employers. The act defines “person” as “one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.”

Circuit Court Split 

ADEA

The Equal Employment Opportunity Commission (EEOC) has long maintained that the ADEA covers state and local employers of any size and thus found reasonable cause to believe the fire district had discriminated against Guido and Rankin. But the district court, following the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits, held that the ADEA’s 20-employee threshold applies to state and local employers. On appeal, the Ninth Circuit created a circuit split last year by ruling that a political subdivision of a state need not have 20 or more employees to qualify as an employer subject to the ADEA.

During oral arguments on October 1, SCOTUS attempted to determine if the statutory language “also means” makes political subdivisions a wholly separate category of employer subject to the ADEA’s requirements, or whether it merely clarifies that state and local employers should be treated in the same fashion as private companies under the ADEA. The Court ruled 8-0 Tuesday that employers like the Mount Lemmon Fire District – state or local government entities with fewer than 20 workers – can be sued under the ADEA.

Justice Ruth Bader Ginsburg delivered the Court’s opinion affirming the Ninth Circuit. Ginsburg wrote that the statute’s text leaves “scant room for doubt that state and local gov­ernments are ‘employer[s]’ covered by the ADEA regard­less of their size…§630(b)’s two-sentence delineation, and the expression ‘also means’ at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting com­merce with 20 or more employees; and states or political subdivisions with no attendant numerosity limitation,” Ginsburg said.

Kingsley & Kingsley – Experienced California Employment Lawyers

It is important to remember that not all illegal age bias is blatant. Even something meant to be harmless, such as a question about future retirement plans or a comment about professional longevity, could be used against you. If you are a victim of age discrimination, the California employment lawyers at Kingsley & Kingsley can help. Should you have questions about discrimination or retaliation in the workplace, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

port trucking companies

New California Law Penalizes Companies for Using Law Breaking Trucking Companies

Senate Bill 1402:  Establishes Joint and several liability for customers who contract with or use port drayage motor carriers who have unpaid wage, tax and workers’ compensation liability.

As SB 1402’s effective date of January 1, 2019 approaches, the employment lawyers at Kingsley & Kingsley remind you of the rationale for the bill and the penalties for violating the new law. Senate Bill 1402 was authored by state Senator Ricardo Lara and signed by Governor Brown on September 22. “The bill seeks to end the exploitation of port truck drivers who are being left behind, even though America’s economy could not run without them,” Lara said of the bill. “Senate Bill 1402 will clean up our port trucking industry in a way that is fair for absolutely everyone and protect some of our most vulnerable workers.”

Under the legislation, when retailers hire trucking companies that have unpaid legal judgments against them, those retailers become jointly liable should the trucking companies commit new violations of state labor and employment laws. Such violations could include failure to pay wages, imposing unlawful expenses on employees, failure to provide worker’s compensation insurance and misclassifying employees as independent contractors.

California Employers Beware   

The penalties for businesses that rely on port trucking companies with violations on record comes in the addition of new Labor Code Section 2810.4(b)(3). This provision states that a customer that engages or uses a port trucking company on a “blacklist” shall share all civil legal responsibility and civil liability owed to a driver for services obtained after the date the company appeared on the “blacklist.” The Division of Labor Standards Enforcement (DLSE) is required to compile this “blacklist” and post on its website any port drayage motor carrier with any unsatisfied judgments, including judgments for failure to pay wages, imposing unlawful expenses, failure to remit payroll taxes, failure to provide workers’ compensation insurance, or misclassification of employees as independent contractors. DLSE is not allowed to place a port trucking company on the “blacklist” until the period of time for all judicial appeals has expired – so this list is for unsatisfied final judgments.

SB 1402 specifies numerous definitions and clarifications, to include:

  1. an expansive definition of “customer” of a port trucking company. “Customer” means a business that engages or uses a port trucking company to perform services on the customer’s behalf, whether the customer directly engages or uses a port trucking company or indirectly uses a company through the use of an agent such as a freight forwarder, motor transportation broker, ocean carrier, or other motor carrier.
  2. “customer” does not include (1) a business with fewer than 25 workers, (2) public entities, or (3) a marine terminal operator or similar business who has incidental relationships with port trucking companies.
  3. violators share joint and several liability with the trucking company for the full amount of unpaid wages, unreimbursed expenses, damages and penalties. Every customer that uses a port trucking company on the “blacklist” in a given workweek shall be jointly and severally liable for unpaid wages and other damages which are found to be owed by the port trucking company for that workweek.
  4. joint liability under SB 1402 may be determined by the Labor Commissioner, or by a court in a civil action (following 30 days’ notice to the customer). No civil action for joint liability may be brought pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA).
  5.  prior to providing services to a customer, a port trucking company shall provide written notice of any unsatisfied final judgments. Failure to provide the notice shall not absolve the customer of joint liability under the new law. The law requires a port trucking company to notify a customer within 30 days of a final entry of judgment for specified claims.

Exceptions

joint and several liability

SB 1402 has a number of exceptions that were negotiated during the legislative process. SB 1402 specifies that the joint liability provisions do not apply in the following situations:

  1. customers who engage with port trucking companies whose employees are covered by a bona fide collective bargaining agreement.
  2. where the customer and the trucking company had an existing contract at the time the company is listed on the “blacklist,” joint liability shall not apply until the expiration of that contract or 90 days, whichever is shorter.
  3. Where a port trucking company is not listed on the DLSE “blacklist.”
  4. Where the port trucking company satisfied the judgment prior to the time period for which the joint and several liability is alleged.

Next Steps

SB 1402 has far reaching impacts for California employers, especially given that California is home to two of the biggest ports in the country. Companies that are currently using port trucking companies should develop new policies and procedures to comply with the new law. Should you have any questions about California’s wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469

family leave | California

Family Leave California Family Rights Act – CFRA

Unpaid Job Protection Rights | Family Leave

The California Family Rights Act (CFRA) provides job protection benefits for qualified employees during many family leave situations. Covered employers must provide notice to employees of their rights under the California Family Rights Act; look for a notice that required to be posted in a conspicuous area. CFRA includes up to twelve work weeks of family leave if you qualify.

family leave california family rights actThere are specifics to the California and federal law to consider for family leave. For example, CFRA covers employers that are private companies “who do business in California” and employ 50 or more part or full time employees and it includes non profit and religious organizations. It also includes placement of a child in the employee’s family for adoption or foster care. There are:

For detailed family leave information, visit our page on the California Family Rights Act here and contact Kingsley & Kingsley to have your questions answered by an experienced California Labor & Employment Attorney.

 

salary ban california job applications

New Laws for California Job Applications

California’s 2017-2018 legislative session ended last month with a significant number of new labor and employment laws enacted by both the legislature and Governor Brown. Two such laws effect employers and the processes and forms used to recruit new employees.  Below is a summary of two new laws for California job applications, SB 1412 and AB 2282.

Senate Bill 1412 – Applicants for Employment & Limiting Criminal History Inquiries 

Existing California law prevents employers from asking job applicants to disclose information concerning criminal history until a conditional offer of employment has been made. There are four exceptions to current law, including instances when:

  1. an employer is required by law to obtain information regarding a conviction of an applicant;
  2. the job requires possession or use of a firearm;
  3. an individual who has been convicted of a crime is prohibited by law from holding the position sought; or
  4. an employer is prohibited by law from hiring an applicant who has been convicted of a crime.

SB 1412 (Bradford) clarifies the circumstances when an employer is prohibited from asking an applicant about criminal convictions that have been judicially dismissed or ordered sealed by limiting employer inquiries to “particular convictions” where conviction of a crime would legally prohibit someone from holding that job. SB 1412 also defines “particular conviction” as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.” SB 1412 amends Section 432.7 of the Labor Code and applies to a public agency or private individual or corporation.

Assembly Bill 2282 – Salary History Information

salary ban california job applications

As we reported last year, Governor Jerry Brown signed AB 168 into law, effectively banning employers from asking job applicants about salary history. AB 168 prohibits all employers, including the Legislature, the state, and local governments, from seeking salary history information about an applicant for employment and requires an employer to provide the pay scale for a position to an applicant upon reasonable request, among other things. AB 2282 is meant to clarify several ambiguities in existing law. For example, this bill specifies that the prohibition on asking a job applicant about prior salary does not forbid an employer from asking the applicant about his or her salary expectations for the position being applied for. The bill also defines an “applicant” as an individual who is seeking employment with the employer and is not currently employed by the employer. AB 2282 further amended the California Fair Pay Act to clarify that salary disparity based on an employee’s existing salary may be permitted provided it is justified by seniority, merit, production (quality or quantity) or any other bona fide factor other than sex (e.g. local ordinance requiring a higher minimum wage).

California Employment Law

Both SB 1412 and AB 2282 go into effect on January 1, 2019. Should you have questions about California’s employment laws, or any wage and hour laws signed by Governor Brown, don’t hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469 | Local: 818-990-8300 (Los Angeles Co.)

 

 

independent contractor uber

Class Certification Reversed in Cases Against Uber

Class Certification Reversed in Consolidated Appeals Against Uber

On September 25, 2018, a Ninth Circuit panel 1) reversed the district court’s denial of Uber Technologies, Inc.’s motions to compel arbitration, 2) reversed the district court’s class certification orders, and 3) reversed as moot and without foundation the district court’s Fed. R. Civ. P. 23(d) orders in several putative class actions. The class actions were brought by current and former Uber drivers alleging violations of various federal and state statutes arising from Uber’s classification of drivers as independent contractors rather than employees.

The four consolidated appeals included O’Connor v. Uber Technologies, Inc.; Yucesoy v. Uber Technologies, Inc.; Mohamed v. Uber Technologies, Inc.; and Del Rio v. Uber Technologies, Inc. Litigation involving Uber’s business model and worker classification has garnered much attention over the past five years with numerous decisions from district and Ninth Circuit courts.

Background   class certification

The cases above began when two Uber drivers filed a class action against the company in August 2013 (the O’Connor action) alleging claims for failure to give the entire gratuity paid by customers to drivers in violation of the California Labor Code (tip claim) and for misclassifying the drivers as independent contractors and not paying their business expenses (for vehicles, gas and maintenance), also in violation of the California Labor Code (expense reimbursement claim). Shortly after the filing, the O’Connor plaintiffs sought to foreclose or limit Uber’s use of its arbitration agreement. The district court granted the plaintiffs’ request in part, enjoining Uber from enforcing its arbitration agreement and requiring enhanced notice of opt-out provisions and extension of the opt-out periods.

Plaintiff Abdul Mohamed filed a putative class action against Uber and an independent background check company on Nov. 24, 2014, raising a variety of federal and California state claims, including under the Fair Credit Reporting Act. The district court denied Uber’s motion to compel arbitration based on its 2013 and 2014 arbitration agreements, finding in part that the arbitration provisions were unconscionable.

Ninth Circuit Opinion

Writing for the majority, Judge Richard R. Clifton began the opinion by acknowledging that in Mohamed v. Uber, 848 F.3d 1201, 1206 (9th Cir. 2016), the same panel (judges Richard Tallman, Clifton and Sandra Ikuta) reversed the district court’s orders denying Uber’s motion to compel arbitration. The panel rejected plaintiffs’ additional arguments in this current appeal alleging that the arbitration agreements were unenforceable.

First, the plaintiffs argued that the lead plaintiffs in the O’Connor case constructively opted out of arbitration on behalf of the entire class. The panel held this was unpersuasive because nothing gave the O’Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers, and the decision in Bickerstaff v. Suntrust Bank, 788 S.E.2d 787 (Ga. 2016), was not instructive where it relied exclusively on state law grounds and did not discuss the Federal Arbitration Act.

Second, the plaintiffs argued that the arbitration agreements were unenforceable because they contained class action waivers that violated the National Labor Relations Act of 1935. The panel held that this argument was rejected by the Supreme Court in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). The panel held that it had jurisdiction to review both the original class certification order and the December 9, 2015 certification order. The panel held that in the wake of the decision in Mohamed, the class certification orders must be reversed because they were premised upon the district court’s conclusion that the arbitration agreements were not enforceable. The question whether those agreements were enforceable was not properly for the district court to answer because the question of arbitrability was designated to the arbitrator.

The panel held that remand for further proceedings was appropriate, and leaving the existing class certification orders in place in the meantime was not appropriate. The panel held that the district court’s Fed. R. Civ. P. 23(d) orders must be reversed as moot and without foundation in light of the panel’s reversal of the district court’s orders denying the motions to compel arbitration and certifying the class.

California Employment Laws and Class Certification

California employers and employees alike should understand the nuances of class certification and individual arbitration agreements.  As Uber cases around the country reach resolution, don’t hesitate to contact leading employment lawyers at Kingsley & Kingsley with any questions you might have. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

California Law Firm Los Angeles

Target Sued by EEOC For Disability Discrimination

EEOC Report – Antioch Store Illegally Refused to Interview Candidate Because He Is Deaf

According to the U.S. Equal Employment Opportunity Commission (EEOC), national retailer Target Corporation violated federal law when it failed to interview a qualified job applicant because he is deaf. The EEOC’s investigation revealed that John Hayes applied online for an entry-level front clerk position at Target’s Antioch, California store in September 2014. Hayes was qualified for the job and when Target’s HR representatives called Hayes’s number, they reached a Video Relay Service (VRS), which enables him to communicate with hearing people using a sign language interpreter. His phone records show that Target called twice and hung up both times without leaving a message, a deviation from their usual practices. Each time Hayes returned the call, he spoke to an HR representative who informed him that Target would call back to schedule an interview. However, Target never scheduled the interview but instead hired seven non-disabled applicants to fill vacancies in its Antioch store between October 23 and October 31.

Americans with Disabilities Act (ADA)   

ADA disability discrimination

Americans with Disabilities Act  – The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability. Further, the ADA requires employers to provide reasonable accommodations to employees absent an undue hardship.

Since rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA), the EEOC filed suit in U.S. District Court for the Northern District of California. The EEOC’s lawsuit seeks lost wages, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future. The EEOC filed the suit after first attempting to reach a pre-litigation settlement through its conciliation process.

William Tamayo, the EEOC’s San Francisco District Office director remarked, “Mr. Hayes had a successful 17-year career with a major medical provider before he retired…He was stunned to discover that Target wouldn’t even interview him for an entry-level clerk position after learning he was deaf. Congress enacted the ADA to prevent just this sort of thing — employers refusing to consider qualified individuals because of their disability.”

EEOC Trial Attorney Debra Smith added, “This is the second lawsuit we’ve filed this month on behalf of a qualified deaf applicant denied the opportunity to interview, and we just announced a settlement obtaining $88,000 and a job position for another qualified deaf job seeker. These are candidates with valuable skills and experience, and it is wrong to shut them out of the workplace based on fears and stereotypes about being deaf.”

According to company information, Target Corporation operates 1,839 stores and 39 distribution centers in the United States, with headquarters in Minneapolis, and employs 350,000 workers worldwide. The Antioch Slatten Ranch Store, Target Store No. 1819, employs approximately 300 workers in the Antioch area.

Questions about Disability and Discrimination

Should you have questions about ADA or disability discrimination don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)