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California Management Supreme Court Watch

By Charles O. Thompson

The next term for the California Supreme Court will be robust with employment decisions. We provide you with the hottest cases to watch that may affect your business over the course of the next year. The court is poised to address rest breaks, classification of employee versus independent contractor, seating requirements and personnel file issues. Meanwhile, civil rights attorneys have recently filed in the trial courts a flurry of cases against shared “on demand” economy entities claiming that workers are misclassified. We will keep you informed of relevant developments in the law that may affect the decisions of the court.

Augustus v. ABM Security Services, Inc., S224853. (B243788; 233 Cal.App.4th 1065; Los Angeles County Superior Court; BC336416, BC345918, CG5444421.) Petition for review after the Court of Appeal reversed the judgment in a civil action.  This case presents the following issues: (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?

Dynamex Operations West, Inc. v. Superior Court, S222732. (B249546; 230
Cal.App.4th 718; Los Angeles County Superior Court; C332016.)
Petition for review after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate.  This case presents the following issue: In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control?

Kilby v. CVS Pharmacy, Inc./Henderson v. JPMorgan Chase Bank NA, S215614.
(9th Cir. Nos. 12-56130, 13-56095; 739 F.3d 1192, Southern District of California, 3:09-cv-02051–MMA-KSC; Central District of California, 2:11-cv-03428-PSG-PLA.) 

Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in consolidated appeals pending in the United States Court of Appeals for the Ninth Circuit. The questions presented are: For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat? (2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? (3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?”

McLean v. State of California, S221554. (C074515; 228 Cal.App.4th 1500; Sacramento County Superior Court; 34201200119161CUOEGDS.) Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case presents the following issues: (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code section 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked? (2) Do Labor Code section 202 and 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires?

Mendoza v. Nordstrom, S224611. (9th Cir,. No. 12-57130; 778 F.3d 834, Central
District of California; 8:10-cv-00109-CJC-MLG.)
Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The questions presented are: “(A) California Labor Code section 551 provides that ‘[e]very person employed in any occupation of labor is entitled to one day’s rest in seven.’ Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period? (B) California Labor Code section 556 exempts employers from providing such a day of rest ‘when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.’ (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week? (C) California Labor Code section 552 provides that an employer may not ‘cause his employees to work more than six days in seven.’ What does it mean for an employer to ‘cause’ an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

Poole v. Orange County Fire Authority, S215300. (G047691, G047850; 221
Cal.App.4th 155; Orange County Superior Court; 30-2011-00463651.)
Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issue: Did a daily log about firefighters, which was maintained by a supervisor and used by the supervisor to prepare annual performance evaluations, qualify under the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et seq.) as a personnel file and/or as a file used for personnel purposes?