On Wednesday, September 30, Governor Newsom finished out the legislative season by signing a flurry of legislation, including several that benefit employees. The bills are as follows:
A federal judge has ruled that Uber and Postmates failed to demonstrate that they were unconstitutionally targeted by AB 5, the new law that requires most California workers to be classified as employees rather than independent contractors.
The lawsuit, Lydia Olson et al v. State of California et al, alleged that AB 5 violated the equal protection clause because it targeted workers of app-based companies like Uber and Postmates, while exempting numerous other types of workers like hairdressers and real estate agents.
In her ruling, issued September 18, 2020, U.S. District Judge Dolly M. Gee rejected this claim, finding that lawmakers were attempting to address the rampant misclassification of employees and to ensure that workers received the "basic rights and protections they deserve under the law, the attendant problems, such as a lack paid sick leave, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave."
Judge Gee ruled that Uber and Postmates did not prove that app-based companies were targeted because of animus, reasoning that AB5 maintains the traditional exemption of workers who have long been considered independent contractors under California law.
Earlier this month, the California Legislature revised AB 5 to exempt several more businesses from the classification test and to increase the state’s ability to enforce the law. Meanwhile, Uber, Lyft and other app-based companies have poured millions of dollars into Prop 22, a measure on the November ballot that would exempt their drivers from AB5 and classify them as independent contractors.
If you believe you have been misclassified as an independent contractor instead of an employee, contact Teukolsky Law today for a free consultation.
On Thursday, Governor Newsom signed three more bills to protect California’s workers during the COVID-19 pandemic. California is already considered one of the most worker-friendly states to work during the pandemic, according to a recent Oxfam report which looks at measures like the amount of mandated paid leave and protection against forced return to work.
SB 1159 by Senator Jerry Hill (D-San Mateo) makes it easier for employees infected with COVID-19 to claim workers' compensation benefits. The law creates a rebuttable presumption that certain employees contracted the virus at work, thereby making them eligible for benefits.
AB 685 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) requires businesses to inform their employees in writing within one business day if the business receives notice of a potential COVID exposure at the workplace. Under the new bill, CalOSHA is allowed to determine if certain workplaces are imminently hazardous enough to prevent certain operations and processes. Cal OSHA is also now authorized to issue citations for coronavirus violations without needing to follow the usual pre-citation requirements.
SB 1383 (19R) by Senator Hannah-Beth Jackson (D-Santa Barbara) expands the California Family Rights Act (CFRA). Starting in January 2021, SB 1383 will broaden coverage by extending job-protected leave to businesses with 5 or more employees, and by extending the list of relatives one can care for to include siblings, grandparents and grandchildren.
If you think you been denied family leave or have concerns about workplace safety, contact Teukolsky Law today for a free consultation.
COVID-19 has spawned a wave of employment lawsuits, including cases alleging wage-and-hour violations, employment discrimination, unsafe work environment, and whistleblower retaliation, among others. Corporate defense firm Fisher Phillips has been tracking all these lawsuits on a map; this helpful tool shows that California leads the nation in employment-related coronavirus litigation, with over 137 cases out of the total of nearly 700 as of September 17, 2020. In the last seven days, California alone has reported six new COVID-related cases in employment law.
One longstanding area of litigation that has been affected by the coronavirus is the misclassification of workers as independent contractors under California’s AB 5, a new law which creates a presumption that most workers are employees. Many gig-economy companies, including ride-share titans Uber and Lyft, classify their drivers as independent contractors rather than employees. The classification question has grown particularly relevant during the pandemic because many gig workers need paid sick leave and other disability protections available only to employees.
One case that highlights how COVID may affect existing AB5 cases is Rogers v. Lyft, Inc. (N.D. Cal., Case No. 4:20-cv-01938-VC). In this case, drivers allege that Lyft misclassified them as independent contractors under AB 5 and that Lyft failed to provide them appropriate paid sick time. In April 2020, U.S. District Judge Vince Chhabria denied the drivers’ emergency motion for a preliminary injunction that would have forced Lyft to immediately reclassify them as employees and grant them sick leave. The judge scolded the workers for using the pandemic to try to get a positive ruling on the classification question. The drivers appealed the denial of injunctive relief and the case is now in the Ninth Circuit.
Rogers v. Lyft poses a chicken-and-egg question: Did the pandemic create the need for workers to be recognized as employees and therefore receive paid sick leave and other protections only afforded to employees, or are workers using the pandemic to create reasons they should be recognized as employees and receive additional benefits? Although there may not be a clear answer to this question, there can be little doubt that the pandemic will help shape the early course of AB 5 enforcement in California.
If you believe that you have been misclassified as an independent contractor instead of an employee, contact Teukolsky Law today for a free consultation.
On September 10, 2020, Governor Gavin Newsom signed AB 1867. Passage of the bill means that millions of Californians will now be eligible for up to 80 hours of supplemental paid sick leave during COVID-19. While many workers were already given paid sick leave under the federal FFCRA (Families First Coronavirus Response Act), this bill expands paid sick leave to employees working for private employers with more than 500 U.S.-based workers, and all health care providers and emergency response workers not covered under FFCRA. The bill also codifies existing paid sick leave provisions for food service workers.
To qualify for the expanded leave, the employee must perform work outside their home or residence and satisfy one of the following conditions: 1) be advised by a medical provider to quarantine due to coronavirus-related concerns; 2) due to COVID-19 concerns, not be permitted to work; or 3) be under a federal, state, or local isolation or quarantine order. The legislation will be enforced through the Labor Commissioner’s office; there is no private right of action to sue the employer directly in court.
New regulations such as these are essential for containing the spread of the coronavirus because they create a pathway for workers to stay home and not risk their health or their income. Keeping sick workers at home also stops the spread of COVID-19 to the general public. We are grateful to live in California, which was recently ranked #1 by Oxfam in terms of worker protections in a study entitled, "Best States to Work During COVID-19." Hopefully, California will continue to lead the way in worker’s rights legislation during the pandemic.
If you believe that your employer has failed to provide you with paid sick leave or you have any questions about your rights during the COVID-19 crisis, contact Teukolsky Law today for a free consultation.
Lauren Teukolsky Quoted In Daily Journal About Non-Disclosure Agreements Preventing African-American Employees From Discussing Their WOrkplace Experiences of Racism
The Daily Journal published a front page article today discussing non-disclosure agreements that prevent African-American employees who have settled their claims out of court from speaking about their workplace experiences of racism. Lauren Teukolsky is quoted about the parallels between the Black Lives Matter movement and the #metoo movement, and her prediction that the political pressure generated by BLM may eventually result in the California Legislature banning non-disclosure agreements in all harassment and discrimination cases (they are currently banned only in sexual harassment cases).
The Daily Journal article states: “The two bills [one of which prohibits non-disclosure agreements in sex harassment settlements] were among several that came out of the #MeToo movement, which ‘created intense political pressure for women who had previously been bound by confidentiality agreements to come forward and be able to tell their stories without fear of retribution,' said Lauren Teukolsky, who represents employees at Teukolsky Law APC. 'There is absolutely a parallel that can be drawn between #meToo and the Black Lives Matter movement,' she said. 'As the Black Lives Matter movement grows and expands, I do think there is going to be a push in the Legislature to end non-disclosure agreements potentially in all discrimination cases and in all harassment cases. There’s just no reason why the ban on NDAs should be limited to sexual harassment.'"
If you have experienced harassment or discrimination in the workplace, contact us today for a free consultation.
On Wednesday, July 29 at 3pm, Lauren Teukolsky will present a training organized by the Legal Aid Foundation of Los Angeles on "Employment Issues During COVID-19: How Legal Services can Make a Difference for Low-Wage Workers." Pro bono attorneys, labor advocates, and others interested in workers' rights are encouraged to attend this live event. Ms. Teukolsky will be joined by two other employment law experts, Victor Narro and Matthew Clark.
The panel will delve into the impact of the pandemic on low-wage workers and how the legal community can make a difference. Ms. Teukolsky will be discussing leave laws, accommodations for employees with disabilities, wage-and-hour issues, Labor Code protections for workers who complain about unsafe workplace conditions, and other hot topics being faced by low-wage workers during the pandemic. The registration link is here.
McDonald's Employees Represented by Teukolsky Law Take First Step Towards Lawsuit to Protect Them from COVID-19
On May 19, 2020, six McDonald's employees represented by Teukolsky Law APC and Altshuler Berzon LLP filed administrative actions alleging that McDonald's has failed to take proper steps in three of its restaurants to protect its employees from COVID-19. Two of the restaurants are in Los Angeles; one is in San Jose. One of the Los Angeles restaurants, located in West Adams, had an outbreak of three employees who tested positive for COVID-19. The other Los Angeles restaurant, located in Monterey Park, had one worker test positive for COVID-19.
As alleged in the administrative actions, McDonald’s failed to take proactive steps, such as screening employees for COVID-19 symptoms, that would have prevented employees from working while sick. In the Monterey Park location, the employee who eventually tested positive for COVID-19 was allowed to return to work after calling out sick the day before – without any screening whatsoever, even though her managers knew she wasn’t feeling well in the middle of a global COVID-19 pandemic. Even after she went home sick, the actions allege that managers failed to warn her co-workers that she had come to work with COVID-19 symptoms, which means they touched the same surfaces she touched, and unknowingly exposed themselves and their family members.
The complaints further allege that McDonald's has failed to properly sanitize its restaurants, and has failed to provide its workers with basic protective equipment like masks and gloves. The complaints allege that there is not enough hand sanitizer or soap for workers to keep their hands clean. Managers are not enforcing proper handwashing, or permitting workers to take enough breaks to wash their hands.
Also today, workers in Chicago filed a class action lawsuit against McDonald's with similar allegations that McDonald's has failed to keep employees safe, thereby creating a public nuisance endangering the health and safety of the public at large.
If you believe that your employer is not taking proper steps to keep you safe from COVID-19, contact us today for a free consultation by calling (626) 522-8982 or through our website.
Teukolsky Law attorney Ella Hushagen has created a new video for the California Employment Lawyers Association (CELA) discussing health insurance options following job loss. This topic is particularly germane for hundreds of thousands of Californians who are predicted to lose their jobs as a result of the COVID-19 pandemic. Losing health insurance during one of the biggest public health crises in recent memory is unimaginably stressful and could have ruinous consequences for individuals who require significant medical intervention as a result of COVID-19. In some cases, an employee's entire family will lose health coverage. It is important for all employees to understand their options and to have health care coverage. Watch Ella's video here.
CELA is a statewide organization of over 1,200 California attorneys who devote the major portion of their practices to representing employees in individual employment cases and class actions, including cases involving unpaid wages, discrimination, harassment, retaliation and whistleblowing.
Healthcare workers are on the front lines battling the COVID-19 pandemic. More than ever, health care facilities must provide workers safe and lawful working conditions.
The law requires health care facilities — such as hospitals, nursing homes, outpatient clinics, laboratories, and medical transportation services — to protect workers from COVID-19 infection by providing: 1) written exposure control procedures; 2) training; 3) work practices designed to limit exposure; and 4) personal protective equipment (PPE), including gloves, gowns, eye protection and masks. More information about these requirements can be found here.
The novel Coronavirus has generated unprecedented demand for PPE supplies, and hospitals are running perilously low on masks. The California Department of Industrial Relations (DIR) has issued interim guidance on Coronavirus regarding efficient use of masks, and when and how they may be reused. The guidance cautions that surgical and other non-respirator face masks do not prevent the inhalation of virus particles, and should not be used. More information can be found here.
California law protects workers from being fired or otherwise retaliated against for refusing to work under unsafe conditions, or for making a complaint regarding safety. Call us today at (626) 522-8982 for a free legal consult if you think you have been subjected to unlawful retaliation.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.