On June 15, 2020, the Supreme Court in Bostick v. Clayton ruled that employers cannot fire an employees based on their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. The majority opinion was authored by Justice Neil Gorsuch. While to many, it may seem surprising that Justice Gorsuch—a conservative and Trump appointee—joined the majority and authored the opinion, a closer look at the opinion’s reasoning shows that it fits squarely within Justice Gorsuch’s textualism approach to interpreting the law. Justice Gorsuch grappled with the meaning of “discrimination based on sex” in the statute, instead of underscoring Title VII’s general underlying purpose of anti-discrimination, to reach his conclusion. The Court stated, “It is impossible to discriminate…Read More
On November 3, 2020, California voters will have the option to vote yes or no on Proposition 22, which changes the classification of drivers for app-based transportation and delivery. The initiative is a response to the rapidly changing landscape of worker classifications in the gig economy. On April 30, 2018, the California Supreme Court created an “ABC” test to determine whether an individual was properly classified as an independent contractor or an employee. Dynamex Operations W. v. Superior Court, (2018) 4 Cal. 5th 903. Importantly, employees, unlike independent contractors, are afforded certain protections such as overtime pay, minimum wage, and meal and rest periods. In 2019, Dynamex was codified into law by the California Legislature pursuant to Assembly Bill No. 5. Under the Dynamex and…Read More
The Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including, but not limited enforcing a prohibition against discrimination based on age, over 40. Since the development of the COVID-19 crises, the EEOC has created subsequent guidance documents to ensure employers maintain compliance with their legal obligations. The Center for Disease Control (“CDC”) has stated that individuals age 65 and over are at a higher risk for a severe case of COVID-19. As such, some employers may believe, “benevolent[ly],” that they may require an older employee to work from home against the employee’s wishes. This type of involuntary exclusion is express prohibited under the Age Discrimination in Employment Act (ADEA). At the other end of the spectrum, unlike the Americans with Disabilities Act, the ADEA does not…Read More
The nation—in fact, the world—has reached a new level of collective consciousness of systemic racism in the United States. For the first time, the United States may be forced to properly achieve truth and reconciliation for its long history of racial violence against African Americans. Advocates have made clear that this movement is ongoing. Systemic racism not only exists in policing, but also in healthcare, education, and employment. Attorneys who represent workers in employment discrimination cases against their employers are all too familiar with the reality that we are far from living in a post-racial society. African people and other minorities face ongoing discrimination in the workplace. Black workers earn only three-quarters of what white workers earn. Even with advanced…Read More
The California Constitution states “every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Under Cal. Lab. Code § 1102 an employer is explicitly prohibited from attempting to “coerce or influence his employees” by threatening termination or “loss of employment” in an effort to encourage or discourage the employee from engaging in “any particular course or line of political action or political activity.” More specifically, an employer shall not “discharge an employee or in any manner discrimination, retaliate, or take any adverse action against any employee or applicant . . . [for] conduct delineated in this chapter.…Read More
The Ninth Circuit in its en banc decision Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020) held that employers cannot use an employee’s prior pay as a “factor other than sex” as a defense to gender-based pay disparities under the federal Equal Pay Act. The Equal Pay Act (“EPA”) prohibits paying an employee at “a rate less than the rate at which [the employer] pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility.” Employers may defend an Equal Pay Act claim by demonstrating that the pay disparity is “pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity…Read More
An employee who has been misclassified as an independent contractor will face multiple road blocks as they seek out unemployment benefits. The California Employment Development Department (“EDD”) generally offers unemployment insurance (UI) to employees who have lost their job and meet the program edibility requirements. Relevantly, since employment is the basic condition for unemployment eligibility, the individual seeking UI may not be an independent contractor. Thus, the classification of the individual is essential. Once an individual files a UI claim, the EDD will then mail a Notice of Unemployment Insurance Claim Filed to the employer. The employer may then provide the EDD with relevant eligibility information. The EDD will then send the claimant one of several responses. The EDD may send claimant a Notice of…Read More
In Comcast Corporation v. National Association of African American-Owned Media, (2020) 140 S.Ct. 1009, the Supreme Court resolved a circuit split regarding Plaintiff’s burden of proof when alleging a violation 42 U.S.C. § 1981. Reversing the Ninth Circuit, the Court found that a Plaintiff must show, at the pleading stage, that “race was a but for cause of [Plaintiff’s] injury” The opinion explicitly declined to address the question of whether Section 1981 “guarantees not only the right to equivalent contractual outcomes . . . but also the right to an equivalent contracting process.” (emphasis original). In her concurrence, Justice Ginsburg outlined why Section 1981 applies to both the contractual outcomes and the contracting process. She relied on the language of the statute,…Read More
On March 12, 2020, the California Supreme Court ruled in Kim v. Reins International California, Inc., (2020) 9 Cal. 5th 73, that an employee’s settlement of their individual labor claims does not extinguish their PAGA standing as an “aggrieved employee.” PAGA claims permit an “aggrieved employee” to sue for civil penalties as “the proxy or agent of the state’s labor law enforcement agencies.” An employee qualifies as aggrieved if they are someone who was “employed by the alleged violator and against whom one or more of the alleged violation was committed.” Cal Labor Code § 2699, subd. (c). In analyzing the standing requirements of PAGA the Court explicitly rejected an interpretation of “‘aggrieved’ as synonymous with having an unredressed injury.” PAGA standing…Read More
May 1st, International Workers’ Day, carries a new level of significance in the age of the COVID-19/coronavirus pandemic. It is no secret that workers who have been deemed “essential” to society functioning in the midst of this crisis are also the ones most at risk of contracting the coronavirus. The May 1 strike being led by Whole Foods, Amazon, Target, Walmart, FedEx, and Instacart workers is bringing to the fore potential liability for workplace safety issues. Workers have complained of lack of transparency from employers about COVID-19 cases within the workplace, as well as insufficient protective equipment, such as gloves, masks, and hand sanitizer. While the Occupational Safety and Health Administration (“OSHA”) requires employers to establish a workplace that is “free from…Read More