Governor Vetoes AB 2874 and SB 1583

AB 2874 (here)would have lifted the $150,000 cap on damages available in administrative hearings at the Fair Employment Housing Commission;

SB 1583 (here) would have imposed penalties on non-lawyer consultants who gave erroneous advice on classifying employees as independent contractors.

Terminated.

Greg

President Signs ADA Amendments Act

President Bush signed a bill significantly reforming the Americans With Disabilities Act. The new law, which takes effect on January 1, 2009, primarily overturns 9 years of case law interpreting the definition of "disability" under the ADA. Our article on the new law is here. The text of the law is here. Acronym lovers will likely be disappointed by "ADAAA."

DGV

Court of Appeal Upholds Independent Contractor Status

The Court of Appeal rejected a plaintiff's claim that he was an employee rather than an independent contractor. The plaintiff alleged that the independent contractor agreement's "at will" clause established employee status. The court of appeal disagreed, holding that the other indicia of contractor status were so strong that they overcame the at-will employment clause. The court found persuasive that the company did not control the worker, an inspector, at the job site, that he provided his own tools and equipment, that he performed skilled work, and the parties' agreement contemplated the independent contractor relationship.

The case is Varisco v. Gateway Science and Eng'g and the opinion is here.

Avoiding Wage and Hour Liability?

The best way to avoid violating California's wage and hour laws is to become a charter county! OK, you might need an amendment to the constitution, but it may be worth it. In Dimon v. County of L.A. (here), the plaintiffs brought a meal and rest period class action on behalf of deputy probation officers. The trial court dismissed the case on the ground that California statutes governing meal and rest periods were inapplicable to Los Angeles County, because it is a charter county. The court of appeal agreed. This case is similar to Curcini v. Alameda County, which we discussed here.

DGV

Court of Appeal Vacates Denial of Class Certification

A delivery company's drivers brought a putative class action, claiming they were misclassified as independent contractors. The trial court denied class certification. The court also refused to allow pre-certification discovery of the putative class members, relying on case law that has since been overruled. Division 7 of the Second District Court of Appeal vacated the order denying certification, in great part because the trial court denied the plaintiff's motion to compel the identities of class members.

The case is Lee v. Dynamex, Inc. and the opinion is here.

DGV

San Francisco Employers - Mandatory Transportation Benefit Coming

The San Francisco Supervisors passed a new ordinance requiring certain employers to provide certain commuter benefits. The ordinance is here. Here are the highlights:

Covered employers: employ 20 employees or more (anywhere, not just in SF).

Eligible employees: non-exempt employees who perform 10 or more hours of work in SF per week.

Benefit: The employer can either (1) enroll in a "commuter check" program where pre-tax funds are taken out of employees' paychecks so they can purchase transportation with pre-tax dollars or (2) buy employees transit passes worth up to $45.00 per month or (3) operate a "van pool" to take employees to and from work.

Effective Date: On about December 8, 2008.

"Never mind."

The California Supreme Court dismissed review of Harvey v. Sybase, discussed here.

Brinker - Petition for Review filed

The plaintiffs in Brinker v. Superior Court (discussed here) filed their Petition for Review in the California Supreme Court. Docket is here.

New EEOC Guidance on ADA and Performance Standards

The EEOC issued an FAQ-style document explaining employers' obligations under the ADA with respect to enforcing performance standards. This is a helpful document that should clear up some confusion regarding whether and when a disability requires employers to ignore performance and conduct standards applicable to all employees generally. Here is the EEOC's publication.