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California Lawmakers Struggling to Clarify Gig Worker Status

Robes and baby-kissing aside, lawmaking can be messy.

Judges sometimes wash their hands of decisions, telling legislators it's their problem. Legislators sometimes blow back with their own versions of judicial opinions.

In California, lawmakers are trying to clean up a major issue in the gig economy. But every lobbyist knows, it's like making sausage -- messy.

The employment landscape has changed drastically over the past year, with social media campaigns and even law student run groups affecting real change in the legal industry. Now, California employment lawyers might want to spend some time getting some relevant training to make sure they know what to do when a client shows up with a #MeToo case.

On either the plaintiff or defense side, in these divisive times, getting the right training to handle these matters can make the difference between winning your client's case and tanking the client's already tarnished reputation. Fortunately, the California Judges Association and The Rutter Group are offering an updated annual training, CJA/TRG Employment Litigation 2019: Facing Workplace Realities in Divisive Times, in just a few short weeks. (Disclaimer: The Rutter Group is a sister company to FindLaw.)

Court: Employers Need Permission for Background Checks on Workers

At times the law makes more sense for some people than for others.

Take the California Supreme Court decision in Connor v. First Student, Inc., for example. The justices basically said employers must have workers' permission before doing background investigations on them.

It seems reasonable for workers, although it was apparently confusing for employers.

There's no doubt about it, the public employment retirement system throughout the state of California is not doing well.

To remedy the retirement problem, the City of San Diego's voters passed a measure in 2012 to make new public employees get a 401(k) instead of a pension. However, the city's union reps were not consulted by the mayor who pushed the initiative onto the ballot, and that failure to meet and confer with the union has been the center of much litigation, both before and after the measure passed. Now, the Supreme Court of California has even chimed in.

Employers Must Pay Workers for 'Off-the-Clock' Minutes

Answering a question in a federal case, the California Supreme Court said employers must pay hourly workers for time spent "off-the-clock" doing company work.

In Troester v. Starbucks Corporation, a manager sued for time spent closing his store, locking up and making sure employees found rides home. It took him about 10 minutes a day after clocking out.

The California Supreme Court said that is enough to be paid, setting the stage for a major shift in wages for California. Now the case goes back to the U.S. Ninth Circuit Court of Appeals, which had asked for the state court's opinion.

Police Can Be Disciplined for Racist, Homophobic Texts, Court Rules

A California appeals court cleared the way for disciplinary proceedings against San Francisco police officers for sending homophobic and racist text messages in 2012.

A trial judge had dismissed the case, saying the department filed charges after the statute of limitations period. But the First District Court of Appeal said the department was cooperating with a federal criminal investigation at the time, which extended the deadline.

The decision, holding that the statute of limitations was stayed during a criminal trial, is legally interesting. But the backstory is the stuff of police corruption movies.

California Gig Workers Win More Benefits at State Supreme Court

The gig economy may never be the same after the California Supreme Court expanded the definition of employee to include workers who had been treated as independent contractors.

In Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, the state supreme court resolved an issue that has been at the heart of litigation against companies like Uber and Lyft. Although every case is different, there is a new standard in California.

Independent contractors are workers who perform work that is "outside the usual course of the hiring entity's business," the high court said. That ruling is a gig economy game-changer.

The California Supreme Court has just settled one hotly disputed overtime issue by deciding that a flat sum bonus is calculated as part of the regular rate of pay for overtime purposes.

If you're not a labor and employment attorney (or even if you are), this is probably pretty confusing. But it actually seems to make quite a bit of sense once it is unpacked, and particularly after the facts of the underlying case, Alvarado v. Dart, are understood.

Taxi Drivers Lose Uber Appeal

A recent decision certified for publication out of California's First Appellate District rejected a potential taxi driver class action against Uber. The claims in Goncharov v. Uber were based on allegations of income and passenger appropriation as a result of Uber, essentially, not playing by the rules.

However, as the appellate decision explains, even though Uber didn't play by the rules, the rules didn't quite exist. As a result, Uber reached a settlement with the CPUC to allow them to operate while the final rulemaking for TNCs (Transportation Network Companies) were still underway. As the court reasoned, this left taxi drivers with no viable claims.

Statewide Class of Janitors Certified in Wage Case

A California appeals court re-wrapped its pre-Christmas decision, allowing a class-action to proceed on behalf of janitorial workers for wage violations.

In the ABM Industries Overtime Cases, the First District Court of Appeals certified the class action on Dec. 11, 2017. But the court made a minor modification and published the decision on Jan. 10, 2018.

For some 35,000 janitors, it was all's well that ends well. But for the trial judge, maybe not so much.