The California State Assembly passes a Bill that codifies the infamous “ABC” test for independent contractor determination — will the Senate follow suit, and will the Governor sign the new legislation into law?

The New Bill

On May 29, 2019, by a 55-11 vote, the state Assembly passed AB 5, a bill that would codify the California’s Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court.  
Continue Reading

On June 10, 2019, the United States Supreme Court unanimously held that state law does not apply to the Outer Continental Shelf (OCS) in situations when federal law addresses the relevant issue at hand.

In Parker Drilling Management Services, Ltd. v. Newton, the Supreme Court declined to extend California’s wage and hour laws to employees working on offshore drilling platforms subject to the Outer Continental Shelf Lands Act.

The OCSLA extends federal law to the subsoil and seabed of the outer continental shelf and to all structures permanently or temporarily attached to the seabed for the purpose of developing, producing or exploring for oil. Under the OCSLA, the laws of an adjacent state only apply to the OCS to the extent “they are applicable and not inconsistent with” federal law.

Here, the US Supreme Court ruled that because the federal Fair Labor Standards Act (FLSA) addressed the relevant issues, the adjacent state law was inapplicable.


Continue Reading

The Office of Federal Contract Compliance Programs has updated the National Labor Relations Act rights poster that federal contractors and subcontractors are required to display under Executive Order 13496. The changes are minor, consisting of a new telephone number for the NLRB and hearing impaired contact information. But government contractors and subcontractors should replace their

[With special thanks to our summer associate Lennox Mark for his contribution to this post.]

From coast to coast, state and local governments are debating and enacting legislation to broaden workplace protections for employee dress and grooming practices. And not surprisingly, employee complaints regarding employer grooming policies — that such policies contribute to discrimination by unduly burdening certain racial characteristics, religious beliefs or health conditions — are on the rise.

In February 2019, the New York City Commission on Human Rights issued a statement of legal enforcement guidance expanding the definition of prohibited race discrimination to include discrimination based on hairstyle. The Commission explained that workplace “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate [local law].” By expressly including hairstyle as a protected characteristic, the Commission effectively created a new legal claim for Black employees who suffer adverse employment actions because their natural hairstyles fail to comport with previously accepted workplace rules.


Continue Reading

As we previously reported, in January, in Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Privacy Act (BIPA).

(By way of reminder, the Illinois BIPA prohibits gathering biometric data such as fingerprints without notice and consent. It also requires data collectors adopt a written policy and a destruction policy for data which is no longer required.)

In the wake of Rosenbach, dozens more class actions have been filed in Illinois state courts. Following Rosenbach,plaintiffs can seek injunctive relief and statutory penalties under the BIPA on a class-wide basis. Despite the flurry of activity by the plaintiff’s bar over the past several years, Illinois courts have only recently started addressing such claims. The rulings since Rosenbach demonstrate a strong commitment not to deviate from the Illinois Supreme Court’s holding.
Continue Reading

Please join us for a complimentary breakfast briefing in Deerfield, IL starting at 7:30 am, Friday, June 21. The program, approved for D&I CLE, will explore why it is critical for employers to promote a diverse and inclusive workplace and the potential legal ramifications of failing to do so. We will also hear from a

Hiring Entity:  When are gig workers employees?

Four Government Agencies & Courts:  It depends!

Trying to track the employment status of gig workers will make your head spin. Contractors? Employees? Super heroes?

In the last few weeks, four federal and California state agencies and courts — the US Department of Labor, the National Labor Relations Board, the Ninth Circuit Court of Appeals and the California Labor Commissioner — have all weighed in on the debate. And, the answer is — it depends.

Follow our script below to help make sense of the patchy legal landscape.


Continue Reading

Once again, Baker McKenzie attorneys, industry thought leaders and key clients from around the world convened (this time in New York) to answer this essential question: What is the future of work? 

One consistent theme that permeated many of our discussions can be summed up as: Inclusion or Bust.

What does this mean?

It means that as global employers, we’re moving beyond a singular focus on diversity. As guest speaker Vernā Myers says,

Diversity is being invited to the party. Inclusion is being asked to dance.”

To truly reap the rich rewards of a diverse workplace, companies must invest generously and continuously in inclusion. Many senior business leaders predict that companies that don’t will be left behind and may actually cease to exist entirely in the not too distant future.


Continue Reading

In last Thursday’s Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:

  1. Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex’s ABC test applies retroactively.
  2. It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
  3. Last, the Court issued guidance to the district court on remand reaffirming the difficulty of “passing” the ABC test.


Continue Reading

On April 10, the EEOC released its charge filing statistics for Fiscal Year 2018, which ran from October 1, 2017 to September 30, 2018. These annually disclosed statistics reveal continued trends in the employment litigation space and provide an opportunity for employers to ensure their policies and practices address issues arising in the ever-changing modern workplace.

Continue Reading