Court of Appeal: Port of Long Beach Truckers Are Employees, Not Independent Contractors

AAEAAQAAAAAAAAM2AAAAJDRhMTQ4ZGVjLTQzNWYtNGFmMi1hNGI0LWM5NGViZjdjN2JjNw

 

The California Court of Appeal (Second District) has ordered publication of an opinion affirming a judgment in yet another employee-misclassification case.

 

Garcia v. Seacon Logix, Inc., involved allegations of employee misclassification brought by four Port of Long Beach truck drivers for Seacon before the Division of Labor Standards Enforcement (“DLSE”).  The DLSE found the drivers should have been classified as employees and not independent contractors.  Seacon appealed the ruling to the Los Angeles Superior Court, where the court agreed with the DLSE.  Seacon then appealed the trial court’s ruling, which was upheld by the Court of Appeal in an opinion certified for publication on July 30, 2015.

 

Important to the Court of Appeal’s opinion, as in any employee misclassification case, was the amount of control Seacon exercised over the drivers.  The trial court found that the drivers credibly testified that Seacon tightly controlled the manner and means in which the work was performed, including controlling the drivers’ work hours, absences from work, delivery assignments, and use of trucks Seacon leased to them.  The Court also gave short shrift to Seacon’s argument that agreements signed by the drivers defined them as independent contractors, observing that “the language in the agreement giving the drivers control over their work and describing them as independent contractors is not dispositive.”

 

Employers and HR professionals utilizing independent contractors on a regular basis are advised to continually and diligently evaluate their independent contractor agreements, practices, and policies with their employment counsel to protect themselves against costly lawsuits.

 

The full opinion in Garcia v. Seacon Logix, Inc. can be found here.

 

For more information contact:
David M. Prager, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: dprager@gibbsgiden.com

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

Attorney Newsletter Advertisement

Los Angeles County Supervisors: $15 Minimum Wage by 2020

AAEAAQAAAAAAAAM2AAAAJDRhMTQ4ZGVjLTQzNWYtNGFmMi1hNGI0LWM5NGViZjdjN2JjNw

On Tuesday, the Los Angeles County Board of Supervisors voted to raise the minimum wage in unincorporated areas of Los Angeles County over the next five years.  The minimum wage is set to reach $15 per hour by 2020 for business with more than 26 employees.  For businesses with fewer than 26 employees, the wage increases will be delayed one year.

The minimum wage is set to incrementally increase over the next five years:  increasing to $10.50 on July 1, 2016; $12 on July 1, 2017; $13.25 on July 1, 2018; $14.25 on July 1, 2019; and $15.00 on July 1, 2020.   The increase for unincorporated areas mirrors the increase recently approved by the Los Angeles City Council in May and signed into law by Los Angeles Mayor Eric Garcetti on June 13.

The increase comes on the heels of minimum wage ordinances in various cities in California, including San Francisco and San Diego.

With the federal minimum wage set at $7.25 an hour, California’s statewide hourly minimum set at $9.00 (and increasing to $10.00 on January 1, 2016), and the patchwork of local ordinances governing minimum wages developing across the state, California employers must be diligent in complying with the myriad of minimum wage laws.

Read more about the minimum wage increase in Los Angeles County here.

For more information contact:
David M. Prager, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: dprager@gibbsgiden.com

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2015 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©

Attorney Newsletter Advertisement

Are You Using Updated Notary Acknowledgment and Jurat Forms?

Although many businesses have updated their forms to reflect the new Notary language required for Certificates of Acknowledgment and Jurats, we still see many obsolete forms floating around.  Documents with outdated Notary Acknowledgments or Jurats are being rejected by County Recorder offices throughout the State of California.

For those of you not already aware, the California Legislature recently passed a law to make it clear that the Notary’s seal and signature do not authenticate or endorse the contents of a document.  The purpose of the law was to make sure that consumers unfamiliar with a Notary’s duties would not be more inclined to trust a fraudulent document simply because it was notarized.

The law, effective January 1, 2015, requires the following new language to appear word-for-word at the top of the notary certificate in a box:

“A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.”

If you haven’t already done so, it is important to update all of your forms that require a Notary Acknowledgment, Jurat or Proof of Execution Certificate.  Links to updated  PDF forms can be found below:

Notary Acknowledgment (Effective January 1, 2015):

http://notary.cdn.sos.ca.gov/forms/notary-ack.pdf

Jurat (Effective January 1, 2015)

http://notary.cdn.sos.ca.gov/forms/notary-jurat.pdf

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

The content contained herein is for informational purposes only, may not reflect the most current legal developments and does not constitute legal advice. The transmission of information in this post (or any transmission or exchange of information over the Internet), or by any of the included links, is not intended to create and does not constitute an attorney-client relationship. The opinions expressed in this post are the opinions of the author only and may not reflect the opinions of the author’s law firm. No representations are made as to the completeness, accuracy or validity of any information contained in this post.

Attorney Advertisement
Copyright 2015 Gibbs Giden ©

Do Your Website and Mobile App Comply with the ADA?

wheel chair

“Does my company really have to worry about the ADA?” Whether you are a brick-and-mortar store, exclusively online retailer or any other business with a website or mobile app, the answer appears to be “yes.”

Many businesses are surprised to learn that they may be in violation of federal and state anti-discrimination laws by using a website or mobile application that are not accessible to those with disabilities. As a recent series of threatened lawsuits and Department of Justice press release indicate, all companies that have a web and mobile presence may be targets for claims that they fail to comply with Title III of the Americans with Disabilities Act (ADA) and analogous state statutes (such as California’s Unruh Civil Rights Act). Although trial and district courts in the Ninth Circuit have so far rejected some claims, potential consequences for violations of such laws may be time-consuming and expensive. Moreover, the Department of Justice is actively enforcing website accessibility as demonstrated by last month’s settlement with the owners and operators of the nation’s leading online grocery store, peapod.com

Companies around the country are often first learning about these compliance issues when they receive a letter from a plaintiffs’ ADA advocacy law firm demanding compliance and, in many cases, statutory damages. Many of these claims assert that a company’s website or mobile application lacks certain functionalities that are necessary for disabled persons to access and use such website or mobile application. These functionalities include, for example, the ability of a user to access all website features using a keyboard rather than a mouse, and including alternative text captions for website and mobile application audio and features that work with “text-to-speech” screen reader technology.

It is important for companies to be proactive and at the very least, evaluate their website and mobile applications to exhaustively determine and remedy any accessibility issues. Companies should maintain a constant dialogue with their in-house and third-party web and mobile application designers and programmers to remedy any current and future accessibility issues.

Being proactive will help a company avoid potential consequences for statutory violations. In addition to time and goodwill factors, California’s Unruh Civil Rights Act imposes a $4,000.00 statutory penalty for every violation, whereas the ADA presently permits injunctive relief and the recovery of attorneys’ fees.

Although the Department of Justice is not expected to release compliance standards until 2015, settlement agreements and consent decrees hint that the Department of Justice may require websites and mobile applications to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA), developed by a private industry group. The Department of Justice has required compliance with the WCAG 2.0 AA in the past, including in the DOJ’s consent decree with H&R Block in 2013 and, more recently, in the Department of Justice’s November 2014 settlement with owners and operators of peapod.com. Under the settlement agreement with peapod.com, America’s leading online grocer is required to adopt measures to ensure that users with disabilities are able to fully and equally enjoy the various goods, services, facilities and accommodations provided through http://www.peapod.com including: (1) designating an employee as web accessibility coordinator for http://www.peapod.com, who will report directly to a Peapod, LLC executive; (2) retaining an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications; (3) adopting a formal web accessibility policy; (4) providing a notice on http://www.peapod.com soliciting feedback from visitors on how website accessibility can be improved; (5) providing automated accessibility testing and accessibility testing by individuals with a variety of disabilities of http://www.peapod.com and its mobile applications; and (6) providing mandatory annual training on website accessibility for Peapod’s website content personnel.

Don’t wait until you get a complaint from the Department of Justice (the entity tasked with enforcing the ADA) or a demand letter from a plaintiffs’ ADA advocacy law firm. If you own or operate a website or mobile application, be proactive.

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

The content contained herein is for informational purposes only, may not reflect the most current legal developments and does not constitute legal advice. The transmission of information in this post (or any transmission or exchange of information over the Internet), or by any of the included links, is not intended to create and does not constitute an attorney-client relationship. The opinions expressed in this post are the opinions of the author only and may not reflect the opinions of the author’s law firm. No representations are made as to the completeness, accuracy or validity of any information contained in this post.

Attorney Advertisement

Protect Your Employees from Creepy Customers

Article cover image

In a recent federal court lawsuit against Costco, the warehouse retail giant is being charged by the U.S. Equal Employment Opportunity Commission for creating a sexually hostile workplace for failing to protect a female worker from “unwelcome advances” from a customer.

John Rowe, EEOC’s district director in Chicago, said the agency’s investigation found the employee had repeatedly complained to managers at one of its stores. She was “pursued, approached, and confronted in the Costco by the man,” stated an EEOC release. “One of her managers apparently told the young woman that he agreed the man was ‘not right’ and that Costco would monitor the situation,” Rowe said. “But what actually happened was that when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer.”

Eventually, the employee resigned because of the harassment and filed a claim with the EEOC.

John Hendrickson, EEOC regional attorney in Chicago said, “All employers have a duty to protect employees from sexual harassment whatever form that harassment may take – whether it’s lewd remarks, groping, propositioning or stalking. No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee. That’s particularly true when the harassment is especially egregious. If the employer permits the harassment to continue, it’s compounding its liability and troubles.”

Although most sexual harassment claims arise from harassment in the workplace by a supervisor or co-worker, this complaint against Costco serves to remind employers that they may be liable for sex discrimination if the harasser is a client or customer and the employer fails to take proper steps to protect an employee. It is imperative to training employee to promptly report incidents of alleged sexual harassment, including those perpetrated by customers, and make sure employees know whom to contact to report an incident. In addition, prompt and proper follow-up is essential, as well as avoidance of any actions against the employee who filed the complaint that could be construed as retaliation.

For more information contact:
Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

The content contained herein is for informational purposes only, may not reflect the most current legal developments and does not constitute legal advice. The transmission of information in this post (or any transmission or exchange of information over the Internet), or by any of the included links, is not intended to create and does not constitute an attorney-client relationship.  No representations are made as to the completeness, accuracy or validity of any information contained in this post.

Attorney Advertisement