California Limits Confidentiality in Settlements of Sexual Harassment and Gender Discrimination Claims
On September 30, 2018, Governor Brown signed into law SB 820, which prohibits provisions in settlement agreements that prevent “the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action regarding … [a]n act of workplace harassment or discrimination based on sex, … or an act of retaliation against a person for reporting” such harassment or discrimination. See C.C.P. § 1001. The new law applies to agreements entered on or after January 1, 2019.
Aimed at preventing incidents of sexual harassment and gender discrimination from being hidden from public discourse, the new law will alter the calculus at the settlement stage. Employees will no longer need to be concerned about entering into agreements that prevent them from discussing issues they would prefer to discuss freely. Employers will no longer have the option of paying employees for silence about facts that may damage the employer's reputation.
The new law will still allow settlement amounts to be kept confidential, and will also allow confidentiality of the claimant's identity at the claimant's request.
The law appears to have a loophole: it applies only to “factual information related to a claim filed in a civil action or a complaint filed in an administrative action” – therefore, it does not appear to cover claims settled before an administrative complaint is filed.
If you have questions about confidentiality and sexual harassment settlements, feel free to contact Jhaveri-Weeks Law.
CALIFORNIA SUPREME COURT: EMPLOYEES GENERALLY ENTITLED TO PAY FOR EVEN SMALL AMOUNTS OF OFF-THE-CLOCK WORK
The California Supreme Court recently addressed whether employers are on the hook for small amounts of unpaid work that employees perform at the end of their shifts. The Court concluded that the plaintiff, a Starbucks shift supervisor, was entitled to be paid for tasks that required him to work between 4 and 10 minutes each day after clocking out. See Troester v. Starbucks Corp., S234969 (Cal. July 26, 2018), available here.
The legal question for the Court was whether there is a so-called "de minimis" exception (i.e., an exception for very small amounts of time) to California's rule that employees must be paid for all time worked. The federal law governing overtime pay – the Fair Labor Employment Standards Act – includes such a de minimis exception.
The Court held that California’s laws are stricter, requiring payment for the type of post-clock-out work that the Starbucks employee performed, even though the unpaid time was as brief as four minutes per day. The Court left open the question of whether unpaid work activities in other cases might be “so irregular or brief in duration” that it would be reasonable to require employers to compensate for them.
The Court offered several reasons for its decision: First, it noted that statutory wage-and-hour protections for employees in California are “scrupulously guarded against encroachment." Compare Augustus v. ABM Security Servs., Inc. (2016) 2 Cal.5th 257, 262 (strictly enforcing right to ten-minute rest periods). Second, the Court pointed out that when unpaid work is being performed but the working time is difficult to track, there is little reason why “the employee alone should bear the burden of that difficulty.” Third, the Court pointed out that class action procedures are premised upon the ability to challenge violations that are small as to a particular individual but are significant in the aggregate. And fourth, the Court noted that new technologies make it easier to track employee work time today than was the case in 1946, when a key federal case on the de minimis issue was decided.
The case provides helpful guidance concerning when employers in California may be held liable to employees who have routinely performed small amounts of unpaid work.
Employee or Independent Contractor? New Dynamex Test from California Supreme Court Provides Needed Clarification
In a landmark decision, the California Supreme Court has adopted a new test for whether a worker is an employee or an independent contractor under the California Wage Orders governing entitlement to minimum wages and overtime pay, the right to meal and rest breaks, and many other aspects of employment. See Dynamex Operations W., Inc. v. Sup. Ct. of L.A. Cnty., S222732 (Cal. Apr. 30, 2018).
Prior law provided several definitions of "employee" under the Wage Orders, including a broad but cryptic definition stating that anyone who was "suffered or permitted to work" was an employee. Interpreted literally, this definition made little sense, because it would cover even a quintessential independent contractor, such as the plumber who comes to fix your sink. For that reason, the "suffer or permit" standard had been a looming uncertainty for years. The Dynamex decision ends the uncertainty by adopting the so-called "ABC Test" for when a worker has been "suffered or permitted" to work such that she or he is an employee under the Wage Orders. Under Dynamex's ABC Test, a worker is not an independent contractor under the California Wage Orders unless the hiring entity proves: "(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity."
From the perspective of the plaintiffs' bar and workers' rights community, the adoption of the ABC test will be a welcome development in countering what felt to many to be flimsy efforts to disguise employee workforces as collections of independent business owners. The facts of the Dynamex case involved delivery drivers who had been classified as employees, but who were then reclassified as independent contractors doing the same delivery work but with fewer protections and at less cost to the defendant.
The Court's newly adopted test should make class certification more likely in independent contractor misclassification cases: Because each prong of the ABC test must be satisfied by the employer, if even a single prong will stand or fall on a classwide basis, a strong argument for commonality will exist.
In addition to protecting employees, the Court expressed a desire to ensure that employers would understand in advance how to classify their workers. Clarification of the standard should be a welcome development for all stakeholders, although the ruling may result in some employers' current policies falling out of an arguably grey area and into the realm of clear misclassification. The Court also expressed a desire to level the playing field by ensuring that companies that classify their workers as employees will not be at a disadvantage to competitors who might otherwise have taken an aggressive view of the vagueness of the law to classify similar workers as independent contractors.
The Court's holding was limited to the context of the California Wage Orders, with the Court specifically declining to rule on the employee--independent contractor distinction under California Labor Code provisions that are not part of the wage orders. However, similar developments under those laws seem likely in the wake of Dynamex.
William Jhaveri-Weeks is the founder of The Jhaveri-Weeks Firm, a San Francisco-based civil litigation practice for individuals and organizations.