Law Office of Douglas A. Prutton

In another interesting court opinion the California Supreme Court decided yesterday that time clocks that "round" time to the nearest 10 minutes cannot be relied upon by employers to avoid providing full 30 minute meal and rest periods. The court succinctly summarized the law regarding meal and rest periods as follows: "An employer is liable only if it does not provide an employee with the opportunity to take a compliant meal period. The employer is not liable if the employee... chooses to take a short or delayed meal period or no meal period at all. The employer is not required to police meal periods to make sure no work is performed. Instead, the employer’s duty is to ensure that it provides the employee with bona fide relief from duty and that this is accurately reflected in the employer’s time records. Otherwise, the employer must pay the employee premium wages for any noncompliant meal period. If time records show noncompliant meal periods, then a rebuttable presumption of liability arises." See more

The 9th Circuit Court of Appeals yesterday issued an opinion in a hotly-contested case involving California-based flight attendants of Virgin Airlines. The court ruled that Virgin was subject to California law providing for overtime pay, meal and rest breaks, itemized wage statements, and waiting time penalties. The Court also concluded though that block-time payments were acceptable under California law. Whether all these rulings would apply to other airlines is not clear as the Court noted that Virgin had close ties with California. The case is Bernstein v. Virgin America, Inc..

Yesterday the Second District Court of Appeal in Los Angeles issued an opinion in a case that is pure 21st Century. A middle school teacher alleged she suffered from multiple symptoms of chronic pain as a result of being exposed to the school's w-fi system. Her doctor diagnosed her with electromagnetic sensitivity or "microwave sickness." She requested an accommodation for her disability under the state Fair Employment and Housing Act (the FEHA). The school disabled the rou...ter in her room and in an adjoining classroom, but the teacher's symptoms persisted. The teacher requested that the school perform additional testing and consider "paints and other forms of shielding materials." The school eventually refused concluding that the wi-fi system was safe. The trial court threw the case out, but the appeals court reversed finding that the teacher had adequately stated a failure to accommodate claim and the case could proceed forward. It should be noted that under the Americans with Disability Act, electromagnetic sensitivity is not a recognized disability, but under the California FEHA the definition of disability is much broader than under the ADA. The case is Brown v. LA Unified School District. See more

An excerpt from a California appeals court opinion issued yesterday. Good for all citizens to know.

Cal-OSHA has issued new rules requiring employers to provide masks for their employees, and masks must be worn at all times at work indoors unless the employee is alone in an office or eating. There are other requirements too, but these stand out.

Too often, I have encountered the following scenario. A person is seriously injured in a car wreck and the party at fault had minimum policy limits of $15,000.00. The case settles for $15,000.00 even though the case may be worth hundreds of thousands of dollars, simply because there is no other source of money. The client laments: "this is not fair!" There is a morale to the story, however - buy a good amount of uninsured/underinsured motorist coverage on your own auto insurance policy before you get in a wreck yourself. In the scenario described above, the injured person can receive the $15,000.00 and then turn to her own underinsured motorist policy for more. Ask your insurance agent for quotes - you might be surprised at how little it costs.

When people are sued they typically need to be personally served with the lawsuit. If they cannot be found the law provides for service by publication which involves publishing the lawsuit in the newspaper. In recent years, some states have amended their laws to permit the service of legal papers by email or social media. However, California is not one of them. A court of appeal in Los Ángeles though issued an opinion yesterday in a civil harassment case strongly suggesting to the California legislature that it consider passing a law permitting service by email or social media (where personal service cannot be effected). Seems like a good idea.

California adopted a new law this year that forbids race and gender from being considered in calculating an injured person’s loss of future earnings. This is believed to be the first such law in the country. It should result in larger verdicts (and settlements) for seriously injured women and minorities.

The first oath I took as a lawyer.

The California Supreme Court in 2018, in its Dynamex decision, made it very difficult for employers to claim that their workers are independent contractors, not employees. The Court adopted the "ABC" test concluding that all workers are "employees" unless (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker perform...s 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. The California Supreme Court recently held that Dynamex applies retroactively - meaning that even for people working before Dynamex was decided the ABC test applies. So, if you believe you may have been wrongfully classified as an independent contractor, contact me. See more

In a case of major interest to many parties, the State of California has sued Uber for classifying its drivers as independent contractors, as opposed to employees. The trial court issued a preliminary injunction restraining Uber from treating its employees as independent contractors while the case proceeds forward. The appeals court in San Francisco on October 22, 2020 upheld the preliminary injunction finding that the law (Labor Code section 2775/AB5) appears to classify Uber drivers as employees.

Apple and another company (Hooked) had meetings regarding the sale of Hooked to Apple. Instead of purchasing Hooked, Apple solicited and hired three Hooked engineers. Hooked sued and lost, the court relying primarily on California’s strong policy of allowing employees to work where they want.

A new law in California has greatly expanded family and medical leave rights. Beginning this January 1, California employers with 5 or more employees must provide eligible employees with up to 12 weeks of unpaid job-protected leave during any 12 month period to bond with a new child, or to care for themselves or a child, parent, grandparent, sibling, spouse or domestic partner. To be eligible, the employee must have worked for 12 months (and worked 1,250 hours in the previous 12 month period).