Last week, in Dynamex Operations West, Inc. v. Superior Court, 2018 WL 1999120 (Apr. 30, 2018) (Dynamex), the California Supreme Court upended the prevailing understanding of the independent contractor-employee distinction under California law. In a ruling that is certain to have wide-ranging repercussions for companies that rely on independent contractors, the Court declined to apply the multi-factor common law test derived from its 1989 decision in S.G. Borello & Sons, Inc. v. Dep’t of Indus. Rel’ns, 48 Cal. 3d 341 (1989) (Borello) to the question of whether a worker is an “employee” subject to the minimum wage and overtime protections of the California Industrial Welfare Commission’s (“IWC”) wage orders. Instead, the Court adopted a simple, three-part test that likely will expand the wage orders’ reach.
Author: Mark E. Terman
NLRB Interest Rate Will Increase to Five Percent
Board awards in unfair labor practice cases are usually premised in a make-whole remedy which, in the case of back-pay awards for example, include interest. Interest has been part of the remedy for decades. More recently, daily compound interest became the rule. The Board can reset the rate quarterly using the short-term federal rate plus three percent, which is the rate the IRS uses for underpayment of taxes. For several years, the rate was three or four percent, given the state of the economy. Interest awards can really add up, especially when a make-whole remedy impacts a large workforce and interest accrues over the many years it can take for final decision in a ULP case. As such, interest is normally a factor in litigation and settlement of these cases.
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Technical Foul – Your March Madness Office Bracket May Be Illegal
March Madness has arrived! The 2018 NCAA Basketball Tournaments tip-off March 15 and continue through the Women’s and Men’s National Championship Games on April 1 and 2 respectively. With this, comes the American tradition of companies and their employees betting on tournament outcomes through office bracket pools.
As lawyers, we have to point out that your company’s March Madness pool is very likely illegal under at least three federal gambling laws (the Professional and Amateur Sports Protection Act, the Interstate Wire Act of 1961, and the Uniform Internet Gambling Enforcement Act) and many state laws. And we would be remiss to not mention that there is a parade of horribles that could happen from permitting such workplace wagering.
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California at Work: New Labor Laws for 2018
*Originally published by CalCPA in the January/February 2018 issue of California CPA — the original article can be found here.
You may not have expected that the California Legislature in 2017 designated an official state dinosaur (Augustynolophus morrisi) and four state nuts (almond, pecan, walnut and pistachio), which are technically seeds, but that’s a separate article. Less surprising is that employer regulation and employee rights continue to expand in our state, the sixth-largest economy of the world. The rate of expansion, however, seems to have taken another pendulum swing: 304 bills introduced in 2017 mention “employer,” compared to 569 bills in 2016 and 224 in 2015. Most of those bills did not pass, and of the ones that did, most were not signed into law by Gov. Brown. Essential elements of several bills that became law affecting private employers, effective Jan. 1, 2018, unless noted otherwise, follow.
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Confidentiality and Nondisclosure Agreements (CA)
Mark Terman and Sujata Wiese authored a practice note for Practical Law titled “Confidentiality and Nondisclosure Agreements (CA).” In their note, Mark and Sujata discuss how companies can protect their information, including the use of confidentiality agreements, under California law.
Mark and Sujata address considerations involved in safeguarding a company’s confidential information, and substantive provisions and issues common to many commercial confidentiality agreements. They state that “having effective confidentiality agreements in place with other parties is necessary but not sufficient to protect an organization’s confidential information and data. Comprehensive protection requires the participation and coordination of management and staff at all levels across all functions, from finance and administration to marketing and sales. It often falls to the legal department, working closely with the information technology (IT) function and with the support of senior executives, to lead the company-wide information management and protection program.”
Topics addressed in the note include: company-wide information and data security policies; compliance with contractual obligations governing others’ confidential information; trade secrets; privacy and data security laws and regulations; and form, structure and key provisions of confidentiality agreements.
Yes, Your March Madness Office Bracket is Technically Illegal
March Madness has arrived! The 2017 NCAA Basketball Tournaments tip-off tonight (March 15) and continue through the Women’s and Men’s National Championship Games on April 2 and 3 respectively. With this, comes the American tradition of companies and their employees betting on tournament outcomes through office bracket pools.
As lawyers, we have to point out that your company’s March Madness pool is very likely illegal under at least three federal gambling laws (the Professional and Amateur Sports Protection Act, the Interstate Wire Act of 1961, and the Uniform Internet Gambling Enforcement Act) and many state laws. And we would be remiss to not mention that there is a parade of horribles that could happen from permitting such workplace wagering.
Continue reading “Yes, Your March Madness Office Bracket is Technically Illegal”