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Read the latest news from Scali Rasmussen, including legal alerts and event listings.

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Scali Rasmussen Partner Jack Schaedel brought his expertise to this roundtable discussion, moderated by Daily Journal • California Lawyer. Rounding up this year’s top employment law issues, it provides an update on legislation spurred by the “Me Too” movement and the California Supreme Court’s ruling in Dynamex.

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On November 1, 2018, The Fourth District Court of Appeal in AMN Healthcare held that a post-termination employee non-solicitation provision for one year or longer was void under Section 16660, was an unlawful restraint on trade because it prohibited the employees from being able to practice their chosen profession.

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Time rounding is the practice of adjusting an employee’s hours worked (either up or down) to a certain increment of time. Some employers opt to round time entries for increased administrative ease and efficiency in recording and calculating hours worked. The most conservative approach an employer can adopt is to pay per actual time punches and not round at all, but time rounding can be legally compliant under certain conditions.

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Earlier this year, the California Supreme Court set forth a new “ABC” test for determining whether someone working for a business is an employee or an independent contractor. In Dynamex, the court held that the ABC test applies in claims brought by workers under Industrial Welfare Commission Wage Orders but did not decide whether the test would apply to non-wage order claims. The wage orders regulate the minimum working conditions for employees in various industries (with different wage orders applying to different industries). In making its decision, the Dynamex court rejected the multi-factor standard that the California Supreme Court had previously adopted in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, but it remained unclear whether the Borello test could still apply to cases involving non-wage order claims.

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By now employers know that rest breaks must be paid and if an employee is paid on a piece-rate basis, the rest break must be compensated at the higher of minimum wage, or their average hourly rate for the workweek. In Certified Tire and Service Centers Wage and Hour Cases, Plaintiffs sued their employer, Certified Tire, claiming that their pay plan was an “activity-based” pay system and did not separately compensate them for non-productive time and rest periods because it allowed them to earn a higher hourly rate based on production. They argued that because they could not increase their hourly rate while working on certain activities or taking rest breaks, this time was unpaid. The employees claimed Certified Tire had wrongly averaged their earnings to contend they were being paid minimum wage for all hours worked, such as in Armenta v. Osmose, Inc.

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As we previously reported, back in 2016, OSHA issued a rule that amended its regulations (29 C.F.R. § 1904.35(b)(1)(iv)) to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. The subsequent interpretive guidance on this regulation discouraged employers from implementing certain aspects of workplace safety incentive programs and post-incident drug testing. On October 11, 2018, OSHA issued a new memorandum to clarify its position on these issues and to supersede prior guidance and interpretations that it issued.

Automotive repair act overhaul

Using modern technology to communicate with your repair customers

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New rules, effective September 13, 2018, have modernized how your service department can provide and receive approval for repair estimates and additional work requests. The new rules also allow you to provide updates on and store work order and authorization information electronically.

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