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

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The issue of whether a worker is an “employee” or an “independent contractor” has vexed employers and workers for decades. The impact for misclassifying an employee as an independent contractor can have severe (and costly) consequences for employers. Employers and their lawyers look to the courts, legislatures and government agencies for guidance, and for standards employers should follow when making the determination of whether a worker is an employee or an independent contractor. But, depending on the political environment, the standards set by the courts and government agencies are in constant flux, changing from administration to administration. The most recent example of this flipflop in standards comes from the National Labor Relations Board (“NLRB” or “Board”) which issued a new decision on June 13, 2023 that once again set the new standard or, more accurately, reverted to the standard implemented by the prior Board appointed by President Obama.

CA Supreme Court circumvents SCOTUS

Requires employers to litigate PAGA claims

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In its highly-anticipated opinion in the case of Adolph v. Uber Technologies, the California Supreme Court held on July 17, 2023 that a plaintiff-employee who files a PAGA action against his/her employee for violations of the Labor Code retains standing to pursue the “non-individual PAGA” claims in civil court even if the employee’s “individual PAGA” claim is subject to arbitration.

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On July 11, 2023, in unanimous court opinion, a three judge San Francisco appellate court panel overturned a trial court ruling in favor of International Business Machines Corporation (IBM), holding that employers are required under California law to reimburse employees for work from home expenses regardless of whether such work from home was the result of government actions to combat the COVID-19 pandemic.

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You know it's coming. That significant factual decision by the trial court that counsel has warned you won’t go your way. While you’ve geared up mentally for the losing ruling, and know the appeal is coming, the first step counsel will take is to prepare to secure a Statement of Decision.

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Background music is often a ubiquitous element of a workplace environment, especially in the retail space, where businesses seek to create a positive mood for customers and employees. However, as illustrated recently in the case Sharp v. S&S Activewear, L.L.C., No. 21-17138, 2023 WL 3857491, (9th Cir. June 7, 2023), the 9th Circuit Court of Appeals ruled that music with explicit lyrics can create a sexually harassing hostile work environment, even though men and women were equally exposed.

Check your email and IT policies!

Court of Appeal indicates employee may have privacy interest in employer’s email system absent express policy stating otherwise

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In Militello v. VFARM 1509 (2023) 89 Cal. App. 5th 602, the plaintiff sued her fellow co-directors of a cannabis company. In that case, the plaintiff’s attorney attempted to use as evidence private emails between one of the defendants and the defendant’s spouse that had been sent through the company’s email system. The defendant challenged this and moved to disqualify the attorney on the ground that the emails were improperly introduced as they were protected by the spousal communications privilege.

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For almost three years, California employers operated under the COVID-19 Prevention Emergency Temporary Standards that were implemented by Cal/OSHA early in the pandemic, and revised as the pandemic situation evolved. Now, with the decline of the COVID-19 emergency situation, Cal/OSHA has implemented new permanent COVID-19 standards that took effect on February 3, 2023. So what employer obligations remain?

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