Barrister Boyajian's Blog

In a recent case, Townley v. BJ’s Restaurants, Inc., the California Court of Appeal held that the employer did not have to reimburse its employees for requiring them to buy and wear slip-resistant shoes.  To avoid slip-and-fall accidents, BJ’s adopted a safety policy that required employees to wear black, slip-resistant, closed-toed shoes.  The policy did not require employees to purchase a specific brand, style, or design of shoe.  The policy also did not prohibit employees from wearing their shoes outside of work. Because the employees were not reimbursed for the cost of purchasing these shoes, a class action lawsuit was filed in 2014, seeking reimbursement for such costs under California Labor Code section 2802. California Labor Code section 2802(a) provides that “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to

Summer is upon us.  As the temperatures rise, it is important to remember that employees must be protected from heat illness. Employers must protect their outdoor workers from heat illness and to encourage their workers to take preventative cool-down breaks in the shade and encouraging workers to drink water frequently.  This involves employers closely monitoring their workers for signs of heat illness. California's heat illness prevention regulation requires employers with outdoor workers to take the following four steps to prevent heat illness: (1) Plan: develop and implement an effective written heat illness prevention plan that includes emergency response procedures. (2) Training: train all employees and supervisors on heat illness prevention. (3) Water: provide drinking water that is fresh, pure, suitably cool and free of charge so that each worker can drink at least 1 quart per hour, and encourage workers to do so. (4) Shade: provide shade when workers request it

The Labor Commissioner's Office recently found Cheesecake Factory Restaurants, Inc. liable in a $4.57 million wage theft case that underpaid 559 janitorial workers managed by Magic Touch Commercial Cleaning.  Americlean Janitorial Services Corp., the Cheesecake Factory's janitorial contractor that subcontracted the work to Magic Touch is also liable.  The wage theft occurred at eight locations in Ornage and San Diego counties. “This case illustrates common wage theft practices in the janitorial industry, where businesses have contracted and subcontracted to avoid responsibility for ensuring workers are paid what they are owed,” said Labor Commissioner Julie A. Su. “Client businesses can no longer shield themselves from liability for wage theft through multiple layers of contracts. Our enforcement benefits not only the workers who deserve to be paid, but also legitimate janitorial businesses that are underbid by wage thieves.” Investigators found that the janitorial worke

Should employers be allowed to insist that disputes be handled in one-on-one arbitration, or should employees always be permitted to bring their claims in class or collective actions?  This issue was raised in the case titled Epic Systems Corp. v. Lewis (together with other cases which raised the same issue: Ernst & Young LLP et al. v. Morris et al., and National Labor Relations Board v. Murphy Oil USA, Inc. et al.). The workers' argument was that such arbitration agreements violate employees' rights to act in concert and violates the NLRA  (National Labor Relations Act).  The Supreme Court ruled 5 to 4 today that companies may require workers to accept individual arbitration for wage and other workplace disputes rather than banding together in collective actions.  US Supreme Court Justice Gorsuch wrote that as a matter of policy these questions are surely debatable, but as a matter of law, the Federal Arbitration Act requires courts to enforce arbitration agreements a

Can 100 hugs from your supervisor over the course of 12 years amount to sexual harassment?  AN OVERVIEW OF SEXUAL HARASSMENT Sexual harassment can be verbal, physical or visual.   There are two types. (1) Quid pro quo, AKA, tit for tat, where decisions are conditioned on sexual favors. (2) Hostile Environment, where an offensive work environment is created by conduct such as staring at someone, making sexual comments and jokes, or physically touching or blocking a person in an intimidating manner.   A hostile work environment must be sufficiently extreme to change the terms and conditions of employment.  All verbal or physical harassment in the workplace is not actionable.  It must be severe or pervasive.  To be deemed pervasive, the incidents of misconduct must be sufficiently continuous and concerted.  A single incident may in some instances support a hostile environment claim depending upon its severity.  The required showing of severity of the harassing conduct varies i

On April 30, 2018, the California Supreme Court published a ground-breaking decision in the case of Dynamex Operations West v. Superior Court, Cal. Supreme Ct. no. S222732 , 2018 WL 1999120.  The 85-page opinion is about when a worker may be classified as an independent contractor, as opposed to an employee, under California's Wage Order.   Wage Order 9 was at issue in this case.    Dynamex is a nationwide courier whose drivers were once classified as employees by the company, but were later reclassified as independent contractors in 2004. Such reclassification is often executed by companies in order to generate economic savings at the expense of its employees. For example, in Dynamex , the drivers were required to provide their own vehicles and pay all transportation expenses, maintenance, insurance, taxes, etc. The gist of the decision is this:  If the employer cannot satisfy the ABC test, then the worker is an employee under the "suffer or permit to work" definit