MONDAY MORNING MINUTE: September 23, 2019

Monday Morning Minute

In This Issue

California Codifies IC Decision- What This Means for Employers

Non Competes: The Times are a Changin'

Religious Convictions: A Tale of Two, Uh Decisions

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September 23, 2019

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CALIFORNIA'S INDEPENDENT CONTRACTOR BILL SIGNED INTO LAW

On September 18, 2019 California Governor Gavin Newsom signed into law the California Supreme Court's decision in Dynamex v. Superior Court regarding the test to determine whether an employee is an independent contractor .

Assembly Bill 5 will take effect on January 1, 2020 and codifies the "ABC" test set forth in Dynamex. Under this test, a worker is presumptively an employee unless the employer can establish ALL of the following:

The worker is free from the direction and control of the company; and
The worker performs work that is outside of the company's main business; and
The worker is normally performing work in an independent business or trade that is similar to the work he or she is performing for the company.

While this has been the law of California for almost 18 months under the Court's holding, the codified version now expands the reach to non wage order claims and also comes with harsher penalties. Employers who have independent contractors in California should be looking to determine if they are properly classified as such under this new codified test to avoid the new consequences and enforcement mechanisms.

NON COMPET ES: THE TIMES ARE A CHANGIN'

Non compete

agreements should be revisited at least annually to determine if there are any changes that may affect the validity of an employer's current document used in this arena. As most employers know, non competes are primarily a creature of state law.

Maine, Maryland, New Hampshire, Oregon, Rhode Island and Washington (just to name a few states) have all enacted changes this year (some of these go into effect this year and some provisions in 2020).

For example, effective January 1, 2020 non compete agreements in Washington will be unenforceable for employees in Washington earning less than $1000,000 in total annualized compensation or independent contractors earning less than $250,000 per year; non competes greater than 18 months (restrictive period) are presumptively unenforceable; and the terms must be disclosed to prospective employees no later than the time the employee accepts an offer of employment.

Now is a good time to have your non compete reviewed for any changes in the law governing it.

RELIGIOUS CONVICTIONS AND LGBT DISCRIMINATION: A TALE OF TWO DIFFERENT OUTCOMES THIS PAST WEEK

In California last week, the Court of Appeals issued a decision that a Catholic hospital could face legal liability for failing to perform a hysterectomy as part of a female to male transition, even though the hospital's policy bans this type of surgery generally (regardless if a person is a transgender patient).

As part of its resolution, the hospital worked with the doctor to obtain privileges at another facility and the plaintiff in the matter obtained the surgery three days later. The California Court of Appeals held that because of the three day delay for the surgery, the hospital had discriminated against the plaintiff and failed to provide "full and equal medical care."

To read this decision, CLICK HERE

Which brings us to Arizona. T he Arizona Supreme Court issued a ruling in Brush & Nib LLC v. City of Phoenix in favor of a small business concerning whether to allow a calligraphy and stationery studio an exemption from the City of Phoenix's ordinance protecting LGBTQ people from discrimination in housing, employment, and public accommodations.

The court ruled, in 4-3 decision that the city of Phoenix cannot force the owners into creating custom wedding invitations for a same sex wedding when it violates their deeply held religious beliefs. The business argued that there is a difference between allowing anyone in their store to purchase a product (which they do) and hiring them to specifically create a custom wedding invitation, using their time and talent, to procure a message which violates their religious beliefs. And the court agreed, granting this small business an exemption to the local ordiance.

To read this decision, CLICK HERE

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business. Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs.

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.

For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at [email protected]