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California Adopts Stricter Test for Independent Contractors

April 1, 2019

On April 30, 2018, the California Supreme Court, in the c a s e Dynamex Operations West, Inc. v. Superior Court, adopted a new, stricter test for determining whether workers are employees or independent contractors under California wage orders. Under the new standard (the “ABC test”), workers are presumed to be employees unless the employer demonstrates each of the following factors:

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AVOIDING LIBEL & SLANDER IN THE WORKPLACE

April 1, 2019

A California employer who terminates an employee may face, among other things, a lawsuit from the terminated employee in the form of an action for libel or slander, or for violation of the California Labor Code. Libel and Slander. In the employment context, “libel” is a false and unprivileged writing which has a tendency to injure the person in his occupation; and “slander” is a false and unprivileged oral statement which imputes a general disqualification of the person’s capacity in his office, profession, trade or business.

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LIE DETECTOR TESTING OF EMPLOYEES

April 1, 2019

The right of an employer to conduct lie detector tests is controlled by the federal Employee Polygraph Protection Act of 1988 (“EPPA”) and by the California Labor Code. Since the EPPA generally imposes greater obligations on employers seeking to engage in polygraph testing than the California Labor Code, this Newsletter shall focus exclusively on the EPPA rules. The EPPA makes it unlawful for an employer to require, request, or suggest that any job applicant or employee submit to a lie detector test. However, security guards, employees with direct access to controlled substances, and employees of federal, state, and local governments, are exempt from the EPPA, and are subject to pre-employment polygraph testing. An employer may not discharge, discipline, discriminate against, or deny employment opportunities to, or threaten any job applicant or employee who refuses to take a lie detector test.

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THE U.S. FAMILY MEDICAL LEAVE ACT AND THE CALIFORNIA FAMILY RIGHTS ACT

April 1, 2019

The U.S. Family and Medical Leave Act of 1993 (“FMLA”) and the California Family Rights Act (“CFRA”) provide rules governing the rights of employees to take time off from work for family medical reasons. This Newsletter shall briefly discuss the employees’ rights under these laws. Covered Employers. Both FMLA and CFRA apply only to private employers with 50 or more employees and public agencies regardless of the number of employees.

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CALIFORNIA WORKPLACE VIOLENCE SAFETY ACT

April 1, 2019

California has enacted the Workplace Violence Safety Act (the “Act”) permitting an employer, whose employee has suffered unlawful violence or a credible threat of violence from any person, which can reasonably be construed to be carried out at the workplace, to obtain a temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence. Prior to this law, employers could not obtain a temporary restraining order or an injunction on behalf of an employee, and the employee was frequently reluctant to have his or her name attached to a restraining order.

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