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Thu Dec. 27th, 2018 News and Media



Requiring job applicant to obtain and provide MRI examination as condition of employment violated ADA by discriminating on basis of perceived disability. EEOC v. BNSF Ry. Co., 902 F.3d 916 (9th Cir. 2018).
Imposing standard disciplinary actions on employee does not constitute discharge unless they involve continuous patterns of mistreatment or usually aggravated working conditions. Simers v. Los Angeles Times Commc’ns, LLC, 18 Cal.App.5th 1248 (2018).


Evidence of numerous incidents of objectively and subjectively offensive conduct directed at and personally witnessed by target of conduct was sufficient to support jury’s finding that harassment was severe and pervasive. Caldera v. Dep’t of Corrs. & Rehab., 25 Cal.App.5th 31 (2018).


Employer’s arbitration agreement was unenforceable as against public policy where provisions waiving employee’s right to bring action under PAGA conflicted between English and Spanish versions of agreement. Juarez v. Wash Depot Holdings, Inc., 24 Cal.App.5th 1197 (2018).

Wage and Hour

New Test for Independent Contractor: Dynamex Operations W., Inc., v. Superior Ct., 4 Cal.5th 903 (2018)
A worker is properly considered an independent contractor to whom a California wage order does not apply only if the hiring entity established that:

  • (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in in fact; and
  • (B) the worker performs work that is outside the usual course of the hiring entity’s business; and
  • (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Dynamex Does Not Apply to Joint Employment

Employees of entities who leased and operated gas stations owned by oil company were not employees of oil company because it did not exercise control, resulting in no employer-employee relationship. Dynamex does not apply to alleged joint employment relationships. Curry v. Equilon Enters., LLC, 23 Cal.App.5th 289 (2018).

Borello Test Applies to Non-Wage-Order Claims

Defendants must satisfy Dynamex ABC test to establish independent contract status as defense to wage order claims, but Borello multifactor test applies to non-wage-order claims. Garcia v. Border Transp. Group, LLC, 28 Cal.App.5th 558 (2018).

Flat Sum Bonus Payments

California formula for incorporating hourly value of flat sum bonus, when calculating employee’s regular rate of pay during pay period in which both hourly compensation and flat sum bonus are earned, divides flat sum bonus by total number of non-overtime hours worked. Alvarado v. DART Contain Corp. of Cal., 4 Cal.5th 542 (2018).

De Minimum Doctrine

Employer that requires employees to work minutes off-the-clock on regular basis or as regular feature of job may not evade obligation to compensate that time by invoking de minimum doctrine. Troester v. Starbucks Corp., 5 Cal.5th 829 (2018).

Rounding System

Timekeeping system that rounds time does not violate California wage laws so long as system does not systematically undercount employee time worked. AHMC Healthcare, Inc. v. Super. Ct., 24 Cal.App.5th 1014 (2018).

No Policing of Meal Breaks

California employers, including staffing agencies that provide temporary employees to their clients, are not required to police staff to ensure compliance with meal period obligations or investigate time records to uncover possible violations. Serrano v. Aerotek, Inc., 21 Cal.App.5th 773 (2018).