On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation that purports to clarify on one of the most challenging legal questions facing employers today: are certain workers employees or independent contractors? Notably absent from the guidance, however, is any specific reference to workers who provide services through “on-demand” companies like Uber, Lyft, and Airbnb who use technology to deliver traditional services more efficiently by connecting consumers directly with service providers. This is surprising since it seems that the DOL’s renewed focus on misclassification has stemmed in large part from the slew of pending on-demand worker lawsuits in which the classification tests have proven very difficult to apply.
Lauri A. Damrell
Lauri Damrell, a senior associate in the Sacramento office, is a member of the employment law group.
Ms. Damrell’s practice focuses on employment litigation and counseling. Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Ms. Damrell has extensive experience in complex litigation and counseling involving wage-and-hour laws, independent contractors, exempt/non-exempt classifications, discrimination, harassment, wrongful termination and other employment regulations. She has also represented several clients before the EEOC, OFCCP, U.S. Dept. of Labor, IRS, California Dept. of Fair Employment & Housing, Division of Labor Standards Enforcement, and the Employment Development Department. Her clients have included major retailers such as CVS, Crate and Barrel, Williams Sonoma, Levi Strauss & Co., Luxottica, Sears, Ace Hardware, and Hallmark. She has also represented many other Fortune 500 companies, including Health Net, Inc., Morgan Stanley, Bank of America, and US Bank.
Ms. Damrell is a thought leader on diversity in the workforce. California Governor Jerry Brown recently appointed her to serve as a Commissioner for the California Commission on the Status of Women and Girls. She has published articles on diversity in the National Law Journal, the American Bar Association Journal on Labor and Employment Law, Corporate Counsel, Law360, Bloomberg BNA, and others. She also presents frequently on these issues and was recently invited to speak at the U.S. Capitol regarding the Paycheck Fairness Act.
Within her community, Ms. Damrell has been featured by the Sacramento Business Journal for co-founding the Mother Attorneys Mentoring Association of Sacramento (MAMAS). She is an active member of the National Association of Women Lawyers, which recently awarded her the Virginia S. Mueller Outstanding Member award for her contributions to the organization. She is also an active member of the American Bar Association Committee on Equal Employment Opportunity Law and serves as the Chapter Update Co-Chair for the Compensation chapter of its Employment Discrimination Law treatise. She has also served on the Executive Committee of Operation Protect and Defend, an organization of judges and attorneys supported by the Sacramento Bar Association to bring civic education to local high schools.
Within Orrick, Ms. Damrell serves as Deputy Chair to the firm's Women's Initiative and on the planning committee for the firm's Women in Employment Law Network, which is aimed at connecting women employment lawyers and HR professionals from the nation's most successful companies, educational institutions and law firms. She also recently ran for Orrick's team in the Golden Gate Relay, a 191 mile relay run from Calistoga to Santa Cruz, California, to raise funds for OrgansRUs.
On Monday, July 13, 2015, California Governor Jerry Brown signed a much anticipated “fix it” bill that amends the Healthy Workplaces, Healthy Families Act of 2014, clarifying the requirements of California’s sick leave law.
The fixes bring welcome clarity and revisions to key provisions that, for most employers, will make the law easier to administer. Yes, it’s two weeks late—the intent was for the bill to pass before the July 1 deadline for employers to implement the bulk of the original law’s requirements. But the delay was due in large part to several revisions that the legislature made in hopes of getting it right this time. And thanks to an urgency provision, the amendments go into effect immediately. The full text of the amendment (AB 304) is available here, but we’ve highlighted a few key provisions below. You should also visit our prior blogs on this subject here to make sure you’re keeping up with the feverish pace of things.
Emeryville will join San Francisco, Oakland and other cities across the nation that have enacted paid sick leave ordinances. On June 2, 2015, the city of Emeryville adopted its Minimum Wage and Paid Sick Leave Ordinance which goes into effect on July 1, 2015 (with enforcement starting July 2). Yes, you read that right: it goes into effect only a month after it was adopted! Read More
The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.” As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.
The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court. Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit. Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation. In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.
On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule addressing how the Americans with Disabilities Act (ADA) applies to wellness programs that are part of group health plans and that include medical examinations or questions about employees’ health. Although not final and still open for public comment, this proposed rule provides important guidelines for employers in administering wellness programs.
Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California. Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.
The new California paid sick leave law is now “in effect” (as we reported here and here) and you are ramping up your HR and payroll team to get ready for July 1 when employees can start accruing sick leave under the law. But now that you’re digging into the details, you’re realizing that this isn’t as easy as you thought. Don’t worry, you’re not alone. There are a few subtleties to the sick leave law that are catching more than a few employers off guard. But fear not, here are some tips to help you implement your sick leave plan:
On December 5, 2014, San Francisco enacted two ordinances, dubbed the “San Francisco Retail Workers’ Bill of Rights,” that will extend benefits to part-time retail and food service employees and require certain employers to make schedules more predictable for all employees. The ordinances are believed to affect approximately 35,000 employees in San Francisco (approximately 5 to 6% of the City’s total wage and salary employment) and are also believed to provide the broadest protections in the country in terms of rights for part-time workers and scheduling requirements.
California employers are facing a healthy dose of new requirements next month as the notice and posting provisions in the state’s recently enacted paid sick leave law take effect. To help employers comply before ringing in the New Year, the California Labor Commissioner has published a revised Wage Theft Notice and a new workplace poster.