Several groups have launched legal attacks on California’s new independent contractor misclassification law AB 5 since it went into effect on January 1, 2020. While some groups had early success, United States District Court Judge Dolly Gee denied a request by Uber and Postmates to preliminarily enjoin enforcement of AB 5 against them while their constitutional challenge to the law plays out, in Olson, et al. v. State of California, et al. READ MORE
Benjamin R. Buchwalter
Ben is a vigorous and prudent litigator with a strong track record of achieving favorable judgments and settlements for his clients. With Ben as an advocate, clients and employers breathe easy knowing their business interests and risk capacity are always top of mind.
Ben has represented innovative technology, financial services, and retail employers in single-plaintiff, multi-plaintiff and class action lawsuits in California and federal court, and before state and federal agencies. He has litigated cases alleging discrimination and harassment, wrongful termination, and retaliation on behalf of multiple clients. Ben has also defended clients in class actions alleging a wide range of wage and hour claims including failure to pay overtime, to provide meal and rest breaks and to reimburse business expenses, and under the California Labor Code and the Private Attorney General Act (PAGA). Ben's practice includes advice and counseling on a variety of pre-litigation employment matters, including discrimination and harassment, leaves of absence, reasonable accommodation, wage-and-hour issues, and termination.
Notably, Ben has been a key member of the Orrick team that represented a global financial services company in a recent and highly publicized class action lawsuit. He has also been a vital member of several Orrick teams that achieved summary judgments and favorable judgments and settlements for multiple technology and financial services companies.
Ben is passionate about mentoring junior lawyers and is actively involved in many of Orrick's internal working groups, including the firm's Diversity and Inclusion committees. He understands the importance of promoting dialogue and empowering colleagues to share their opinions—a values lesson learned from his days as Editor-in-Chief of the Hastings Law Journal.
Prior to Orrick, Ben served as a law clerk for a federal judge.
Posts by: Benjamin R. Buchwalter
Starting January 1, 2020, California employees will have three times as long to file charges alleging discrimination, harassment and retaliation. The new statute of limitations arises from AB 9, which increases the statute of limitations for filing a charge under the Fair Employment and Housing Act (“FEHA”) from 1 year to 3 years. AB 9 is certain to have a significant impact on employers in the years that follow, but employers can mitigate the potential burden of this statute by understanding the new law and how to prepare for it. Below is some background and helpful tips for employers. READ MORE
As the holiday season approaches, it is a good time for employers to review their policies and take preventative measures to ensure festivities do not get out of hand at office holiday parties. The dangers of blurring the lines between professional conduct and holiday celebrations was demonstrated in a recent case out of the United States District Court for the Eastern District of California. The lawsuit alleges that following an office holiday party, a managerial employee invited several co-workers to a second location to continue celebrating. It further alleges that toward the end of the night, the manager and one of his reports ended up alone in the hotel room and the manager sexually assaulted her.
We are halfway through 2019, and while many employees prepare for summer vacation, California employers in various cities should brace themselves for an additional round of minimum wage increases on July 1, 2019.
Another raise, already?
As you may recall, on January 1, 2019, California raised the statewide minimum wage rate to $12.00 per hour for employers with 26 or more employees, and $11.00 per hour for employers with 25 or fewer employees. And the California minimum wage is set to increase to $15.00 per hour for all employers by January 2023. READ MORE
San Francisco recently added significant teeth to its “Fair Chance” ordinance, which is designed to give applicants who have criminal histories a chance to get their foot in the door without being automatically disqualified.
This is the next step in the “ban the box” movement, for which several cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background. The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions. Proponents of “ban the box” laws argue they will help remove unfair employment barriers to job applicants with criminal histories.
In California, San Francisco and Los Angeles have instituted “Fair Chance” ordinances that require employers to state on their job postings that an arrest or conviction will not automatically disqualify a qualified application from consideration from employment. Recent amendments to the San Francisco Fair Chance Ordinance went into effect on October 1, 2018. These amendments:
- Expand the scope of the law to cover any employer with 5 or more employees. Previously, the law covered employers with 20 or more employees.
- Prohibit employers from inquiring about a person’s criminal history until after a conditional offer of employment has been made.
- Prohibit employers from considering any convictions for decriminalized behavior (e.g., marijuana related convictions). Previously, the law had allowed such inquiries for convictions that were seven years old or less.
- Increase penalties for non-compliance from a per-violation maximum of $100 to $2,000.
- Direct that penalties must be paid directly to affected employees. Penalties were previously paid to the City.
- Creates a new private right of action for any employee or applicant whose rights have been violated. Previously only the City Attorney could sue to enforce the law.
- Requires that covered employers display a new poster in the workplaces as of October 1, 2018.
In addition to fair chance ordinances like San Francisco’s, California employers must also be mindful of other recent legislation that will have an impact on the hiring process, including state-wide legislation enacted in July 2018 that prohibits employers from inquiring into the salary history of their applicants. More on that here.
As always, employers are well advised to reach out to Orrick counsel for assistance navigating this complex area of law.
The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.