California Employment Laws

Medical marijuana laws present unique challenges to employers.

Almost all states will soon have similar laws as to medical marijuana usage, and generally no employee can be fired just for having medical authorization to use marijuana.

The Americans with Disabilities Act even prevents employers from asking about it because that would presume the employer is asking about an underlying disability.

While it’s still illegal under federal law to possess or use it, there have been more than 60 peer-reviewed studies with an overwhelming majority finding marijuana helpful as palliative care in debilitating diseases or for those with chronic pain.

What is an employer to do? Re-write your employee handbook; be vigilant and drug test under the defense of reasonable suspicion.

Current Arizona law is typical of many states’ view: unless a failure to test would cause an employer to lose a monetary or licensing-related benefit under law, an employer may not discriminate against a person in hiring, terminating, imposing a condition of employment, or otherwise penalizing a person for having medical marijuana privileges, or producing a positive test for marijuana.

Safety-sensitive work in the transportation industry – or any industry – allows the employer to discipline / terminate employees with medical marijuana prescriptions if intoxicated on duty.

Regardless of the industry, no employee with a medical marijuana card may use, possess, or be impaired at work.

Why should you be concerned / have a policy / conduct reasonable suspicion testing?

Because of exposure to the legal risk of negligent hiring or negligent retention claims brought by third persons; and because your medical card employee could challenge you for discrimination if you do not treat every employee the same.

The Gig Economy Just Got Giggier

On June 7, 2017, Labor Secretary Alexander Acosta announced that the U.S. Department of Labor has withdrawn two informal guidance documents on independent contractor misclassification and joint employment, which had been issued by President Obama.

These involved the “economic realities” test used for contractors; and an expansive interpretation for joint employment under the Fair Labor Standards Act.

Presumably, the absence of these guidance documents, along with various test factors delineated by the DOL, courts likely will revert to prior interpretations of independent contractor classification and joint employment as had been determined by courts in each jurisdiction.

The Causes and Occurrences of Fatal Road Accidents by State

The Auto Insurance Center presented its second look at fatalities in all states and broke out some interesting statistics. It’s worth a few minutes to scroll through their findings.

Click this link:

www.autoinsurancecenter.com/fatal-crash-causes.htm

 

Drones in Accident Reconstruction

Drone technology brings a significant advantage over current crash data collection methods in litigated matters.

The falling costs of drones and associated software, combined with reduced expert costs, time saved, access to traffic areas, and the superb visualization of the collected data make drones desirable and useful for accident reconstruction.

Post- crash investigations have always been a challenge for the transportation and insurance industries, particularly crashes occurring in, or because of, temporary traffic routing that can change daily. Some traffic plans fail to meet MUTCD standards and that failure could contribute to the cause of a crash.

A recent experiment with drone technology in relation to crash reconstruction proved to be a positive experience. A drone was used to collect images of the scene; and a 3D model was built with software. The technology produced amazingly clear and accurate scene details. It was also less time consuming and less expensive than traditional reconstruction methods. An exemplar reenactment proved to be of great value. It’s not for every case, but it should be considered.

Freight Recession Over?

DAT Solutions reported that last week the overall load to truck ratio was the highest it’s been since March 2014. Last week was also the second week in a row when rates rose on more than 70 of the top 100 dry van lanes. DAT suggests that the ratio and rates offer strong evidence that the freight recession is over and that spot rates may likely continue to rise, with the June California produce shipments making for a good start to Summer.

Jim Mahoney serves transport clients in all states and he has joined with Resnick & Louis PC, which has offices in: NM, CA, TX, CO, NV, FL, AZ, UT, UK, where he is Chair of Transportation cases.

JMahoney@rlattorneys.com serving the transportation industry – 602-900-1800

Who’s Exempt From Overtime – the Motor Carrier Exemption

The Fair Labor Standards Act (FLSA) provides that employers must pay non-exempt employees at “one and one-half times the regular rate” for time worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). The FLSA exempts “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” under the Motor Carrier Act (MCA). 29 U.S.C. § 213(b)(1) (“the MCA Exemption”). Mr. Williams brought this action alleging that Central Transport LLC violated the FLSA’s overtime requirements when it employed him as a “switcher” at its St. Louis terminal. He tried to make the claim into a class action suit.

The question of how Williams spent his time working for Central Transport is a question of fact; the ultimate issue of whether his work activities exempted Central Transport from paying FLSA overtime is one of law.

In United States v. American Trucking Ass’ns, 310 U.S. 534, 553 (1940), the Supreme Court rejected the contention of that all employees of interstate motor carriers were exempt, concluding that the jurisdiction to regulate maximum hours “is limited to those employees whose activities affect the safety of [motor carrier] operation.” Later, the rule was expanded that motor carrier drivers, mechanics, loaders, and drivers helpers who “perform duties which affect the safety of operation… are therefore subject to the authority conferred [by the MCA] to prescribe qualifications and maximum hours of service.” MC-2, 28 M.C.C. 125, 126 (1941).

Mr. Williams was a “city loader” by title with Central Transport. However, he also did some minimal loading of trailers that affected the motor carrier’s safe interstate operation, including balancing loads and stacking cargo “high and tight.” The 8th Circuit Court of Appeals in a decision published July 28 2016 seems to have expanded a ruling from 1947 that even randomly assigned drivers, loaders, mechanics whose operations are quite minimally in interstate commerce (“3 or 4%”) are under the MCA exemption for overtime.

FMCSA Delays Unified Registration System

The Federal Motor Carrier Safety Administration has delayed the final implementation of its Unified Registration System until Jan. 14, 2017.

Dr. Kelly Regal, FMCSA associate administrator of research and information technology, said the agency is updating its IT systems and migrating existing data to new servers, which is causing the delay from the previous implementation date of Sept. 30.

Since December, new applicants for registration have been required to use the new streamlined online form. Existing carriers were supposed to begin using the system to do their biannual updates, name changes and transfers of authority on Sept. 30, but now won’t be able to use the system until the January 2017 implementation.

California Workers’ Comp – What Ails You?

In California, where reforms were implemented in 2013, medical trends are seen as stabilizing with fewer spine surgeries and a reduction in the use of opioids. According to the State this shows that many elements of the reform effort are working. Hmmm…not so sure. When compared with other states California has the highest rate and frequency of permanent and partial disability claims and has the highest Workers’ Comp premium rates in the country. Nothing to brag about there.

I used to think that injured workers got high quality care in the Comp system. I don’t know why I thought that. Maybe because some care was better than crawling home to a bandaid. However, the focus on quality of care  – with as much oversight as we see in the health care industry – could be a way to improve patient outcomes and limit rising premiums. But insurers often see Work Comp and its mandatory coverage as a loss leader in selling other, more profitable lines. It doesn’t appear that any insurer – despite their sales puffery to their customers – really look at clinical quality at all to determine provider quality and performance.

Literally, on the Work Comp side of healthcare, there are no standards. Just overburdened claims adjusters.

Tough to Make a Buck in Trucking 

Truckload linehaul rates in June were nearly the same as the month before, but they are still below levels from a year ago, while there seems to be no end to the recent drop in rates for intermodal shipments. I expect to see a big dropoff in capacity in fresh produce reefer business as the Food Safety regs come along. Current spot reefer rates of $2.00 a mile will go up no doubt, but it’s still not going to be an easy line to make a buck.

 

This is not a fake story…

In its never-ending efforts at driving its employers to distraction, the California Supreme Court, in a case entitled, Kilby v CVS Pharmacy, clarified for the 9th Circuit the nature of employee seating that had previously been made a requirement in some California wage orders.

California law,  Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A), states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  This strongly suggests that employees are entitled to a seat when their tasks can be accomplished while so seated.

There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

According to the California Supreme Court, whether an employee is entitled to a seat depends on an objective assessment of all relevant factors – the totality of the circumstances. But the analysis should begin with the examination by you, the employer, of whether tasks at a particular location may be performed while seated.

Heck, what else do you have to do anyway to run your business?

The requirement applies to individual tasks performed throughout the workday, rather than the entire range of duties performed during a complete shift or contained within a job description. I’d suggest you follow each of your employees for a typical work day and ask (constantly), “Can I get you a comfortable chair?”

Failure to comply with the seating requirement exposes employers to potential class action litigation (seriously), in which the employers will bear the burden to prove the unsuitability of seating (you may want to bring a video camera with you for later use in evidence as you follow your employees around). Oh, but don’t forget the privacy issues you may be raising, so ask permission to film their day.

The lack of funding provided to California’s Department of Labor gave purpose to the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which “authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees.”  (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360).

I don’t know if you pay attention to TV broadcasts of war correspondents reporting from conflict zones, but there’s obvious ubiquity of the very familiar molded plastic chairs we all know and love.

Presumably these plastic chairs provide accommodative seating arrangements that pass muster with all sorts of rebels in war torn countries, so they should be just fine in your California work settings as well. Buy a set before the price skyrockets – or before a new international conflict puts a strain on their production.