not new and was faithful to the fundamental purpose of California’s wage orders. The Dynamex holding was described as a clarification of established law. Given the presumption of retroactivity, Dynamex must be applied retroactively.

PRONG B OF THE “ABC TEST” MAY BE SUSCEPTIBLE TO SUMMARY JUDGMENT, BUT PRONGS A AND C REQUIRE HEAVY FACTUAL ANALYSIS

Dynamex clarified the “suffer or permit” standard, holding that the hiring entity suffers or permits a person to work if the hiring entity cannot overcome the ABC test. The ABC test requires the hiring entity to establish three elements to disprove that a worker is an employee: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, (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. Since the District Court had no opportunity to assess the case facts under Dynamex before granting summary judgment, the Ninth Circuit vacated the judgment and remanded the case for a fact-intensive inquiry, with guidance. The guidance instructed the District Court to consider all three prongs of the ABC test, to disregard Patterson (a franchise case with no wage and hour issues), and to consider that prong B of the ABC test is the most susceptible to summary judgment while prongs A and C required detailed factual analysis.

9^th Circuit. Filed 5/2/19. 923 F.3d 575. Opinion by Judge Block.

work to strengthen other aspects of our labor laws continues unabated. This year’s legislative calendar featured a two-week long period leading up to the “House of Origin deadline” (May 31, 2019) – the date by which all bills must pass out of their house of origin. While this extended period gave us an opportunity to lobby thoroughly for our bills, it also provided ample time for anti-worker forces to organize their well-funded opposition. In the face of this fierce resistance from the business lobby, we managed to shepherd all but one of our sponsored bills out of their first house, hitting pause on our paid family leave bill in order to better coordinate with the Paid Family Leave Task Force that was recently convened by Governor Newsom.

Looking ahead to the coming months, we will redouble our efforts to continue pushing the rest of our sponsored bills until they reach the Governor’s desk in August! Thank you to the CELA members who joined our Lobby Day team, shared crucial worker testimonials, wrote letters, shared posts about the bills on social media, called your legislators, rallied with our allies, and testified, either themselves or with clients, at the Capitol on these very important measures.

CELA Sponsored and Priority Bills

Late Paychecks: AB 673 (Carrillo) allows workers to recover penalties through the Labor Commissioner for late paychecks. Current law sets out penalties for late paychecks that can only be recovered by the Labor Commissioner on behalf of the state. AB 673 allows the worker to recover this penalty through the Labor Commissioner while also preserving the ability to enforce the penalty through PAGA. Passed the Assembly!

“No Rehire” Clauses: AB 749 (Stone) prohibits “No Rehire” provisions in settlement agreements where a worker has filed a claim against an employer. Passed the Assembly!

Retaliation and Whistleblower Protections: AB 403 (Kalra) extends the statute of limitations for retaliation claims under Labor Code Section 98.7 from 6 months to 2 years and would allow prevailing plaintiffs to recover their attorneys’ fees under Section 1102.5. This is the same bill that was held in the Assembly last year. Passed the Assembly!

Strategic Non-Payment of Arbitration Fees: SB 707 (Wieckowski, Hertzberg) provides procedural remedies for consumers and employees when companies strategically withhold payment of arbitration fees in order to stall or impede the arbitration proceedings. This bill would prevent employers from gaming the arbitration system by forcing workers into arbitration on the one hand, and selectively getting out of or stalling the arbitration by refusing to pay fees on the other. This bill also requires courts to issue sanctions against the employer for their failure to pay arbitration fees. Passed the Senate!

Codification of Dynamex: AB 5 (Gonzalez Fletcher) codifies the ABC test, as set out in Dynamex, as the standard for determining whether a worker is an employee or an independent contractor under all provisions of the Labor Code and the Unemployment Insurance Code. This bill has been the major battleground between business and labor that will determine the fate of millions of workers, including those in the “gig economy.” This bill has been amended to exempt specific professions from the ABC test (and restoring the Borello test for these professions), including insurance agents, direct sales salepersons, real estate licensees, workers providing hairstyling or barbering services, and those performing work under a contract for professional services that require an active license, like law, dentistry, architecture, engineering, or accounting. Exemptions aside, this bill retains its core function of clarifying the proper test for misclassification and presuming employment status for workers who are most vulnerable to abuse. Passed the Assembly!

Harassment and Discrimination Statute of Limitations: AB 9 (Reyes, Friedman, and Waldron) extends the filing period with the DFEH for complaints of unlawful employment practices to three years. This is the same bill that was vetoed by Governor Brown last year. Passed the Assembly!

Pay Data Transparency: SB 171 (Jackson) requires employers with 100 employees or more to submit a pay data report annually to the DFEH, outlining the compensation and hours worked of its employees by gender, race, ethnicity, and job category. This bill would adopt the federal pay data reporting requirements previous issued by the Obama administration that has since been rescinded by the Trump administration. Passed the Senate!

Forced Arbitration: AB 51 (Gonzalez Fletcher) protects employees from being forced to waive their rights under the FEHA or the Labor Code as a condition of employment. This bill is similar to a bill that was vetoed last year by Governor Brown. Passed the Assembly!

Paid Family Leave and Job-Protection: SB 135 (Jackson) allows more workers to access the Paid Family Leave Program by expanding our job-protection laws, the California Family Rights Act. This bill allows workers who work for employers of 5 or more to take up to 12 weeks of job-protected time off to bond with a newborn, care for a seriously ill family member or take time off for their own serious illness. This bill would also expand the definition of family members for the purposes of caregiving leave to include a grandparent, grandchild, sibling, parent-in-law, child-in-law, or “designated person.” Recently, Governor Newsom convened a Paid Family Leave Task Force for the purposes of designing a policy roadmap to achieve his vision of expanding family leave. With the Task Force’s recommendation set to come out at the end of this year, SB 135 can serve as the vehicle to make the legislative changes necessary to enact the Governor’s vision of expanded family leave in California, while ensuring workers’ jobs are protected during that critical time of caring or bonding with family. Held in Senate.

For a full list of bills we are tracking, click here.

As we advocate to make these bills the law of the land, we will continue to need your help in the coming weeks. Please contact us with your first-hand experiences and your clients’ stories of why these bills are necessary. Your stories and perspectives are essential for us to make a compelling case for our priorities and can help persuade our representatives to vote Aye on worker rights.

Ken Wang is CELA’s inaugural Policy Fellow. He is a former civic engagement and worker organizer at the Chinese Progressive Association in San Francisco. Ken spent many years organizing to lift up the voices of vulnerable workers in our society. Through individual case campaigns, policy advocacy, and electoral organizing, he helped strengthen workplace protections in San Francisco by passing standard-setting policies that were responsive to workers’ needs. His efforts helped to build a powerful coalition that ushered the passage of a $15 minimum wage in the City and the creation of a strong agency-community partnership to enforce local labor laws.

This fellowship opportunity is made possible through a grant from the Foundation for Advocacy, Inclusion & Resources (FAIR).