©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 17 Registered securities broker-dealers and investment advisers may not rely on the ABC test to prove misclassification. The statutory exemption for securities dealers and investment advisers under AB5 is constitutional. Therefore, these professionals must establish claims of misclassification through the more burdensome Borello test rather than under the ABC test (Court of Appeal). (See § 19.7.) Statutory provisions prohibiting staff of long-term care facilities from referring to residents by other than resident’s self-identified name or pronoun are subject to strict scrutiny. Name and pronoun provisions legislation was not narrowly tailored to achieve government's compelling interest in eliminating discrimination on basis of sex, and therefore was subject to strict scrutiny (Court of Appeal). (See § 20.8.) Issues Pending Review in 2024 Before the California Supreme Court This volume reports on California Supreme Court decisions through about June 2024. We expect the Supreme Court to issue several further decisions affecting private employment during 2024: Can a coworker’s use of a single racial epithet create a hostile work environment? In Bailey v. San Francisco District Attorney’s Office, No. A153520 (nonpublished opinion) (2020), review granted, No. S265223 (Cal. Oct. 26, 2020), the Supreme Court agreed to decide: “Can a plaintiff’s coworker’s use of a single egregious racial epithet support a discrimination claim based on a hostile work environment?” (Case argued and submitted on May 22, 2024.) (See § 6.1.) Are elected officials employees under Labor Code § 1102.5(b)? In Brown v. City of Inglewood, 92 Cal. App. 5th 1256 (2023), review granted, No. S280773 (Cal. Sep. 27, 2023), the Supreme Court agreed to decide: “Are elected officials employees for purposes of whistleblower protection under Labor Code section 1102.5, subdivision (b)?” (Fully briefed Feb. 13, 2024.) Should the calculation of enhanced workers’ compensation benefits be based on temporary disability payments? In California Department of Corrections and Rehabilitation v. Workers’ Comp. Appeals Bd., 94 Cal. App. 5th 464 (2023), review granted, No. S282013 (Cal. Dec. 13, 2023), the Supreme Court agreed to decide: “Should the calculation of enhanced workers’ compensation benefits for an employer’s serious and willful misconduct under Labor Code section 4553 be based on temporary disability payments available under the Labor Code?” (Fully briefed Mar.14, 2024.) Can employers use neutral time-rounding for payroll purposes? In Camp v. Home Depot U.S.A., Inc., 84 Cal. App. 5th 638 (2022), review granted, No. S277518 (Cal. Feb. 1, 2023), the Supreme Court agreed to decide: “Under California law, are employers permitted to use neutral time-rounding practices to calculate employees’ work time for payroll purposes?” (Fully briefed Sep. 25, 2023.) (See § 7.4.4.) Was the employer’s mandatory arbitration agreement unenforceable as unconscionable? In Fuentes v. Empire Nissan, Inc., 90 Cal. App. 5th 919 (2023), review granted, No. S280256 (Cal. Aug. 9, 2023), the Supreme Court agreed to decide: “Is the form arbitration agreement that the employer here required prospective employees to sign as a condition of employment unenforceable against an employee due to unconscionability?” (Fully briefed Mar. 26, 2024.) When may an employer invoke a good faith defense to avoid liquidated damages for alleged minimum wage violations, and is there a private right of action to enforce administrative penalties under the Healthy Workplaces, Healthy Families Act? In Iloff v. LaPaille, 80 Cal. App. 5th 427 (2022), review granted, No. S275848 (Cal. Oct. 26, 2022), the Supreme Court agreed to decide: “(1) Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? (2) May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” (Fully briefed May 4, 2023.) (See § 7.20.)
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