Written by Frank Lopez
The first month of 2021 is over, and with the new month comes new decisions and guidance that business owners should be aware.
The first is a development to a case that was decided in 2018: the Dynamex case.
The California Supreme Court ruled earlier this month that “ABC” test for determining whether a worker is an independent contractor or an employee applies retroactively.
In 2018, California’s high court ruled in its April 2018 decision the Dynamex Operations West, Inc. V. Superior Court that the “ABC” test would be used to determine for purposes of the California Wage Orders whether a worker is an employee or an independent contractor.
Under the ABC test a worker a worker is considered an employee unless the employer can satisfy all three parts of the conditions:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
- The worker performs work that is outside the usual course of the employer’s business.
- The worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.
On Jan. 14 the California Supreme Court held in Vazquez v. Jan-Pro Franchising International, Inc. that the Dynamex decision is retroactive because the decision did not change any “settled rule” whether the test applied to the Wage Orders and doing so is not “improper or unfair” to employers.
In a CalChamber article from Jan. 29, the organization states that this latest ruling could open California business up to millions of dollars of liability.
The ruling means that any misclassification cases being faced by employers prior to 2018 could be considered through the ABC test.
Another development is that the U.S. Department of Labor under the Biden Administration has issued new Covid-19 workplace safety guidance.
The Occupational Safety and Health Administration (OSHA) has issued stronger worker safety guidance to help employers and workers prepare a Covid-19 protection program and better identify risks that could lead to exposure or contraction.
OSHA will be providing the recommendations to assist employers in maintaining a safe workplace.
“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”
The guidance includes recommendations for the prevention program including: conducting a hazard assessment, identifying control measures to limit the spread of the virus and ensuring that Covid-19 policies and procedures are communicated to both English and non-English speaking workers.
It also provides guidance for the use of personal protective equipment, improved ventilation, good hygiene and routine cleaning.
The new guidance is not a standard or regulation, and it does not create any new legal obligations, according to a news release.