As we reported here late last year, the National Labor Relations Board (“NLRB” or “Board”) overruled the much-derided 2015 decision in Browning-Ferris Industries of California (“Browning-Ferris”) that allowed for a finding of joint employment based upon a showing of “indirect control” or the ability to exert such control. Instead, in the Hy-Brand decision, the NLRB returned to the principles governing joint-employer status that existed prior to Browning-Ferris which requires a showing of “direct and immediate control” of the terms and conditions of employment in order to find joint employment.

As you are likely aware, the Tax Cuts and Jobs Act (“the Act”) was signed by President Trump on December 22, 2017. The Act includes significant changes to our country’s tax law, and many employers may be wondering how the Act affects them. In early January, the Internal Revenue Service (“IRS”) released income tax withholding information for 2018 which shows the new tax rates for employers to use. The 2018 withholding tables are available here. The withholding tables show both payroll service providers and employers how much tax to withhold from employees’ paychecks, considering a variety of factors. The IRS has instructed employers to begin using the 2018 withholding table as soon as possible but no later than February 15, 2018.

This week, after a seven-day trial, a jury found in favor of Plaintiff Salma Aghmane, a former Bank of America (BOA) client manager working in San Francisco who sued BOA in part for listing her with a fraud reporting agency after it unlawfully terminated her employment. In the federal lawsuit, in addition to wrongful termination claims, Aghmane asserted that BOA defamed her and blacklisted her from the banking industry by reporting her to “Early Warning Services, LLC” (“EWS”) for fraud. BOA said it reported her because she transferred more than $12,000.00 out of her cousin’s account, but Aghmane explained that she had authority to withdraw the funds, and that instead of trying to verify her side of the story, BOA instead “ambushed her” with a fraud investigation, fired her, and reported her to EWS. Aghmane says that because she was reported to EWS, she was blacklisted from obtaining another job, effectively ending her finance career. As proof, Aghmane presented evidence that another bank who initially offered her a position ultimately revoked her job offer when it discovered the EWS report.

Last Friday, a California federal court certified three classes of janitors who allege that facility management company ABM Industries, Inc. (“ABM”) forced them to use their personal cell phones for work-related purposes. The lawsuit alleges that ABM requires janitors to use their personal cell phones to punch in and out of ABM’s timekeeping system via the Company’s app, communicate with supervisors, and report unusual and suspicious incidents. The class period begins on January 1, 2012, and covers more than 30,000 workers.

Winter's Not Over—ICE Out In Full Force

The Feds are making good on their promise to increase their workplace enforcement activity, as ICE served Notices of Inspection (NOI) on 77 California businesses this week in San Francisco, San Jose, and Sacramento. This follows last month’s coordinated targeting of 7-Eleven stores nationwide.  The businesses served with NOIs will have 72 hours to produce I-9s and work authorization documents.  ICE is looking to uncover evidence of employers unlawfully employing workers without proper work authorization. While this enforcement wave is focused on major Northern California cities, we have received reports of ICE raids and audits in the Central Valley as well. You can read more about what to do if ICE shows up at your company’s door here.

Happy Friday, everyone! To complete our week of Hot Topics, we are sending out our Hot Topics handout, typically reserved for in-person presentations, as a one-stop shop for all things we see trending in labor and employment law in California in 2018. To download the handout, click here.

We hope you find this useful! We look forward to watching your businesses thrive through the rest of the year and are here to assist you whenever you need our expertise.

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