Legislative Update Desc

Kate

The Californian 2021 Q3 – LEGISLATIVE UPDATE

LEGISLATIVE UPDATE

Kate Wallace, CALSAGA Association Manager

As we reported to you earlier this year, Assemblymember Chris Holden introduced Assembly Bill 229 which would require the development of Use of Force curriculum for the private security industry. Among other topics the training would include active shooter situations; implicit and explicit bias and cultural competency; mental health and policies.

The CALSAGA Executive Committee along with our lobbyist Kelly Jensen have been working with Assemblymember Holden’s office, the Committee Consultant for the Senate Business, Professions and Economic Development Committee and Chief Andres of the Bureau of Security & Investigative Services on the text and ramifications of the bill. CALSAGA President David Chandler has testified before Assembly and Senate committees regarding the bill.

The current draft of the bill would remove Weapons of Mass Destruction from Powers to Arrest and replace it with Use of Force. Weapons of Mass Destruction will become an elective option.  It would require the initial guard card training to be administered in a traditional classroom setting with a physical instructor utilizing “hands-on training.” Originally the legislation would have increased the initial training requirement from 8 hours to 10 hours. CALSAGA addressed this with Assemblymember Holden and are glad to report that he is agreeable to keeping the initial training as an 8 hour course.

Proposed legislation would also increase requirements for reporting altercations. Currently all physical interactions involving a security officer must be reported to the BSIS. If passed, this legislation would require that any altercation be reported to the BSIS. This would include verbal altercations and unwanted touches such as common instances of gently touching an individual’s shoulder to guide them out of a building, officers restraining someone in a hospital setting, etc.

Last Tuesday David Chandler testified before the Senate Business, Professions and Economic Development Committee in opposition to the bill as currently written. There are portions of the legislation to which the association objects particularly the barrier to employment created by the increased training requirements and the lack of provisions for administering training in the event of a future pandemic.

During committee session this week, Assemblymember Holden stated, “I have committed to CALSAGA that I will work with them to find an appropriate balance between traditional classroom and their suggestion of web-based platform training.”

CALSAGA will continue to keep you updated regarding AB 229. Should this legislation pass, new requirements would not take effect until 2022.

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Kate

The Californian 2019 Q2 – U.S. SUPREME COURT: COURTS MAY ONLY COMPEL CLASS-WIDE ARBITRATION IF EXPRESSLY AGREED UPON IN EMPLOYMENT ARBITRATION AGREEMENT

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U.S. SUPREME COURT: COURTS MAY ONLY COMPEL CLASS-WIDE ARBITRATION IF EXPRESSLY AGREED UPON IN EMPLOYMENT ARBITRATION AGREEMENT

Jaimee K. Wellerstein, Esq., Bradley & Gmelich, CALSAGA Network Partner

In a split 5-4 decision in Lamps Plus, Inc. v. Varela, No. 17-988 (Apr. 24, 2019), the U.S. Supreme Court held that courts may only compel class action arbitration where the parties expressly declare their intent to be bound by such actions in their arbitration agreement. The holding and rationale are important to employers because the Court decisively ruled that class arbitration “fundamentally” changes the nature of the “traditional individualized arbitration” envisioned by the Federal Arbitration Act. Thus, the Supreme Court said, “Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”

Following the Supreme Court’s ruling, arbitration agreements must unequivocally state that the parties agree to resolve class actions through arbitration in order to proceed this way. Courts cannot compel the parties to arbitration when an arbitration agreement is ambiguous about the availability of class arbitration.

Employer Takeaway: This ruling is a win for employers. Courts can no longer impose class-wide arbitration unless the employer’s arbitration agreement clearly authorizes this. Only express agreements between the parties can lead to class arbitration. Companies, along with their counsel, should review their employment arbitration agreements to determine whether they comply with the SCOTUS standards.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas. Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available. jwellerstein@bglawyers.com 818-243-5200.

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Kate

THE CALIFORNIAN 2018 Q3 – CALIFORNIA SUPREME COURT DECISION REDEFINES THE GUIDELINES OF INDEPENDENT CONTRACTORS

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CALIFORNIA SUPREME COURT DECISION REDEFINES THE GUIDELINES OF INDEPENDENT CONTRACTORS

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

On April 30, 2018, The California Supreme Court issued a ruling in Dynamex Operations West. Inc. v. Superior Court, making it much more difficult to classify an individual as an independent contractor (rather than employee). The previous standard for classifying individuals as employees or independent contractors had been in place since the 1980’s and was based on a multi-factor test that considered, among other factors, the individual’s abilities, the method of payment, and the extent of control exercised over individual. In the Dynamex ruling, the Supreme Court adopted a new three-part “ABC Test” that is intended to reduce the use of independent contractors in the California workforce.

The new standard adopted by the California Supreme Court requires the hirer to establish three factors in order to properly classify a worker as an independent contractor – and in the process greatly expands the definition of “employee” under California law. Here is the information to classify an individual as an Independent Contractor:

Is free from the control and direction of the hirer in connection with the performance of the work, both under contract for the performance of such work and in fact; and

Performs work that is outside the usual course of the hiring entity’s business; and

Is customarily engaged in an independent established trade, occupation or business.

All three are required in order to fulfill the test.

Even though the “ABC Test” is written to simplify the definition of independent contractor, the application of the three part test is not going to be that simple. It will be the hirer’s responsibility to satisfy the “ABC Test” in order to lawfully classify an individual as an independent contractor. Please keep in mind, this decision was made under the Wage Orders of the Industrial Welfare Commission. As we all know, there will more than likely be subsequent cases, actions and rulings that will be restricting or expanding the Court’s decision to other state department (i.e. Workers’ Compensation).

So, if you are hiring independent contractors or being hired as an independent contractor, now is the time to review the following regarding the new “ABC Test”:

-Identify your independent contractor relationships

-Description of duties of those relationships to the “ABC Test”

-Review contracts involving independent contractors

-Prepare a file for each relationship to include name, description of duties, FEIN#, insurance certificates…

-And any additional information to support the independent contractor relationship (Remember, independent contractors must have the ability to work for multiple clients and they provide their own tools and materials to complete the job free from control of the hirer)

 

Thank you for taking the time to read the article.

Shaun Kelly joined Tolman & Wiker Insurance Services in 2005.  He specializes in all lines of property and casualty insurance for industries including contract security firms, agriculture, construction, oil and gas. Shaun received a BS in Business Administration with a major in Finance from California State University in Fresno, California. He is an active member of several industry associations, including the Association CALSAGA, the Kern County Builders Exchange and the Independent Insurance Agents of Kern County. Shaun can be reached at 661-616-4700 or skelly@tolmanandwiker.com.

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