The California Supreme Court Clarifies Rights of Employees Misclassified as “Independent Contractors”

The California Supreme Court issued a unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court, Case No. S222732, that clarified how California courts should determine whether a worker is an “independent contractor” or an “employee.” Altshuler Berzon LLP participated in briefing and oral argument before the California Supreme Court. The Court’s ruling will affect hundreds of thousands of California workers in the gig economy as well as traditional workplaces, and will broadly extend the protections of the California Labor Code and wage orders to these workers.

Before the Supreme Court’s decision, the California courts used an unpredictable, multi-factor test to distinguish between employees and independent contractors. In Dynamex, the Court instead adopted a greatly simplified, three-pronged “ABC” test for determining whether companies “suffered or permitted” the work or working conditions at issue. Under that test, a worker is presumed to be an employee unless the employer can establish all three of the following requirements: (A) 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; (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. This standard will make it substantially more difficult for businesses to misclassify as “independent contractors” the workers who provide the business’s core services, and should result in a far greater number of workers enjoying the benefits accorded by law to employees.

Altshuler Berzon LLP attorneys submitted amicus curiae briefs in the case on behalf of three labor unions, and Altshuler Berzon LLP partner Michael Rubin presented oral argument before the California Supreme Court on behalf of all plaintiff-side amici.

To read the California Supreme Court’s decision, click here.

Altshuler Berzon LLP Lawyers Named 2018 California Lawyer Attorneys of the Year

Recognized for Immigration Law Achievement

On March 21, 2018, the Daily Journal awarded its 2018 California Lawyer Attorneys of the Year (CLAY) Awards to attorneys throughout the state, including Altshuler Berzon LLP.

Altshuler Berzon LLP was recognized for its work with attorneys from other firms, public interest organizations, and public agencies to obtain nationwide preliminary injunctive relief halting the Trump Administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program and forcing the government to resume processing DACA renewal applications.  The relief, which the Daily Journal termed “a profound victory,” was issued by U.S. District Judge William H. Alsup in a case pending in the Northern District of California.  The DACA program protects from deportation some 700,000 “Dreamers” — undocumented immigrants who came to the United States as children — and permits them to work lawfully.  Altshuler Berzon LLP attorneys Jonathan Weissglass, Stacey Leyton, and Eric Brown worked on the case.

Court Finds First Amended Complaint Adequately Alleges Google Discriminated Against a Broad Class of Women Employees and Rejects Google’s Challenge to Gender Discrimination and Equal Pay Suit

On March 27, 2018, the San Francisco Superior Court overruled Google’s demurrer to an amended complaint filed by Altshuler Berzon LLP and co-counsel alleging that Google has engaged in systemic and pervasive pay and promotion discrimination against its women employees in California.  The court found that the amended complaint adequately alleges that Google has company-wide policies that pay women less than comparable men and that Google assigns women to lower-paying jobs based on gender stereotypes.  Based on those alleged policies and stereotyping, and Google’s failure to correct known gender pay differences, the court held that the amended complaint adequately alleges that Google intentionally discriminates against women.  Because Google’s alleged discriminatory policies and practices apply throughout the company, the court ruled that the lawsuit may continue against Google for the Engineer and Project Manager Covered Positions, in addition to the Software Engineer, Software Manger, Sales, and Early Childhood Education Covered Positions listed in the amended complaint.  The court found that “Plaintiffs’ claims are typical of the entire class, regardless of whether they held an ‘Engineer Covered Position’ or ‘Program Manager Covered Position,’ because the entire class was subject to the same compensation policies and practices.”


The court’s order can be found here.

N.D. Cal. Issues Nationwide Preliminary Injunction Requiring Federal Government To Maintain DACA Program

The United States District Court for the Northern District of California has entered a nationwide preliminary injunction requiring the federal government to maintain the Deferred Action for Childhood Arrivals (DACA) program for the duration of lawsuits challenging the Trump Administration’s abrupt rescission of the program.  The district court found that plaintiffs County of Santa Clara and Service Employees International Union, Local 521, represented by Altshuler Berzon LLP, as well as other plaintiffs, represented by co-counsel at several other law firms and the Attorney General of California, were likely to succeed on the merits of their claims that the federal government’s action rescinding DACA was arbitrary and capricious and must be set aside under the Administrative Procedure Act.  The preliminary injunction, entered in five related cases raising similar claims, requires that approximately 700,000 DACA recipients be permitted to apply for renewal of their DACA status, freeing them from fear of deportation and separation from their families and communities, and allowing them to continue working lawfully in the United States.

To read the district court’s order, click here.

Altshuler Berzon LLP Files Amended Complaint Against Google in Sex Discrimination Class Action

Altshuler Berzon LLP, with co-counsel Lieff Cabraser Heimann & Bernstein LLP, filed an amended complaint in San Francisco Superior Court alleging that Google has engaged in systemic and pervasive pay and promotion discrimination against its female employees in California.  The lawsuit, Ellis v. Google Inc., originally filed by Kelly Ellis, Holly Pease, and Kelli Wisuri, accuses Google of paying women at all levels less than comparable men, assigning women to lower tiers and/or job ladders with lower compensation and/or upward mobility than those to which similar men are assigned, and promoting women slower and less frequently than their male counterparts.  The amended complaint adds new plaintiff Heidi Lamar and specifies particular job classes and positions in which Google allegedly paid women less than comparable men.  Plaintiffs allege that Google has long known of these issues but has failed to correct them, causing substantial damage to its female workforce.

To read the amended complaint, click here.

California Supreme Court unanimously affirms interest arbitration for farmworkers against constitutional challenges in Gerawan Farming v. ALRB.

The California Supreme Court recognized that the main purpose of the 2002 amendments was to enable farmworkers who choose to be represented by a union to obtain the benefit of a collective bargaining agreement.  Although the ALRA was enacted in 1975 to provide farmworkers the right to organize and bargain, by the time of the 2002 amendments, approximately 60 percent of the bargaining units that voted for union representation had never been able to obtain an initial contract.  In the case before the Court, Gerawan Farming employees had elected the United Farm Workers of America as their representative in 1990, but Gerawan Farming had never agreed to a contract with the union.  In addition to rejecting Gerawan Farming’s constitutional challenges to the interest arbitration procedure, the California Supreme Court also rejected Gerawan Farming’s argument that it should be permitted to avoid referral to mediation and interest arbitration by asserting that the union had previously “abandoned” the bargaining unit.  In a related decision issued at the same time, Tri-Fanucchi Farms v. ALRB, the Court unanimously ruled that “abandonment” is not a defense to the employer’s duty to bargain in good faith under the ALRA with a certified union, and that the Agricultural Labor Relations Board did not abuse its discretion by awarding make-whole relief to workers whose employer refused to bargain on that ground.

Altshuler Berzon LLP was co-counsel in the Supreme Court for Real Party in Interest United Farm Workers of America in Gerawan Farming, along with co-counsel Martinez Aguilasocho & Lynch, APLC.


California Court of Appeal Affirms Trial Ruling that Lead Paint Manufacturers are Liable for Causing Public Nuisance

On November 14, 2017, the California Sixth District Court of Appeal affirmed in principal part a groundbreaking trial court ruling that three paint manufacturers – Conagra Grocery Products Company, NL Industries, Inc., and Sherwin-Williams Company – had created a “public nuisance” by marketing lead paint for interior residential use throughout the first half of the 20th century, despite having actual knowledge that exposure to lead resulted in critical health dangers, especially to children.  The trial court’s remedial order required the three companies to contribute $1.15 billion to an abatement fund that will be used to identify and clean up lead paint hazards in older-stock housing in counties across California.  The companies challenged that ruling on numerous grounds under state and federal law, which were almost uniformly rejected by the Court of Appeal in its 137-page decision.  Most notably, the Court of Appeal concluded that there was substantial evidence supporting the trial court’s finding that the lead paint companies knew of the hazards of using lead paint on housing interiors at the time that they marketed lead paint for that purpose.

Although the Court of Appeal narrowed the scope of the trial court’s ruling in one respect, ruling that the companies were liable only for housing built before 1951, most of the housing at issue was built before that date.

The Court of Appeal’s decision can be found here.

Altshuler Berzon LLP acted as Special Appellate Counsel on the appeal, working in conjunction with lead trial and appellate counsel from the Santa Clara County Counsel’s office.

Altshuler Berzon LLP files amicus brief on behalf of Service Employees International Union in Supreme Court First Amendment case

Altshuler Berzon, LLP filed an amicus brief today on behalf of the Service Employees International Union (“SEIU”) in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The case arose when Respondents Charlie Craig and David Mullins sought to purchase a cake for their wedding from Petitioners Masterpiece Cakeshop, Ltd., a Colorado bakery, and its proprietor, Jack Phillips.  Phillips refused to serve Craig and Mullins, saying he would not make a wedding cake for a same-sex couple.  Respondent Colorado Civil Rights Commission determined that, in doing so, Masterpiece violated the state’s antidiscrimination law, which prohibits places of public accommodation (including bakeries) from denying service to customers on account of their sexual orientation.

In the Supreme Court, Masterpiece has argued that Phillips’ custom wedding cakes are either artistic “pure speech” or expressive conduct, and that it therefore has a First Amendment right to refuse to make custom cakes for LGBT weddings.  SEIU’s amicus brief, supporting Respondents, shows why Masterpiece’s dangerous and unfounded free speech arguments would require a radical expansion of First Amendment law, which, if accepted, would seriously threaten the states’ traditional prerogative to regulate conduct deemed harmful to society, including by enacting civil rights laws.  Specifically, the brief argues that the court should not abandon the doctrine that conduct is “expressive” only if reasonable observers would understand it to express an idea (and that providing a wedding cake would not be so understood), as well as the rule that laws aimed at conduct do not violate the First Amendment as long as they do not substantially interfere with the expressive elements of such conduct.  Because it is vitally important that the Court continue to recognize that the states may validly enact laws aimed at conduct, rather than speech, and that such laws do not violate the First Amendment even when they are applied to artists and other persons engaged in even unquestionably expressive activity (which baking a cake is not), SEIU’s amicus brief urges the Court to hew to its longstanding precedent and rule for Respondents in this case.

To read the full brief, click here.


C.D. Cal. Approves $13 Million Settlement of Privacy Class Actions Against HSBC

The U.S. District Court for the Central District of California today granted final approval to the settlement of three class action lawsuits alleging that HSBC and its representatives violated California’s Invasion of Privacy Act by recording their credit-card-related telephone phone calls to HSBC credit card account holders without the account holders’ knowledge or consent.  HSBC will pay a total of $13 million to resolve the CIPA claims asserted in Fanning v. HSBC Card Services, Inc., Lindgren v. HSBC Card Services, and Medeiros v. HSBC Card Services, Inc. 

In granting final settlement approval, the District Court found that the settlement amount negotiated by Altshuler Berzon LLP and its co-counsel was considerably greater than in comparable CIPA call-recording cases, and that the results achieved were particularly noteworthy considering the substantial litigation risks that counsel overcame in litigating the cases.  The court also noted that the structure of the Plan of Allocation ensured that individual recoveries for participating class members would be determined by the strength of their claims, including the number of times they were called and whether the recordings were confirmed by existing bank records – in which case settlement payments would be automatic, without the class member having to file any claim form to obtain a recovery.

Additional information about the cases and the settlement is available at