US President Donald Trump’s agenda of expanded detention and deportation of undocumented immigrants has been frustrated by the refusal of some states and cities to participate the federal authorities’ crackdown, which opponents say unfairly targets non-criminals and makes immigrant communities less safe by eroding their trust in the police. Last September, California passed a law prohibiting employers in the state from voluntarily allowing Immigration and Customs Enforcement (ICE) agents onsite to conduct immigration inspections or to access employee records without a warrant or court order.
In an apparent response to the state’s defiance, ICE has stepped up enforcement raids in California this year, as well as other jurisdictions that have passed “sanctuary” laws barring local authorities from cooperating with federal agents in immigration enforcement. These laws have enraged Trump and ICE director Thomas Homan, who have accused legislators in these areas of endangering citizens and officers to protect undocumented criminals. California lawmakers counter that they are merely insisting that ICE agents show documents they are already federally required to present before conducting inspections.
This tension between Sacramento and Washington has put California employers between a rock and a hard place, Nour Malas reports at the Wall Street Journal, as they receive conflicting instructions from state and federal authorities and fear being targeted by one for cooperating with the other. In response to the recent wave of raids, Democratic State Attorney General Xavier Becerra warned employers that they could face legal action by the state if they voluntarily hand over information about their employees to ICE.
US Magistrate Judge Jacqueline Scott Corley issued her ruling on Thursday in a case brought against GrubHub late last year by former food delivery driver Raef Lawson, who claimed that the company’s gig economy business model had violated his rights as an employee under California law. Corley was not persuaded, however, by Lawson’s argument that GrubHub exerted enough control over when and how he worked for him to qualify as an employee and instead found that the company was correct to treat him as an independent contractor, TechCrunch’s Megan Rose Dickey reports:
A key element of the case centered around the Borello test, which looks at circumstances like whether the work performed is part of the company’s regular business, the skill required, payment method and whether the work is done under supervision of a manager. The purpose of the test is to determine whether a worker is a 1099 contractor or a W-2 employee.
On the basis of the Borello standard, Corley concluded that “GrubHub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with GrubHub.” She also expressed concerns over Lawson’s honesty, noting that he misrepresented his education in his résumé and “intentionally manipulated the app to get paid for not working,” undermining the credibility of his testimony.
Being the first to weigh in on whether gig economy workers enjoy rights as employees, Corley’s ruling could set a precedent with implications for other gig economy companies. However, as Dickey notes, the judge hesitated to cast her ruling as dispositive with regard to the gig economy as a whole:
Jeffrey B. Banke/Shutterstock
Last week, federal Immigration and Customs Enforcement agents raided 98 7-Eleven stores throughout the US, arresting 21 people, including undocumented workers and franchise owners who were caught employing them. The point of the raids was not so much the arrests themselves, but rather a show of force intended to scare employers away from employing undocumented immigrant workers by demonstrating that the federal government was serious about cracking down on them, New York Times reporter Natalie Kitroeff noted earlier this week:
[A]ccording to law enforcement officials and experts with differing views of the immigration debate, a primary goal of such raids is to dissuade those working illegally from showing up for their jobs — and to warn prospective migrants that even if they make it across the border, they may end up being captured at work. Targeting 7-Eleven, a mainstay in working-class communities from North Carolina to California, seems to have conveyed the intended message.
“It’s causing a lot of panic,” said Oscar Renteria, the owner of Renteria Vineyard Management, which employs about 180 farmworkers who are now pruning grapevines in the Napa Valley. When word of the raids spread, he received a frenzy of emails from his supervisors asking him what to do if immigration officers showed up at the fields. One sent a notice to farmhands warning them to stay away from 7-Eleven stores in the area.
Employers in Northern California, in particular, are expected to be the targets of ICE’s next round of raids, the San Francisco Chronicle reported on Wednesday, in what has been described as retaliation against the wave of “sanctuary” laws passed by numerous localities and the state of California limiting the degree to which local authorities can cooperate with federal agents in immigration enforcement. Another law passed last fall bars employers in the state from voluntarily allowing ICE agents onsite to conduct immigration inspections or to access employee records without a warrant or court order.
Even as the Trump administration rolled back numerous Obama-era regulations at the federal level and took more employer-friendly stances on a number of hot-button labor issues, 2017 also witnessed the continued proliferation of new laws and regulations in states and localities, particularly those whose legislatures are dominated by Democrats. Many of these policy changes came into force on January 1, while others will become effective later in 2018, meaning countless US organizations will have to adjust to a new and more complex regulatory landscape this year.
Minimum Wages Rise for Millions of Workers
To begin with, minimum wages rose on Monday in 18 states, including several that passed referenda to that effect in 2016. Arizona, California, Colorado, Hawaii, Maine, Michigan, New York, Rhode Island, Vermont, and Washington saw increases ranging from 35¢ to $1.00 per hour due to legislative or ballot measures, while the pay floors in Alaska, Florida, Minnesota, Missouri, Montana, New Jersey, Ohio, and South Dakota, which are pegged to inflation, rose automatically. The left-leaning Economic Policy Institute calculates that 4.5 million employees in total will see their pay increase thanks to these measures—though opponents of minimum wage hikes would argue that some of these employees will be laid off as their employers can no longer afford to pay them at the new rate.
California Keeps on Being California
With its huge labor market, diverse economy, and liberal government, California is a longstanding laboratory of progressive legislation, which serves as a bellwether for emerging regulatory trends and has an impact beyond the state’s borders as multi-state employers often opt to comply with California’s stricter rules nationwide for simplicity’s sake. A number of new laws came into effect in the Golden State this week that employers there need to be aware of. Mark S. Spring, a partner at Carothers DiSante & Freudenberger LLP, breaks down all of these changes at TLNT. Here are the changes in brief:
In a San Francisco courthouse, US Magistrate Judge Jacqueline Scott Corley recently heard closing arguments in a case brought against GrubHub by former food delivery driver Raef Lawson, challenging the platform’s gig economy business model and claiming protections for drivers as employees under California law. Corley’s ruling in this case is highly anticipated, as she will be the first US judge to weigh in on whether gig economy workers like Lawson have a right to those protections—while Uber and Lyft have both faced similar lawsuits, both of the ride-sharing platforms settled these disputes out of court.
Lawson is represented by Shannon Liss-Riordan, the same Boston-based attorney who pressed the cases of the Uber and Lyft drivers and is also challenging the independent contractor status of gig economy workers at other platforms. SF Gate’s Joel Rosenblatt looked in on the GrubHub case last week:
As the first case of its kind in the U.S., the GrubHub trial “will inevitably be treated as a bellwether,” said Charlotte Garden, an associate law professor at Seattle University. “That’s especially true because the lawyers in this case are also involved in other larger and higher profile misclassification cases, including the Uber case,” said Garden, who has followed the Uber litigation closely.
California Governor Jerry Brown on Thursday signed a bill that will prohibit all public and private employers in the state from asking job candidates about their prior salaries and require them to give candidates a pay range for the role to which they are applying upon request. The new law, which is meant to help close the gender pay gap, takes effect January 1, SF Gate reports:
Last year, the state passed a weaker law that said prior compensation, by itself, cannot justify any disparity in compensation. The new bill goes further by prohibiting employers, “orally or in writing, personally or through an agent,” from asking about an applicant’s previous pay. However, if the applicant “voluntarily and without prompting” provides this information, the employer may use it “in determining the salary for that applicant.” …
The bill was one of nine Brown signed Wednesday designed to help women and children. One of them, SB63, will let mothers and fathers working for employers with 20 to 49 employees take 12 weeks of unpaid, job-protected leave to care for a newborn or newly adopted child or foster child. Businesses with 50 or more workers already had to provide this. The leave can be taken in two-week increments.
With this bill, California joins Delaware, Massachusetts and Oregon as states with bans on salary histories coming into effect within the coming year. The governor of Illinois vetoed a similar ban in August, but the trend among liberal-leaning states is otherwise unmistakeable. Salary history bans have also been enacted at the local level in places like New York City and San Francisco, while a version in Philadelphia has been held pending a court challenge.
A bill recently passed by both houses of the California state legislature and now awaiting the signature of Governor Jerry Brown would, with certain limited exceptions, prohibit California employers from voluntarily allowing Immigration and Customs Enforcement (ICE) agents onsite to conduct immigration inspections or to access employee records without a warrant or court order. Supporters of the bill describe it as a means of protecting California’s immigrant workers from abuse by federal authorities and of resisting President Donald Trump’s immigration policies, which have resulted in a spike in ICE raids and allegations of rights violations. SHRM’s Lisa Nagele-Piazza has the details on the bill:
Among other things, A.B. 450 would require employers to:
- Obtain warrants and subpoenas from federal immigration agents before granting them access to nonpublic areas of the worksite or permitting them to inspect certain employee records.
- Notify workers and their labor unions about an ICE enforcement activity within 72 hours of receiving notice of the inspection.
- Provide each current affected employee and the employee’s authorized representative with the results of an inspection within 72 hours of receiving such information from ICE.
- Pay penalties of between $2,000 and $10,000 for violations.
Currently, employers may voluntarily comply with federal agents’ requests to access the worksite during an immigration-related investigation.
If Brown signs the bill, organizations in the state will have to train their employees not to voluntarily consent to ICE actions, among other compliance challenges.