Ninth Circuit Significantly Expands Scope of TCPA – Broadly Defines “Autodial” Systems to Prevent Spam Texts and Calls

September 28, 2018. On September 20, 2018, the Ninth Circuit issued its published opinion in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), expanding the scope of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) by broadly defining the term “automatic telephone dialing system” (“ATDS”). Congress enacted the TCPA in 1991 to prohibit unsolicited spam marketing via telephone. Among other things, the TCPA establishes the following restrictions on spam phone calls, text messages, and faxes: (b)Restrictions on use of automated telephone equipment (1)Prohibitions It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States— (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or [...]

California Supreme Court Clarifies Test for Independent Contractor Misclassification

May 7, 2018. On April 30, 2018, the California Supreme Court issued its opinion in Dynamex Operations v. Superior Court, 4 Cal. 5th 903 (2018) and set forth a new, more restrictive test for determining whether a worker can be properly classified as an independent contractor. There are substantial economic incentives for a business to mischaracterize workers as independent contractors rather than employees, as noted by the Supreme Court. These include the unfair competitive advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees. If a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance, and complying with numerous statutes and regulations governing [...]

California Amends Fair Pay Act to Prohibit Employers from Asking Job Applicants About Salary History

October 16, 2017. On October 12, 2017, California Governor Jerry Brown signed into law a ban on employers inquiring about job applicants’ salary history. See Labor Code § 432.3. The new law amends California’s Equal Pay Act and Fair Pay Act to further enhance California law prohibiting gender-based pay discrimination, as employers often use past salary information to justify paying women less than men. Under the new statute, employers are now prohibited from inquiring about or using prior salary history to justify pay differences between employees. See Labor Code § 432.3. Section 432.3 provides that: An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant; An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and [...]

California Codifies Protections for Piece-Rate Workers and Requires Compensation for All Time Worked, Including Non-Productive Time

January 8, 2016. Effective January 1, 2016, California labor law sets forth a statutory framework governing compensation schemes for so-called “piece-rate” workers – those paid a set amount on a per task basis, rather than by the hour. Numerous California court decisions and opinion letters from the Division of Labor Standards Enforcement have already made clear that any piece-rate pay system must adequately compensate workers for, among other things, nonproductive time, rest and recovery periods, travel time, and other de minimis tasks. These requirements have now been codified by the California legislature in Labor Code § 226.2. Section 226.2 now expressly requires that employees “shall be compensated for . . . nonproductive time separate from any piece-rate compensation.” Labor Code § 226.2(a)(1). Section 226.2 defines “other nonproductive time” as time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being [...]

California Enacts Fair Pay Act to Strengthen Gender Pay Gap Laws

October 13, 2015. According to a U.S. Census Bureau report this year, women in California who work full time are paid substantially less than men, a median 84 cents on the dollar. The gender pay gap has been a widely reported problem and for years been the subject of various federal and state laws. On October 6, 2015, Governor Jerry Brown signed into law the California Fair Pay Act, Labor Code § 1197.5, to strengthen California state law prohibiting gender-based pay discrimination. The new law amends the California Equal Pay Act, previously enacted in 1949, which for decades has required gender pay equity. That law stated that “No employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs.” The new amendment strengthens the Equal Pay Act in [...]

California Supreme Court Strengthens Song-Beverly Act’s Prohibitions on Collection of Consumers’ Personal Identification Information

February 17, 2011. On February 10, 2011, the California Supreme Court issued its unanimous opinion in Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011), strengthening the Song-Beverly Act’s restrictions on retailers’ collection and use of consumer data and holding that even a ZIP code constitutes “personal identification information” under the statute. California Song Beverly Act, Cal. Civ. Code § 1747.08(a), forbids retailers from requesting and recording personal identification information during or in connection with credit card transactions. The statute, as enacted in 1990 and amended in 1991, was created to accomplish two goals: 1) guard against identity theft; and 2) prevent consumers from receiving unwanted, spam marketing. Recent news of large, well-known retailers having suffered huge security breaches in their point-of-sale software systems underscores the importance of laws intended to safeguard consumer retail transactions against the prospect of identity theft. These news reports also emphasize such breaches [...]

California Supreme Court’s Kwikset Decision Strengthens Consumer Protection Laws

February 2, 2011. On January 27, 2011, the California Supreme Court issued its opinion in Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), strengthening California’s unfair competition law, Cal. Bus. & Prof. Code § 17200, and clarifying the elements required for standing under Proposition 64. In Kwikset, the plaintiff accused the company of improperly advertising locksets as “Made in USA” when, in fact, some parts were manufactured abroad. The plaintiff brought claims for unfair competition pursuant to § 17200 and for false advertising. The trial court in Kwikset issued injunctive relief, finding that the company’s labeling was indeed false, but held the plaintiff was not entitled to restitution for equitable reasons. While the case was pending on appeal, California voters passed Proposition 64, which limited a plaintiff’s standing to sue in unfair competition and false advertising cases. Proposition 64 required that a plaintiff show “injury in fact” [...]

California’s Automatic Renewal Law Effective December 1, 2010

December 10, 2010. Effective December 1, 2010, California’s new Anti Automatic Renewal Law, Cal. Bus. & Prof. Code § 17600 et seq. imposes important new restrictions on so-called negative option billing programs, in which a consumer continues to be billed at regularly intervals, usually monthly, for repeated services or shipments of products until the consumer cancels or opts out of future charges. The new law requires retailers to, among other things, disclose any automatic renewal terms in a “clear and conspicuous” manner. It defines by statute what “clear and conspicuous” means in terms of font size and type, requires that the disclosures be in visual proximity to request for consent to the offer, and it requires retailers to obtain a consumer’s “affirmative consent” before instituting automatic renewal charges. Id. §§ 17602(a)(1)-(2), 17601(c). The law also requires retailers to provide consumers with a written acknowledgement setting forth the automatic renewal [...]

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