NEW CASES OF INTEREST – JANUARY 3, 2020

Wishnev v. The Northwestern Life Insurance Co. (2019) 8 Cal.5th 199.

This is a case decided by the California Supreme Court after a referral from the Ninth Circuit Court of Appeals.  The court found that the provision in Civil Code § 1916-2 prohibiting lenders from assessing compound interest, unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith, does not apply to lenders who are exempt under California Constitution Article XV.  Exempt lenders the court found are not bound by the interest rate provisions otherwise applicable to lenders generally, and Section 1916-2 of the Civil Code prohibiting lenders from assessing compound interest except under certain agreement provisions that may be expressed in writing, does not apply to lenders exempt under Article XV.

Glynn v. Superior Court (2019) 42 Cal.App.5th 47.

Partially reversing a grant of summary judgment in favor of an employer on employee causes of action for discrimination and wrongful termination and violation of public policy, the court held that a lack of animus does not preclude liability for disability discrimination.  In this case the employer’s mistaken belief that a physically disabled employee was unable to work with or without accommodation and thus could be discharged, didn’t result in the employer being protected from potential liability.

New Statutory Issues.

Amendments to Labor Code § 3351 and the addition of Labor Code § 2750.3 seek to codify the Supreme Court’s decision in Dynamex, 4 Cal.5th 903 (2018).  It establishes a presumption that a worker who performs services for hire is an employee unless the hiring entity is able to demonstrate:  a) the person is free from the control and direction of the hiring entity in connection with the performance of the work; b) the person performs work that is outside the usual course of the hiring entity’s business; and c) the person is customarily engaged in an independently established trade, occupation or business.  The statute also exempts certain occupations which include, among others, licensed insurance agent, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, barbers and cosmetologists, and other performing work under a contract for professional services with another business entity or under a subcontract in the construction industry.

Additionally, no agreement to settle an employment dispute entered into on or after January 1, 2020, may contain a provision prohibiting, preventing, or otherwise restricting the settling party/employee from obtaining future employment with the employer, finding that such a provision is against public policy and void as a matter of law.