 |
 |
 |
PUBLICATIONS — ARCHIVED
GETTING TO KNOW YOUR WAGE ORDER
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-12-30
In the Golden State, most private employers must grapple with no fewer than six major sources of wage and hour laws when one considers statutory, regulatory, and case law in both the state and federal systems. The state Industrial Welfare Commission Wage Orders are part of this web of wage and hour laws and rules.
AN EMPLOYMENT LAWYER'S HOLIDAY WISH LIST
By D. Gregory Valenza
The Daily Journal
2010-12-16
As 2010 comes to a close, we lawyers send good wishes to our clients, co-workers, and even our adversaries. Well, most of them, anyway. The new year brings the chance for a fresh start, change, new challenges, and the promise of a different world.
EEOC REGULATIONS SHED LIGHT ON "GINA"
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-12-14
Earlier this year, we wrote about the Genetic Information Nondiscrimination Act, or "GINA" — at the time, a relatively new federal anti-discrimination law prohibiting employment discrimination on the basis of applicants' or employees' genetic information and containing other non-employment related provisions. (See "Getting to Know 'GINA'," appearing in this column on March 9, 2010.) Under the law, "genetic information" is defined broadly to include not only the results of genetic tests given to individuals or their family members, but also any "manifestation of a disease or disorder" present in the applicant's or employee's family members (i.e., family medical history), whether or not such disease or disorder is genetically linked.
THE U.S. DEPARTMENT OF LABOR'S "ADMINISTRATOR INTERPRETATIONS"
By D. Gregory Valenza
HR Advisor
2010-12-01
The United States Department of Labor is the agency responsible for administering many of the federal laws governing the American workplace. To handle its wide-ranging responsibilities, the DOL is organized into smaller bureaus. The Wage Hour Division ("WHD") is responsible for the enforcement and interpretation of the FLSA and the FMLA.
SOCIAL MEDIA IN THE WORKPLACE
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-11-30
Social media or networking websites like YouTube, Facebook and LinkedIn present employers with a new set of challenges. These fora have obvious business-related benefits—for example, they can provide legitimate business networking and marketing opportunities. However, they can also result in wasted worktime. Even worse, these sites sometimes serve as a forum for employees to disclose to the public (clients and coworkers included) workplace matters employers would rather keep in-house. The metaphor of the "water cooler" conversation takes on a whole new meaning when the watercooler is broadcast to the world.
WORKPLACE VIOLENCE PREVENTION: THAT COULDN'T HAPPEN HERE?
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-11-16
Workplace violence incidents remain in the news. The headlines contain shocking accounts of attacks at workplaces of all sizes, in the public and private sectors. The industries involved range from academia to office environments, from government offices, to manufacturing settings. The locations vary from Connecticut to Texas; from Albuquerque to Baltimore. Perpetrators and victims alike come from all backgrounds, crossing gender, race, socio-economic, educational, professional and virtually all other lines.
NEW GOVERNOR, NEW EMPLOYMENT LAWS COMING
By D. Gregory Valenza
The Daily Journal
2010-11-09
Elections have consequences for employers and their lawyers. Governor Brown may turn out to be a pro-business governor, sensitive to the delicate economic conditions employers face, persistent high unemployment, and the incredible patchwork of laws and regulations already daunting employers. Sure, and the Easter Bunny is on his short list for Labor Commissioner.
NO NEED TO FORCE EMPLOYEE BREAKS, SAYS COURT OF APPEAL
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-11-05
What does it mean to "provide" employees with required meal and rest breaks? That employers must "ensure" or "force" employees to take them, or simply make them "available" to employees? While the law is relatively settled that employees need only be given the opportunity to take rest breaks, it is not clear whether this same standard applies to meal periods. Indeed, California employers eagerly await the California Supreme Court's determination of this question in Brinker Restaurant v. Superior Court (Hohnbaum) and Brinkley v. Public Storage. In the interim, the Court of Appeal recently decided a case addressing the meal period issue, Hernandez v. Chipotle Mexican Grill, Inc.
NEW LAWS FOR CALIFORNIA EMPLOYERS
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-10-19
This year, as in years past, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a number of bills that would have significantly impacted employers, and signed a few about which employers should be aware. We summarize the key laws below.
THE BENEFITS AND PRIVILEGES OF REASONABLE ACCOMMODATION
By D. Gregory Valenza
The Daily Journal
2010-10-14
Most litigation related to disability discrimination involves whether the employer adequately accommodated limitations on an employee's ability to perform essential job functions. The 9th U.S. Circuit Court of Appeals' recent opinion in EEOC v. UPS Supply Chain Solutions, 2010 DJDAR 13607 (Aug. 27, 2010), is a reminder that reasonable accommodation obligations are much broader than that.
A NEW SHERIFF IN TOWN
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-10-05
Now that we are nearly two years into President Barack Obama's administration, it is a good time to step back and consider where there have been substantive changes to employment law, and where there may be additional changes coming. Whether you view the administration's policies as good, bad or otherwise, one thing is clear. There is a new sheriff in town to enforce workplace laws.
THIS BUD'S FOR ME, BOSS
By D. Gregory Valenza
The Daily Journal
2010-09-24
Proposition 19, called the "Regulate, Control and Tax Cannabis Act of 2010," will be on the ballot this November. The initiative, among other things, would legalize adult possession and personal consumption of small quantities of marijuana.
WHO IS AN "EMPLOYER" FOR WAGE-HOUR PURPOSES?
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-09-21
Who is an employer? Despite the seeming simplicity of the question, courts have struggled with the concept in various contexts. For example, courts have defined the term for purposes of establishing the responsibility to provide leave under the Family and Medical Leave Act (FMLA), to prohibit workplace discrimination, and most recently in Martinez v. Combs, to comply with wage and hour laws.
U.S. SUPREME COURT EMPLOYMENT LAW DECISIONS: A REVIEW
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-09-08
Our last column summarized key employment law cases decided recently by the California Supreme Court. The United States Supreme Court has also issued important decisions during its October 2009 Term, of which employers should take notice. The Supreme Court's recent opinions address a variety of topics, including: pre-employment testing, attorneys' fees, employee privacy, and employment arbitration. Several important employment law cases are on the Supreme Court' docket for the 2010 Term beginning in October. We summarize below the recently decided cases and those that remain pending.
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2009-2010
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-08-25
The California Supreme Court decided significant employment law cases since our last review in 2009. The Court's opinions address a number of topics of interest to employers: wage and hour law, harassment, arbitration agreements, attorney-client privilege, and the significance of "stray remarks." However, the Court also left many issues for lawyers to wrangle with in the future. We summarize below the recently decided cases.
WHEN MOTHERS RETURN TO WORK
By Jennifer Brown Shaw and Alexander M. Sperry
California Employer Update
2010-08-20
Employees returning to work after pregnancy or adopting a child face complex challenges. The elusive "work-life balance" is difficult to achieve, and circumstances can create the need for additional time off and other issues. We discussed workplace laws protecting pregnant employees in a previous article. Here, we focus on employers' post-pregnancy obligations.
GOOGLE COMES OF AGE
By D. Gregory Valenza
The Daily Recorder
2010-08-16
All employment lawyers know winning summary judgment in an employment case is not easy. Judges understandably are reluctant to deprive plaintiffs of their day in court. The summary judgment standards afford ample opportunities for plaintiffs to identify triable issues of fact. Appellate review is de novo, permitting appellate courts to freely second-guess trial judges' conclusions.
RETAINING EMPLOYEES ACCUSED OF HARASSMENT
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-08-10
With the passage of Assembly Bill 1825, the law that requires many California employers to provide sexual harassment training to supervisors, today's employers are better informed about how to prevent, recognize, and respond to inappropriate workplace conduct than ever before. But even when an employer follows best practices designed to eliminate workplace harassment, the process will not be perfect. Employees and others in the workplace will continue to engage in conduct contrary to an employer's specific direction and policies.
WORKPLACE PRIVACY AND TEXT MESSAGES: QUON V. ARCH WIRELESS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-07-27
With motorcycle gangs, a love triangle, and text messages that were, "to say the least, sexually explicit in nature," in the words of the district court, Quon v. Arch Wireless, Inc. reads more like a cable television police drama than a typical United States Supreme Court decision. The case received significant press not only because of the salacious facts, but also because many expected the Court to determine the scope of workplace privacy in text messages and other electronic communications.
WORKPLACE HARASSMENT AND THE FIRST AMENDMENT
By D. Gregory Valenza
The Daily Journal
2010-07-14
A client asks what to do about an employee who is sending out global emails to the entire workforce, which contain rants against workplace diversity, cultures other than European, etc. The employee maintains he has a right under the First Amendment to issue such emails. But the other employees are offended and registering complaints under the "zero tolerance" harassment policy.
OPENING THE DOOR TO NEW "FAMILY"
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-07-13
The federal Family and Medical Leave Act (FMLA) causes confusion and consternation for many employers. This is understandable, considering the recent changes to the FMLA regulations and the current administration's efforts to expand FMLA coverage. The fact is, while most employers accept their legal obligation to provide FMLA benefits to eligible employees, they often are frustrated by (1) the complexity involved in navigating and administering an FMLA leave; and (2) the relative ease with which employees abuse the law. Given the numerous regulations, statutory provisions and case law, a veritable minefield awaits even the most experienced leave administrators.
SOCIAL NETWORKING: A TRAP FOR THE UNWARY
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-06-30
We live in a world dominated by the Internet, and increasingly, social networking sites like Facebook, MySpace, LinkedIn and Twitter. According to its most recently published statistics, Facebook now has over 400 million active users, half of whom sign on daily to check their accounts. These users include many employees who communicate with Facebook "friends" and Twitter "followers" (and likely work colleagues) while sitting in their office, from their mobile devices while on the road, and from their homes. Now more than ever, employers, too, find themselves turning to these online resources as a tool to disseminate corporate information, attract and evaluate candidates for employment, and, in some instances, monitor employees' behavior.
EMPLOYMENT TESTING AND UNINTENTIONAL DISCRIMINATION CLAIMS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-06-15
For the second time in a year, the United States Supreme Court has ruled on whether civil service tests given to firefighters are discriminatory. Although the two opinions arise in the contexts of big city fire departments, they are significant for all employers who rely on standardized testing in the hiring process.
MIS-FIRING FOR MISCONDUCT
By D. Gregory Valenza
The Daily Journal
2010-06-10
A client seeking advice about firing an employee who curses, throws things, or even makes threats of bodily harm expects a green light. A competent employment lawyer usually may oblige without significant risk. Usually.
NO UNION, NO PROBLEM?
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-06-03
Employers that operate without a union probably do not devote much time or resources to compliance with the National Labor Relations Act (NLRA or Act). There are, after all, many other employment laws to worry about.
ENFORCEABILITY OF ARBITRATION AGREEMENTS IN FLUX
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-05-18
Although it has been around since at least the 1600's, arbitration has grabbed headlines recently. Debate over arbitration is nothing new. In 1925, Congress enacted the Federal Arbitration Act ("FAA") "[t]o overcome judicial resistance to arbitration," and to declare "‘a national policy favoring arbitration' of claims that parties contract to settle in that manner." Under the FAA, all arbitration agreements in contracts "involving commerce" are "valid, irrevocable, and enforceable."
WHAT'S IN YOUR WALLET, JOB APPLICANT?
By D. Gregory Valenza, Esq.
The Daily Journal
2010-05-13
Recent economic data suggest the job market is thawing. With high unemployment persisting, many employers will have several candidates applying for each new job opening.
UNPAID INTERNSHIPS AND WAGE-HOUR LAW
By D. Gregory Valenza
The Daily Recorder
2010-05-05
The unpaid internship dates back to times when there were no minimum wage or overtime laws. Apprentices would work for a carpenter or silversmith, perhaps for free or maybe room and board. There were no vocational schools. All training was "on the job."
HEALTHCARE REFORM PASSED, SO WHAT’S NEXT?
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-04-21
The recent passage of the Patient Protection and Affordable Care Act ("PPACA") and the Health Care and Education Reconciliation Act ("HCERA") is old news for just about anyone. No matter what people may think about healthcare reform, virtually all are now left asking one question: What is next?
RECENT DEVELOPMENTS FROM THE CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-04-07
Although wage and hour litigation continues to keep California courts busy, employers receive much day-to-day guidance about administration of wage and hour issues not from court decisions, but from the Department of Labor Standards Enforcement (DLSE). This agency, part of the Department of Industrial Relations, enforces wage and hour requirements in the state. As part of this duty, the DLSE occasionally issues opinion letters interpreting provisions of California wage and hour law. These opinions are not binding on the courts, but are very instructive as to how the DLSE will rule on particular issues. In the past several months, the DLSE issued a number of important opinion letters, each of which is summarized below.
SLAPPING THE BOSS
By D. Gregory Valenza
The Daily Journal
2010-04-07
There are a number of ways employers can raise a former employee's ire. These include contesting an unemployment claim or reporting the former employee to a licensing agency. Sometimes ex-employees retaliate with litigation they would not have filed were it not for the employer's action. The ex-worker's claim may involve significant potential liability and defense costs, possibly motivating the employer to settle or dismiss the initial action.
OUTSOURCING HIRING
By Jennifer Brown Shaw and Geoffrey M. Hash
California Employer Update
2010-04-01
Outsourcing is "in." Employers increasingly rely on third parties for human resources tasks such as payroll, benefits and leave administration.
Some employers even outsource recruiting. Using vendors to handle these critical administrative tasks allows employers to take advantage of the vendors' subject matter expertise and economies of scale. The employer may pay a premium for these services, but can focus on its core business.
ALTERNATIVES TO EMPLOYEE NON-COMPETITION AGREEMENTS IN CALIFORNIA
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-03-29
Several recent court decisions have effectively eliminated the lawful use of non-compete and non-solicitation agreements in California except in certain limited circumstances. Those decisions recognize that California law favors open competition and freedom for employees to move from employer to employer. However, this does not mean employers must accept the risk of employees taking their valuable information and resources to the competition.
DRIVING FOR DOLLARS
By D. Gregory Valenza
Daily Journal
2010-03-09
The daily commute would be more pleasant if workers were paid for their time. The only thing that could make listening to music, talking on the phone, and sipping a hot beverage while driving more fun would be wages accruing with each lurch forward. Traffic jams, the risk of accidents, and insufferably bad driving no doubt would be less frustrating, too.
GETTING TO KNOW “GINA”
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-03-09
There's a new kid on the block in the anti-discrimination arena, and her name is GINA. Employers should already be familiar with long-standing federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"), which prohibit employment decisions made on account of applicants' and employees' race, color, national original, religion, gender, age and disability. GINA, the Genetic Information Nondiscrimination Act of 2008, now extends these same protections to the "protected category" of genetic information.
EFFECTIVE ANTI-HARASSMENT TRAINING
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-02-23
Benjamin Franklin's declaration that "an ounce of prevention is worth a pound of cure" rings true today as it did in the 1700's. In the workplace context, for example, anti-harassment and discrimination training (i.e., "EEO" training) is the "ounce of prevention" that helps prevent unlawful discrimination, harassment and retaliation claims. Even employers who do not believe in Franklin's idiom may be required to heed it.
MIXED MOTIVES IN FEHA CASES
By D. Gregory Valenza
The Daily Journal
2010-02-10
The plaintiff in an employment discrimination case must establish a link between the plaintiff's protected classification (e.g., race, sex, etc.) and adverse action (e.g., discharge, demotion, etc.). The opinions construing the Fair Employment and Housing Act say the plaintiff merely must show that unlawful discrimination was "a motivating factor" behind the allegedly discriminatory decision. The burden is not onerous. "A motivating factor" means illegal discrimination was just one reason behind the decision, even if other motivating reasons were perfectly legal.
EMPLOYER DRUG TESTING IN CALIFORNIA
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-02-09
Former Major League Baseball player Mark McGwire's recent admission that he used steroids throughout his career came as no surprise in a profession plagued by similar problems. While McGwire ostensibly used the drugs to enhance his performance, employers generally fear a decrease in performance when their employees use illegal drugs.
CALIFORNIA SUPREME COURT REINFORCES ATTORNEY CLIENT PRIVILEGE
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-02-02
The attorney-client privilege protects certain confidential communications between lawyers and their clients. But the privilege does not apply to every conversation between a lawyer and a company's employees. In Costco Wholesale Corp. v. Superior Court, the state Supreme Court explained how the attorney-client privilege applies to California employers seeking advice from their lawyers.
PREGNANT PAUSE
By D. Gregory Valenza
The Daily Journal
2010-01-13
Employees disabled by pregnancy are entitled to certain protections and benefits. The law in this area is not a model of clarity. To celebrate my law partner Jennifer Shaw's new baby, let us review California employment laws regarding pregnancy disability leave. (True, as a partner rather than an employee, Jennifer is entitled to virtually none of those rights. But as a fantastic rainmaker, lawyer, and person, she will probably be ok.)
UNDERSTANDING REASONABLE ACCOMMODATION
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-01-12
To help prevent discrimination against employees with disabilities, both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability "reasonable accommodation." This term means a modification or adjustment to the workplace that enables the employee to perform the essential functions (i.e., the primary duties) of the job.
EMPLOYMENT LAW ON THE MENU
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2009-12-29
Whether it is menu planning, budgeting, negotiating leases or franchise agreements, monitoring the internet for the latest customer reviews, or getting food prepared and to the table, restaurateurs are pulled in many directions every day. With such diverse and unrelenting pressures, it is easy to overlook compliance with the many employment laws governing the workplace. Many restaurants are small employers, without the resources to employ human resources management. It is left to the chef, general manager, or owner to know the law and apply it correctly.
CALIFORNIA SUPREME COURT RULES ON HARASSMENT AND PUNITIVE DAMAGES ISSUES
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-12-15
The state Supreme Court ruled on two thorny issues facing employers last month in Roby v. McKesson Corporation. The case addressed an important distinction between what is unlawful harassment and discrimination under state law, overlapping damages, and the constitutional limits of punitive damages. The Court's opinion provided new authority on two of the issues, harassment and punitive damages.
WALKING THE LINE: USING NON-SOLICITATION AGREEMENTS
By D. Gregory Valenza
The Daily Journal
2009-12-10
In Employment Law 101, we learn California's public policy favors free and open competition for employees' talent. Business and Professions Code Section 16600, concisely provides: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."
EMPLOYEE HANDBOOKS: OUT WITH THE OLD, IN WITH THE NEW
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-12-02
Every employment lawyer has had the experience of asking a client for a copy of her employee handbook, only to be given an old, coffee-ring stained document, cobbled together in different typefaces, only partially contained in a three-ring binder.
SUPREME COURT UPHOLDS INCENTIVE FORFEITURE
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2009-11-17
When it comes to properly paying employees, California law presents a minefield for the unwary employer. For example, wages must be paid in cash or in a form "negotiable and payable in cash" (e.g.., by check), without discount, within a specified time period after they are earned. Employees who quit or are terminated typically must be paid their final wages on their last day of employment or significant penalties may accrue. Once earned, wages cannot be forfeited, and it is illegal for an employer to recoup or collect from employees any part of wages already paid. Private agreements circumventing these rules are strictly prohibited.
WORKING AROUND THE CLOCK
By D. Gregory Valenza
The Daily Journal
2009-11-12
Some people leave their jobs at the end of the day and do not even think about work until the next shift begins. Then, there is the rest of us. California's wage and hour laws are tricky, even as applied to workers on a traditional 9-5 schedule. The rules that apply to commuting, working at home, on-call time, and other incidental work performed during what is otherwise "free" time, vex even the wonkiest of employment lawyers.
EVALUATING PERFORMANCE BASED ON SUBJECTIVE CRITERIA
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-11-03
Performance evaluations and performance improvement forms, such as warnings, receive more scrutiny during employment litigation than during employment. When the employment relationship has decayed to the point that a lawsuit occurs, employment lawyers scour annual reviews, disciplinary records, and contemporaneous supervisors' notes for evidence.
TOP 10 WAYS TO DEAL WITH WORKPLACE ROMANCES
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-10-21
The recent spotlight on David Letterman's alleged affairs with female subordinates is a useful reminder for careful employers: create a systematic plan for dealing with workplace harassment and romantic relationships. And then follow it.
EMPLOYERS BY THE BAY
By D. Gregory Valenza
The Daily Journal
2009-10-15
Employers looking to gain a foothold in San Francisco should carefully survey the terrain. San Francisco businesses are subject to local employment ordinances in addition to the many federal and state requirements. Even small businesses must comply with the host of mandates that do not apply outside the county borders. Here are the principal San Francisco ordinances that generally govern private-sector employers. Employers in specific industries may be subject to additional or different requirements.
EEOC’S PROPOSED ADAAA REGULATIONS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-10-06
The Americans With Disabilities Act's ("ADA") employment provisions became operative in 1992. Since then, the Equal Employment Opportunity Commission ("EEOC") has issued hundreds of pages of regulations, technical assistance, and whitepapers. The courts have issued countless opinions interpreting the act. And employers, consultants, and doctors have implemented policies and protocols for dealing with applicants' and employees' requests for reasonable accommodation.
PUNITIVE DAMAGES AND CALIFORNIA EMPLOYMENT LAW
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-09-22
California law authorizes punitive damages to punish and discourage "oppression, fraud, or malice." Courts have explained that punitive damages are "an expression of moral condemnation" for conduct done with "willful and conscious disregard of the rights or safety of others" or "despicable" conduct.
NEW RULES REGARDING NON-SOLICITATION AGREEMENTS IN CALIFORNIA
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-09-15
When employees with access to key company information and knowledge about company practices leave to work for competitors, employers are naturally concerned about protecting themselves. One way employers try to do this is through various types of agreements with employees designed to limit their ability to use confidential information and "trade secrets."
AN UNEVEN PLAYING FIELD
By D. Gregory Valenza
The Daily Journal
2009-09-11
The Fair Employment and Housing Act (FEHA) includes a simple provision awarding attorney's fees: "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees . . . ." Govt. Code § 12965(b). The statute's text does not distinguish between employees and employers. However, the courts do not treat employers' and employees' fee requests the same.
SARBANES-OXLEY’S WHISTLEBLOWER PROTECTION EXPLAINED
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-08-25
Sarbanes-Oxley Act of 2002 ("SOX") is a federal law. Congress passed it on July 30, 2002, in response to a number of major corporate and accounting scandals. SOX, among other things, created whistleblower protection for any employee who reports that a publicly-traded company subject to SEC regulations has engaged in any of a number of fraudulent activities.
TAKING MANAGEMENT PERSONALLY
By D. Gregory Valenza
The Daily Journal
2009-08-14
Managers generally may do their jobs without fear of personal liability for employees' claims under California law. But a recent Ninth Circuit decision is a reminder to managers that they may not be entirely immune to claims for unpaid wages.
SOMEONE TO WATCH OVER EMPLOYEES
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
2009-08-12
Employers have salutary reasons to monitor employees' work areas and employee conduct. For example, employers must attempt to prevent misconduct such as harassment before it occurs. Employers also are legally responsible to provide a safe work place. Laws and regulations have increased potential liability for workplace conduct. In the past, the work area typically was visible and tangible. Now, employees frequently interact in cyberspace, or over computer systems, rather than on an easily watched "shop floor."
VACATION AND LITIGATION
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-07-30
With summer in full swing, many employees are taking vacations with their families. Meanwhile, Human Resources managers are checking leave balances. As the Court of Appeal recently reiterated in the case of Owen v. Macy's, the law does not require that an employer provide its employees with any paid vacation. Any right to vacation benefits must come from the employer's policies, an employment contract, or a collective bargaining agreement.
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS: 2008-2009 TERM
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-07-14
Every year, the California Supreme Court decides cases that affect the workplace. Here are some of the most important employment law opinions since our last update in July 2008.
'RICCI' AND A HARD PLACE
By D. Gregory Valenza
The Daily Journal
2009-07-10
When is it lawful under anti-discrimination laws for an employer to intentionally discriminate against members of one protected class, to avoid a disparate impact claim by individuals in another protected group? The U.S. Supreme Court addressed that question in Ricci v. DeStefano, 2009 DJDAR 9567 (June 29, 2009). The court's decision explains the interplay between two branches of anti-discrimination laws: disparate treatment and disparate impact.
UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2008-2009
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-07-08
The United States Supreme Court decided several significant employment law cases during the 2008 Term. The Court's opinions addressed the validity of service fees charged by unions to nonmembers, the scope of Title VII's anti-retaliation protections, spousal rights under ERISA benefit plans, waivers of Age Discrimination in Employment Act (ADEA) claims in collective bargaining agreements, retroactivity of the Pregnancy Discrimination Act (PDA), and an employee's burden to prove age discrimination under the ADEA even when evidence exists that age was a motivating factor in the employer's decision. There currently is one case on the docket for next Term, summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2009).
PUBLIC ENTITIES ARE EXEMPT FROM CERTAIN PROVISIONS OF CALIFORNIA’S LABOR CODE
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-06-16
An on-going debate regarding whether certain provisions of California's Labor Code apply to public entities may be a bit closer to resolution. The Labor Code clearly applies to private employers. In some areas, however, it is silent as to its application to public employers. Fortunately, the California Court of Appeal recently shed some light on this issue. In Johnson v. Arvin-Edison Water Storage District, the Court held that California's Labor Code provisions governing daily overtime, meal periods, and payment of wages upon separation of employment do not apply to water storage districts.
AT WILL AT WORK
By D. Gregory Valenza
The Daily Journal
2009-06-12
In California, Labor Code Section 2922 recognizes employees and employers presumptively may end their relationship "at will." Now and then, someone writes an article or introduces legislation proposing the end of employment at will. The advocates have their reasons (e.g., at-will employment is anachronistic, meaningless because of the numerous exceptions, unfair etc.). They are wrong. At-will employment remains a legally significant principle, even with the many exceptions the courts and legislature have applied to it.
“ME TOO” EVIDENCE IN DISCRIMINATION CASES
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-06-04
The California Court of Appeal's recent decision in Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties may change the way courts rule on evidence in discrimination cases. The court found admissible as proof of discrimination other employees' testimony about discrimination against them. Such "me too" evidence therefore may be admissible to bootstrap the plaintiff's own claim.
THE “WORK SHARING” PROGRAM: AN ALTERNATIVE TO LAYOFFS
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-05-21
Employers facing tough economic times are sensitive to the impact layoffs have on their employees. To avoid eliminating jobs, some employers look for other cost-cutting measures that distribute the financial burden across the workforce. One option for employers serious about cutting payroll costs is to reduce work hours for non-exempt employees.
VIRAL MANAGING
By D. Gregory Valenza
The Daily Journal
2009-05-08
Employers are struggling to make ends meet under difficult economic conditions. They have reduced their workforces so that the remaining employees must do more with less help. The last thing we need is a flu outbreak.
WHEN ARE ARBITRATION AGREEMENTS ENFORCEABLE?: WHEN IN “ROMAN”
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-05-07
Federal and state legislation establish a public policy encouraging the use of arbitration agreements to resolve disputes. However, many employers have seen their agreements invalidated since the California Supreme Court‘s 2000 decision in Armendariz v. Foundation Health Psychcare, Inc. In that case, the Court imposed several procedural requirements for employment arbitration agreements. Recent appellate decisions have relied on those requirements to refuse to enforce employer's existing arbitration agreements.
TIP POOLING: A NEW WAGE AND HOUR ISSUE TO BE EXPLOITED?
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-04-23
Maybe like your morning, the controversy over tip pooling perked up over a cup of coffee. A little over a year ago, a court awarded over $85 million dollars to Starbucks "baristas," finding a Starbucks tip pooling policy allowed shift supervisors to unlawfully share in the pooled tips. While many employers may be familiar with other wage and hour issues, such as overtime and meal and rest breaks, tip pooling is one of those issues that has gone undisturbed for many years. Now that the sleeping giant is awake, employers in applicable industries should become fully aware of the current rules in California governing tip pooling.
OVEREXPOSED EMPLOYEES
By D. Gregory Valenza
Daily Journal
2009-04-17
First, there were blogs. Then came Web 2.0 or "social networking." Once reserved for teenagers and geeks, websites like Facebook, Myspace, LinkedIn, Twitter, Yelp, and others have gained mainstream popularity. Among other things, these websites permit users to create personal areas where they keep online diaries; share intimate or mundane details about their lives; post pictures and to public bulletin boards; and "link" to online groups and friends. Businesses, celebrities, and ordinary citizens alike openly invite the public to "friend" or "follow" them and interact online.
INVESTIGATIONS OF GOVERNMENT EMPLOYEES RULED CONSTITUTIONAL
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-04-08
Like all employers, public-sector employers (such as government agencies) conduct internal investigations concerning a variety of issues. Some investigations are occasioned by claims of unfair treatment. Others result from possible unlawful activity in the workplace.
CONDUCTING BACKGROUND CHECKS IN CALIFORNIA
By Jennifer Brown Shaw and Becki D. Graham
SHRM Legal Report
2009-04-01
Hiring employees can be costly. Between the expenses of advertising, employment agencies and lost productivity associated with recruiting, it pays to select employees as efficiently as possible.
CHINDARAH V. PICK UP STIX, INC.: A BONA FIDE VICTORY FOR EMPLOYERS
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-03-24
California law prohibits employees from waiving or releasing their rights to minimum wages, overtime, and other minimum protections. For example, Labor Code section 1194 prohibits agreements by employees to work for less than minimum wage or without receiving overtime. Section 206.5 prohibits releases of wages concededly due. Section 2804 prohibits an employee from waiving the right to indemnification under Labor Code section 2802 for expenses incurred in the scope of employment. Section 5001 bars the release of an employee's claim for workers' compensation benefits unless approved by the Workers' Compensation Appeals Board.
WHEN LAYING OFF WORKERS, BEING GENTLE COULD MAKE THE DIFFERENCE
By D. Gregory Valenza
Daily Journal
2009-03-13
The legal press is full of bad news regarding the economy's effect on law firms. Hardly a day goes by without news of layoffs and even the dissolution of firms considered to be robust just months ago. The same media have noted no shortage of employment law work, which is true for us and colleagues with whom I have spoken.
THE AMERICAN RECOVERY AND REINVESTMENT ACT: WHAT EMPLOYERS NEED TO KNOW
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-03-12
On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act ("ARRA") into law. The stated purpose of the ARRA, often referred to simply as the "stimulus bill," is to improve our economy by, among other things, creating and saving jobs, improving affordable health care, providing tax relief, and improving the nation's infrastructure.
PRESIDENT OBAMA ENCOURAGES UNION ACTIVITY WITH EXECUTIVE ORDERS
By Jennifer Brown Shaw and Matthew J. Norfleeet
The Daily Recorder
2009-02-26
Union activity will likely dramatically increase during the current presidential term as a result of President Obama's recent executive orders. Not surprisingly, Obama received organized labor's endorsement during his campaign. Many describe him as the most vocally pro-union president since the New Deal. Shortly after inauguration, while signing three union-friendly executive orders, he announced, "I do not view the labor movement as part of the problem, to me it's part of the solution" Recently, he signed a fourth and related order.
LILLY LEDBETTER'S GOOD YEAR
By D. Gregory Valenza
Daily Journal
2009-02-13
The Lilly Ledbetter Fair Pay Act of 2009 amends the statutes of limitations applicable to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990 and the Rehabilitation Act of 1973. The law overturns the U.S. Supreme Court's 5-4 decision in Ledbetter v. The Goodyear Tire and Rubber Company, 550 U.S. 618 (2007). One of the first bills passed by the new Congress, President Obama signed it into law on Jan. 29.
MINIMIZING THE RISKS ASSOCIATED WITH LAYOFFS
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2009-02-12
Call it a recession or a depression; the consequences of this economy are the same for an increasing number of employers in the country—employee layoffs. Not coincidentally, employment lawyers experienced a surge of business at the end of 2008 from employers seeking advice on how to reduce the potential liability associated with reductions in force.
COST-SAVING MEASURES TO PRESERVE BUSINESSES AND JOBS: ALTERNATIVE WORKWEEKS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-01-29
Our economic recession has wrought hiring freezes, lay offs, business closures, etc. Both employers and employees are suffering. To keep afloat and perhaps avoid layoffs, employers are seeking creative ways to save money and conduct business more efficiently. One option is to reduce employer liability for payment of overtime. The adoption of an "alternative workweek" may be a means to accomplish this goal.
A FREE COUNTRY?
By D. Gregory Valenza
Daily Journal
2009-01-16
The inauguration of President-elect Barack Obama is just a few days away. Congress will assemble with solid Democratic majorities in each house. The new administration doubtless will breathe new life into bills that have languished in Congress during the past eight years.
NEW YEAR’S RESOLUTION: REVIEW THE JOB APPLICATION
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-01-15
This column frequently reminds employers to regularly review personnel practices to stay up-to-date, even longstanding ones. Because this is the beginning of a new year, it is fitting to discuss the beginning of the employer-employee relationship: job applications.
STATUTE OF LIMITATIONS FOR FEHA CLAIMS ON THE VERGE OF EXTINCTION
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-12-30
The California Fair Employment and Housing Act (FEHA) requires an employee to file an administrative complaint of discrimination, harassment, or retaliation within one year of the alleged unlawful employment practice. This statute of limitations provides employees with time to assert their claims. It also protects employers from stale claims, faded memories, and unavailable witnesses, and makes it easier for the administrative agency involved (the Equal Employment Opportunity Commission (EEOC) or the state Department of Fair Employment and Housing (DFEH)) to investigate, obtain documents, find witnesses, etc.
WILL CONGRESS BAN SEXUAL ORIENTATION DISCRIMINATION?
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2008-12-18
The passage of Proposition 8, overturning the California Supreme Court's decision authorizing marriage between same-sex couples, has brought visibility and controversy to California. The debate over the measure has dominated political and private discussions with an intensity that suggests civil rights laws will continue to be hotly debated – including those related to employment and the workplace.
DISABILITY DISCRIMINATION AND QUALIFICATION STANDARDS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-12-02
The federal Americans with Disabilities Act protects individuals with disabilities from discrimination. The Fair Employment and Housing Act is the California anti-discrimination law that provides similar protections. Both the ADA and FEHA require employers to make reasonable accommodations when qualified employees can perform the essential functions, but not necessarily all other requirements, of a job.
GOLDEN STATE OF MIND
By D. Gregory Valenza
The Daily Journal
2008-11-28
Employers based in other states may send their workers to California on sales or service calls, for long-term consulting assignments or for brief meetings. Employers regularly employing workers in California learn - sometimes the hard way - about the many unique employment laws and regulations they must follow, particularly in the "wage and hour" arena. But then there are businesses whose workers enter California only sporadically or for short periods of time. Can it be that an employee who lives and works in Arizona is covered by Arizona law on Monday and California law on Tuesday just because she takes a business trip? Hint: If the answer were "no," this article would be much less interesting.
RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-11-20
Lawsuits claiming harassment, discrimination or retaliation are expensive to defend. In an effort to resolve equal employment opportunity (EEO) issues before they become legal liabilities, most employers have developed and implemented procedures for dealing with internal EEO complaints. These internal procedures often involve a multi-step process used to evaluate whether the conduct at issue violates the organization's policy and identify solutions to prevent inappropriate conduct from continuing.
NEW LAW AIMS TO ENCOURAGE COMPLIANCE WITH DISABLED ACCESS RULES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-11-06
Last year we wrote about laws related to the access rights of persons with disabilities to public establishments. We discussed data suggesting that while public access laws increase the quality of life for persons with disabilities, these laws have also led to vexatious litigation against property owners who are not given the opportunity to remedy compliance issues before incurring substantial penalties. In an effort to encourage a proactive approach to dealing with access issues, the Governor recently signed Assembly Bill 1608 ("SB 1608"). While SB 1608 does not provide for the "safe harbor" or "cure period" property many business advocates have sought, the new law will likely reduce owners' liability for access issues through preventive measures.
NEW LAWS AND OTHER DEVELOPMENTS FOR CALIFORNIA EMPLOYERS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-10-22
Once again, Governor Schwarzenegger vetoed a majority of the workplace-related bills passed by the Legislature. Only a handful of new laws will directly affect employers. We summarize those laws, various bills that may reappear in the next legislative session, and a few additional developments below.
ALTERNATIVE POSITIONS AS A REASONABLE ACCOMMODATION: WHAT IS REQUIRED?
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-10-08
The federal Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA) both require employers to reasonably accommodate the known physical or mental limitations of an otherwise qualified employee or applicant with a disability. However, an employer's duty to provide reasonable accommodation under the FEHA is broader than under the ADA, even considering the recent amendments to the ADA which become effective on January 1, 2009. (We wrote about the amendments in our September 24, 2008, column.)
THE ADA AMENDMENTS ACT
By Jennifer Brown Shaw and D. Gregory Valenza
The Daily Recorder
2008-09-24
President Bush is expected to sign what is now called the ADA Amendments Act of 2008 ("ADAAA"). Formerly known as the ADA Restoration Act, Congress passed the ADAAA earlier this month. The ADAAA is intended to revise aspects of the original ADA, which President George H.W. Bush approved in 1990.
FLESHING OUT THE ADA
By D. Gregory Valenza
The Daily Journal
2008-09-16
Americans with Disabilities Act's employment provisions took effect in July 1992. The courts, employers and their lawyers, are still trying to get it right. The law is different from other anti-discrimination laws. Most employment laws prohibiting discrimination command equal treatment. The ADA, though, requires something more: equal treatment via "reasonable accommodation." The form and extent of the accommodation obligation has vexed everyone who works with the ADA, particularly those who do not regularly interpret or apply the statute. In California, the task is made more difficult by the Fair Employment and Housing Act's more inclusive definition of "disability."
BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-09-10
Employers increasingly are relying on credit and background checks in the hiring process. Employers want assurances that their employees are honest and trustworthy. Internal investigations of certain misconduct allegations are now required by anti-discrimination laws and others, such as Sarbanes-Oxley. At the same time, surveys show resume fraud is rampant. Job references often won't provide information about former employees other than "name, rank and serial number." With a bad economy, huge student loan liabilities, and the mortgage crisis, potential employees may appear to be untrustworthy with credit.
EDWARDS V. ARTHUR ANDERSEN: NON-COMPETE AGREEMENTS AND GENERAL RELEASES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-08-26
California law is tough on agreements that restrain an individual from engaging in his or her profession, trade or business. The only statutory exceptions to this strict rule are non-competition agreements associated with certain business sales transactions and dissolution of partnerships. There are common law restrictions as well. For example, employees usually cannot directly compete with a current employer where doing so would constitute a conflict of interest. Additionally, employees may be restricted from certain post-termination activities to protect the former employer's trade secrets. Employers also may use financial disincentives to dissuade employees from leaving, such as requiring repayment of training costs, and bonuses that require employment on a certain date.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 22, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-22
New on our Blog this week:
- Can't Currently Count on Kin Care Case
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 15, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-15
New on our Blog this week:
- Court of Appeal: Inadequate Notice of Disability But Sufficient Notice for CFRA Leave
- California Paid Sick Leave Bill - Status
MEAL AND REST PERIODS: BEST PRACTICES IN LIGHT OF BRINKER
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-08-12
The California Court of Appeal recently rendered an opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) which addresses several heavily litigated meal/rest period issues. While employers obviously welcomed the clarification provided by the ruling, lively celebration may be a bit premature. First, the case may find its way to the California Supreme Court. If the Supreme Court grants review as many anticipate, the law pre-Brinker will apply until the high Court rules. Additionally, the Legislature could decide to take a stand on Brinker as part of the continued budget stalemate. In that case, we may end up with compromise legislation and an unanticipated new law.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 8, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-08
New on our Blog this week:
- California Supreme Court Says "no" to "Limited" Non-Compete Agreements, but "yes" to Broad Releases
- California Supreme Court Takes Up Harvey v. Sybase
- Narrowcast Supreme Court Opinion Contains Hidden Gems
- New California Law: Limit on Wage and Hour Releases
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 1, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-01
New on our Blog this week:
- DLSE Memorandum to Staff: Follow Brinker
- New California Statute: SB 940 - Temporary Services Employees
- EEOC Issues New Guidance on Discrimination Based on Religion
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-07-31
The California Supreme Court decided several significant employment law cases since our last summary in September 2007. The Court's opinions address a number of topics, including expense reimbursement, employee privacy, government employee due process rights, leaves of absence, drug testing, and retaliation. The Court also accepted review of several decisions that will affect employment law in the months to come. We summarize below the recently decided and pending cases.
MEAL AND BREAK CLASS ACTIONS: ON THE “BRINKER” OF EXTINCTION?
By D. Gregory Valenza
The Daily Journal
2008-07-25
The Court of Appeal's opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) , ___ DJAR ____ (Jul. 22, 2008), addresses several heavily litigated issues regarding meal and rest period claims. If the decision withstands an anticipated petition for review to the Supreme Court, the court's opinion will sharply curtail class action litigation over alleged meal and rest period violations.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 25, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-25
New on our Blog this week:
- Brinker Article
- Brinker: The Watershed Meal Period Decision Comes Down
- Federal Minimum Wage Going Up to $6.55 per hour 7/24/08
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 18, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-18
New on our Blog this week:
- Ninth Circuit on Damages Available under FMLA
- Pre-Certification Motion to Strike Class Action Upheld
UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw
The Daily Recorder
2008-07-18
The United States Supreme Court decided several significant employment law cases during the 2007 Term. The Court's opinions ranged from the validity of administrative charges filed with the Equal Employment Opportunity Commission, to the scope of the Age Discrimination in Employment Act, as well as to anti-retaliation provisions. There currently are four cases on the docket for next Term, each of which is summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2007).
'BABY' WARN ACT MIGHT BE GROWING UP
By D. Gregory Valenza
The Daily Journal
2008-07-03
The economic downturn results in increased layoffs and business closings. Employers must consider whether they are required to give legally required advance notice of these events. Federal law includes the Worker Adjustment and Retraining Notification Act, known as WARN. However, California employers may be covered by an analogous state law, informally known as the "baby" WARN Act. Labor Code Sections 1400-1408. Both laws require employers to give advance "notice" to affected employees and certain government entities of future employment losses. These laws' purpose is to give workers time to seek new employment, and to facilitate the government's programs for the unemployed to absorb a large influx of unemployed workers.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 3, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-03
New on our Blog this week:
- Charter Counties Not Covered by Labor Code Overtime and Meal/Rest Period Provisions
- Offers of Compromise
- Court of Appeal: Deduction of Training Costs from Final Pay Illegal
SEVERAL NEW “RETALIATION” DECISIONS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-07-02
The courts have issued a significant number of retaliation decisions in the past several weeks. The U.S. Supreme Court held in two cases that employees are protected from adverse employment actions for complaining about civil rights violations, even when the underlying statutes did not contain anti-retaliation provisions. Two panels of the California Court of Appeal went in different directions regarding what constitutes "retaliation."
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JUNE 27, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-06-27
New on our Blog this week:
- New I-9 Form
- IRS Standard Mileage Rate GOING UP
- U.S. Supreme Court Holds Plan Administrator Had Conflict of Interest
- U.S. Supreme Court Decides State Pension Formula Does Not Violate ADEA
- Ninth Circuit: No-Match Letters Not Convincing Evidence of Immigration Status
- Ninth Circuit: Employee's Burden to Show Disability Under ADA
- Court of Appeal to Employers: No Coverage for You if Claims Reported Untimely
- Ninth Circuit Invalidates Certain Pre-Employment Inquiries
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JUNE 20, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-06-20
New on our Blog this week:
- U.S. Supreme Court on Employer's Burden of Proof in Age Discrimination Cases
- Happy Second Anniversary to Us!
- Ninth Circuit: No Right to Search Text Messages Stored by Third Party
- Supreme Court Strikes Down California AB 1889 - Union "Neutrality"
- Court of Appeal Permits Claim of "Preemptive" Retaliation
- Court of Appeal Rules on Holiday Pay, Regular Rate, and Overtime
- OSHA: Employers Must Pay for Most Personal Protective Equipment
- Local Living Wage Ordinance Not Local
THE DIFFERENCES BETWEEN STATE AND FEDERAL ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-06-18
President Bush recently signed into law the Genetic Information Nondiscrimination Act ("GINA"). The new law, when it takes effect at the end of 2009, makes it unlawful for employers to discriminate against employees based on genetic characteristics. Yet, California's Fair Employment and Housing Act ("FEHA") already prohibits discrimination on the basis of genetic information. In fact, the FEHA has traditionally provided broader protections against discrimination than federal law. This creates confusion for employers who do not understand the many distinctions between the federal and state statutes. While this article does not address all of those distinctions, below are some of the key differences.
EMPLOYMENT CONTRACTS – GETTING IT RIGHT
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-06-04
All employment relationships are contractual. The essence of the relationship is the employee's promise to work in exchange for the employer's promise to pay wages. However, employers and employees enter into more formal employment contracts to define the employment relationship in more precise terms.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 30, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-30
New on our Blog this week:
- Courts' First Kin Care Ruling
- U.S. Supreme Court Issues Two Retaliation Decisions
- GINA's Little Secret
- Court of Appeal: No Disability and No Retaliation
A KIN CARE CONUNDRUM
By D. Gregory Valenza
The Daily Journal
2008-05-30
Many employers provide some form of paid sick leave to their employees. In fact, employers are required to do so for employees working in San Francisco. Don't be jealous. The Legislature is considering a bill that would mandate paid sick leave statewide. See Assembly Bill 2716.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 23, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-23
New on our Blog this week:
- Meet GINA
- Update - Cal. Supreme Court Review Granted
WORKPLACE INVESTIGATIONS: WHOM TO CALL
By Jennifer Brown Shaw, Matthew J. Norfleet and Shane K. Anderies
The Daily Recorder
2008-05-22
As the number of employment laws has grown, so has the number of opportunities for employees to complain about violations of those laws. At the same time, courts have placed on employers increasing responsibility to conduct immediate, good faith, and complete investigations, particularly in the area of discrimination, harassment, and retaliation.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 16, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-16
New on our Blog this week:
- Proposed SB 1583 Imposes Liability for Bad Independent Contractor Advice
- Court of Appeal Examines "Same Actor" Inference
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 9, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-09
New on our Blog this week:
- Contractual Attorneys' Fees Provision Bites Employer
- Newspaper Delivery Drivers Are Employees for Workers' Comp. Purposes
THE CALIFORNIA SUPREME COURT ISSUES KEY CFRA DECISION
By Jennifer Brown Shaw
The Daily Recorder
2008-05-08
The federal Family and Medical Leave Act (FMLA) and California's equivalent, the California Family Rights Act (CFRA), present various challenges to employers. The CFRA, like the FMLA, allows eligible employers up to 12 weeks of unpaid leave for, among other things, the employee's own "serious health condition that makes the employee unable to perform the functions of the position of that employee." Earlier this year, the U.S. Department of Labor (DOL) issued proposed revisions to the FMLA regulations that unfortunately do little to simplify the administration of leaves of absence. Now the California Supreme Court has further complicated the situation. While awaiting the final FMLA regulations, California employers should carefully review the Court's decision in Lonicki v. Sutter Health Central.
MUCH ADO ABOUT LUNCHING
By D. Gregory Valenza
The Daily Journal
2008-05-02
Effective Jan. 1, 2000, Assembly Bill 60 implemented a number of changes to California's wage and hour laws. Many employers and their lawyers focused on the statutory restoration of daily overtime pay, which the Industrial Welfare Commission previously had abolished in several of its Wage Orders. As it turned out, though, AB 60's sleeper issue was the relatively small section of the law devoted to meal periods. AB 60 codified existing regulations mandating meal periods. However, the Legislature determined that employers were not following the rules because there were no financial consequences. So, AB 60 included a requirement that employers pay one hour's wages to employees who were not given a timely meal period in accordance with the law.
SUPREME COURT: EMPLOYERS NOT REQUIRED TO “ACCOMMODATE” EMPLOYEES’ MEDICAL MARIJUANA USE
By D. Gregory Valenza
California Labor & Employment Law Review
2008-05-01
The California Supreme Court's opinion in Ross v. RagingWire Telecomm, Inc. emerged from a collision among principles of constitutional, criminal, and employment law, as well as public policy. The Court decided, 5-2, that employers have no duty under the Fair Employment and Housing Act ("FEHA") to make "reasonable accommodation" for marijuana use permitted by California's Compassionate Use Act. The Court also unanimously ruled that the plaintiff could not maintain a common law action for wrongful termination in violation of public policy. Rather, the Court reaffirmed its watershed drug testing decision in Loder v. City of Glendale, holding "[u]nder California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions." The Court's opinion was based on an analysis of the relationship among the Compassionate Use Act, the FEHA, the California Constitution, and applicable provisions of federal law.
UNMASKING ILLEGAL ON-LINE ACTIVITY
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2008-04-28
Most employers now have some web presence, through their own internet sites and also as an internet portal for employees who use the internet at work. Used illegally to spread defamatory statements or publish trade secrets, the internet has the potential to do significant damage to a business. Employers need to consider two related subjects: how to respond if defamatory or privacy-protected information about the organization is released on-line; and how to manage their own internet resources to avoid liability.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF APRIL 18, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-04-18
New on our Blog this week:
- Court of Appeal: No Individual Liability for Wages or UCL
POLITICAL ACTIVITY AT WORK: WHAT ARE THE LIMITS?
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-04-09
Whether the subject matter is a large sporting event or upcoming presidential election, employees naturally bring their opinions, passions, loyalties and arguments into the workplace. As the November 2008 presidential election approaches, the candidates, the political parties, and the various media will continue to stir thought and debate among the nation's voters, most of whom report to a job site.
STARBUCKS IN HOT WATER OVER TIPS
By D. Gregory Valenza
The Daily Journal
2008-04-04
Here is something to ponder as you enjoy your next beverage from Starbucks: How many venti, half-caf-half-soy-no-foam-latte-whips does it take to generate $87 million in tips over a seven-year period? It might take more than one refill for you to do that math. But wait, there's more. Consider that the recent and widely reported $100 million-plus award to about 100,000 Starbucks "baristas" compensates them only for a portion of the total tips customers paid (plus interest). That is, just a fraction of what must have been hundreds of millions in total tips wrongfully distributed to shift supervisors. The award, one of the largest reported employment law verdicts, is striking not only because of its sheer size, but also because it is based on optional "gratuities" that are paid by customers rather than the employer.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MARCH 28, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-03-28
New on our Blog this week:
- Ninth Circuit Holds Applicant Drug Testing Policy Violates Fourth Amendment
- Resident Employees Paid Only For Time Worked
- Cease and Desist Letter Gets SLAPP Protection
- California Court of Appeal Upholds Rare Attorneys Fees Award Against Plaintiff
A NEW RULING ON “REVERSE DISCRIMINATION”
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-03-26
The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on a variety of protected criteria, including race. The law does not distinguish between races. Everyone is equally entitled to the law's protection. At the same time, claims of race discrimination by white males are less common than by persons of other races. These claims are sometimes called "reverse discrimination" complaints. The California Court of Appeal recently examined one such case in Hicks v. KNTV Television, Inc. The decision should remind employers and employees that every employee is entitled to civil rights protections, not just those who belong to "minority" groups.
COMMISSION AND BONUS PLANS: IS A DEAL A DEAL?
By D. Gregory Valenza
The Daily Journal
2008-03-21
Commissions and bonuses are forms of "wages" in California. The Labor Code imposes on employers a number of obligations regarding payment of wages. For example, wages must be paid within a specified time period after they are earned. Employees who quit or are terminated typically must be paid their final wages on their last day of employment or penalties may accrue. Wages must be included in the "regular rate" of pay, which is used to calculate overtime. They also must be detailed on the "wage statement" that is furnished employees with every paycheck.
NO INDIVIDUAL LIABILITY FOR RETALIATION UNDER THE FEHA
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2008-03-12
The California Supreme Court continued a trend on Monday, March 3, 2008, when it held in Jones v. The Lodge at Torrey Pines that supervisors cannot be held individually liable for retaliation under California's Fair Employment and Housing Act (FEHA). The Court has consistently shielded individual supervisors from various other forms of employment related claims. For example, the Supreme Court ruled in Reynolds v. Bement, a 2005decision, that individual corporate agents, including officers, directors, and shareholders, could not be personally liable for an employer's failure to pay wages to its employees. Similarly, in 2000, the Court held in Carrisales v. Department of Corrections that individual, non-supervisory employees could not be held liable for harassment.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MARCH 7, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-03-07
New on our Blog this week:
- Court of Appeal: $44 recovery; $500 in fees
- California Supreme Court: No Individual Liability for Retaliation Under FEHA
- U.S. Supreme Court: A Charge by Any Other Name... Is Still a Charge
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 29, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-02-29
New on our Blog this week:
- U.S. Supreme Court Punts on "Me Too" Evidence in Discrimination Cases
- U.S. Supreme Court: ERISA Actions Against Fiduciaries
- U.S. Supremes: Arbitrate Claims Under Labor Commissioner's Jurisdiction
- NLRA Preempts California Wrongful Termination Claim
NEW PROPOSED REGULATIONS FOR THE FMLA
By Jennifer Brown Shaw
The Daily Recorder
2008-02-26
The federal Family and Medical Leave Act of 1993 has been around for about 15 years. The law provides eligible employees with up to 12 weeks of job-protected leave. The reasons for leave include their own or a covered relation's "serious health condition," or to care for a newborn or adopted child.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 22, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-02-22
New on our Blog this week:
- U.S. Supreme Court: ERISA Actions Against Fiduciaries
- U.S. Supremes: Arbitrate Claims Under Labor Commissioner's Jurisdiction
- NLRA Preempts California Wrongful Termination Claim
ONE TOKE OVER THE LINE
By D. Gregory Valenza
The Daily Journal
2008-02-15
The California electorate approved Proposition 215, the Compassionate Use Act, in 1996. The initiative expressly protects certain users of marijuana for medical reasons from prosecution under two specific criminal laws. The initiative did not address a number of issues, however, including what happens when marijuana metabolites are revealed by a pre-employment drug test. Twelve years passed before the California Supreme Court weighed in on that question. In Ross v. RagingWire Telecomm. Inc., 2008 DJDAR 1217 (Cal. Jan. 24, 2008), the court held that Proposition 215 provides no employment law protection to medical-marijuana users. As a result, unless there is legislative action by the electorate or the Legislature, disability-discrimination and drug-testing laws are not affected by Proposition 215.
WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 15, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-02-15
New on our Blog this week:
- U.S. DOL Proposes Revised FMLA Regulations
- Court of Appeal Holds "IT" Employee Is... Exempt
EXPANSION OF FMLA LEAVE FOR FAMILIES OF SERVICE MEMBERS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-02-13
President Bush has signed the first amendment of the FMLA since Congress passed the original law in 1993. As initially drafted, the FMLA requires employers of more than 50 employees to approve unpaid leave for employees. The terms of FMLA leave include up to 12 weeks of time off for eligible employees to care for themselves or a family member's serious health condition.
LEDBETTER V. GOODYEAR: WHAT DOES IT STAND FOR AND WILL IT STAND?
By Carolyn G. Burnette and D. Gregory Valenza
Employment & Labor Relations Law - American Bar Association
2008-02-01
The United States Supreme Court's opinion in Ledbetter v. The Goodyear Tire & Rubber Company, Inc. clarified when the limitations period for filing administrative charges with the Equal Employment Opportunity Commission ("EEOC") regarding unequal pay claims begins to run. The Court held that where a discriminatory pay decision occurs, each subsequent paycheck does not constitute a new or continuing violation such that a claim is timely filed from the date any one of such payments is made. Rather, the initial discriminatory pay decision starts the clock ticking.
FREE SPEECH AND THE PRIVATE SECTOR WORKPLACE
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-01-30
The right to freedom of speech is at the bedrock of our nation's birth and its continued vitality. Like many of our rights as citizens of the United States, free speech is not absolute. Lawyers and courts wrestle with its limits regularly. The right to free speech often conflicts with other rights, such as the right to own private property, to be free from speech that is closely related to unlawful conduct, and others.
SHOULD PAY CARDS BE TREATED THE SAME AS PAYCHECKS?
By D. Gregory Valenza
The Daily Journal
2008-01-18
California's wage and hour laws are more detailed than any other state's. To facilitate education about the myriad requirements, the Legislature has included at least one substantial penalty for each failure to abide. So, employers must be cautious before deviating from the letter of the law.
EMPLOYEE TERMINATIONS: STEPS TO REDUCE LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
2008-01-15
Every supervisor dreads having to tell an employee, "You're fired." In fact, many employers secretly hope problem employees will "get the message" before these words have to be spoken. Employees naturally dread the news that their services are no longer required. In fact, there are studies suggesting that being fired is among the most traumatic events to occur in a lifetime.
PREVENTING UNION ACTIVITIES VIA COMPANY EMAIL GETS EASIER
By Jennifer Brown Shaw
The Daily Recorder
2008-01-02
Email communication has become common at the workplace during the last 10 years or so. It is a fast, cheap, discrete, and efficient way of distributing information about work-related matters. But these same characteristics make email an ideal method for employees to communicate among themselves regarding non-work matters, including union organizing activities.
UPDATED EMPLOYEE POLICIES FOR 2008
By Jennifer Brown Shaw
The Daily Recorder
2007-12-18
This time of year, everyone has a "to-do" list that is too long. Employers are no exception. In addition to replacing outdated workplace posters and pamphlets, implementing the new I-9 form, and ensuring employees receive notice of their right to claim the Earned Income Tax Credit, employers should tune up their handbooks for the new year.
DISABILITY AS A JUSTIFICATION FOR EMPLOYEES' MISCONDUCT?
By D. Gregory Valenza
The Daily Journal
2007-12-07
Anti-discrimination laws that prohibit disability discrimination - such as the Americans With Disabilities Act - are among the most difficult employment laws for employers to administer and for employment lawyers to litigate. The law prohibiting disability discrimination differs from most other anti-discrimination laws. The most obvious distinction is that treating employees consistently will defeat most discrimination claims based on race, sex and other protected criteria.
NEW LAWS FOR CALIFORNIA EMPLOYERS IN 2008
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2007-12-06
With the New Year comes new legislation. This year, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a significant number of bills that would have significantly impacted employers, and signed a few with which employers will need to comply come January. In addition to the legislation the Governor signed this year, a few laws from past years become effective in 2008. The key laws are summarized below.
CALIFORNIA’S NEW LEAVE FOR MILITARY SPOUSES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2007-11-20
On October 9, 2007, the Governor signed a bill allowing spouses of military personnel to take unpaid time off during the other spouse's leave from deployment. California Military and Veterans Code section 395.10 was passed as "emergency legislation" and went into effect immediately. The stated intent of the new law is to "serve the families of those troops currently serving in military conflicts in Iraq and Afghanistan, and to assure that these families are able to spend time together during the qualified [spouse's] leave from deployment."
THE BREACH OF THE DUTY OF LOYALTY – WHAT EMPLOYERS CAN DO ABOUT IT
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2007-11-06
A recent report called The Walker Loyalty Report for Loyalty in the Workplace, released in September 2007, noted more than 35% of employees are likely to leave an employer within the first two years of employment. Yet, employers' investments in training, recruiting, and compensation continue to rise. Turnover is even more damaging when employees take clients, employees and trade secrets with them. Do employers have the legal right to expect their employees' loyalty? And what can an employer do to protect itself from competitive conduct by employees during employment?
USING THE STATUTORY “OFFER TO COMPROMISE” TO OBTAIN FAVORABLE SETTLEMENTS
By D. Gregory Valenza
The Daily Journal
2007-11-02
Like all civil litigation, most employment law cases are resolved before trial. However, the plaintiff rarely just gives up.
EMPLOYEE ABUSE OF TECHNOLOGY THE EVER-CHANGING WORKPLACE CHALLENGE
By Carolyn G. Burnette
HR West
2007-11-01
Technology gone wild! Blogging, instant messages, text messages, e-mail, digital camera phones ... the list just keeps growing. With more employees using electronic communications devices, employers are constantly bombarded with new legal risks and efficiency challenges in their workplaces. Here are some tips on how to protect your organization from legal exposure and reduce the drain on resources.
REST BREAK AND MEAL PERIOD CLAIMS AFTER MURPHY V. KENNETH COLE PRODUCTIONS
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
2007-10-23
The California Supreme Court decided earlier this year, in Murphy v. Kenneth Cole Productions, that the one-hour premium employees receive for violation of meal break or rest period laws is a wage and not a penalty. Because the statute of limitations for unpaid wages is three years (or four years under an unfair competition theory), and the statute of limitations for penalties is only one year, Murphy means that multi-million class actions against state-wide employers are potentially three times more lucrative for plaintiffs and their lawyers. As a result, the plaintiffs' bar continues enthusiastically to file class actions alleging violations of the meal and break laws.
OFFICE ROMANCES AND THE RISK OF LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
2007-10-09
A recent study revealed that at least seventy percent of employees will date someone at work at least once during their careers. In fact, nearly one-half of all married couples met each other in the workplace. In light of these statistics, employers cannot ignore the various issues that may arise when employees engage in romantic relationships with people they meet at work.
TITLE III OF THE ADA: COMPLIANCE AND LITIGATION STRATEGIES
By Jennifer Brown Shaw
The Daily Recorder
2007-09-27
It has been 17 years since the first President Bush signed into law the Americans with Disabilities Act ("ADA"). Congress's intent in passing the ADA was to eliminate discrimination against millions of Americans with disabilities by establishing clear, consistent, and enforceable standards. The act was declared to be "the most sweeping piece of civil rights legislation possible in the history of our country, but certainly since the Civil War era."
UNDERMINING ARBITRATION
By D. Gregory Valenza
The Daily Journal
2007-09-21
The California Supreme Court's Aug. 30 decision in Gentry v. Superior Court tightens the courts' reins on "pre-dispute" agreements to arbitrate employment law claims. A pre-dispute arbitration agreement, by definition, is one to which the parties agree before any dispute between them has arisen.
CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
2007-09-05
The California Supreme Court decided several significant employment law cases since our last summary in August 2006. The Court's opinions address a number of topics, from employment at will to class actions. The Court also has accepted review of several decisions that could be blockbusters in the months to come. We summarize below the recently decided cases and those that remain pending.
IMMIGRATION ENFORCEMENT: MISMATCH/NO-MATCH LETTERS AND THE NEW SAFE HARBOR
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
2007-08-28
Although Congress came close to passing an immigration reform bill this term, there has been no substantive change to the immigration laws. Yet, the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement division (ICE) have increased enforcement of the existing law's employment provisions. Thus, the former agency, the Immigration and Naturalization Service (INS), filed 25 complaints against employers for employing undocumented aliens in 2002, which was the INS's last full year of existence. ICE filed 716 complaints in 2006. Some employers faced jail time for these criminal violations, including managers of employment services and the owner of a chain of donut shop franchises.
EMPLOYER-SPONSORED WELLNESS PROGRAMS AND EMPLOYMENT LAW
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
2007-08-14
A corporate "wellness" program focuses on promoting employees' good health rather than curing poor health. It can take many forms, including subsidized health club memberships or smoking cessation programs, exercise groups organized by the employer, bonuses promoting healthier lifestyles, and flu shot programs. Some employers also are offering lower health care premium contribution rates to employees who lead healthier lifestyles. Employers who have or are considering introducing "wellness" programs to their employees should consider some of the obstacles to implementing such programs.
WAGE AND HOUR LAWS REDUX
By D. Gregory Valenza
The Daily Journal
2007-08-10
One thing is clear about California wage and hour laws: The rules governing law firms (and all businesses) in California are too numerous to be summarized in just one column. The first installment on this topic ran on July 27, 2007 and is available online at www.dailyjournal.com. In that piece, I discussed potential pitfalls, such as mis-classification of employees as independent contractors or "exempt" employees, minimum wage and overtime laws, independent contractor status, exemptions from overtime, payroll practices and deductions from paychecks. If those topics are not complex and confusing enough, there are many others applicable to California employees.
EMPLOYMENT LAWSUITS AGAINST INDIVIDUALS
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2007-07-31
Plaintiffs in employment law cases frequently name individual employees as defendants. Sometimes, they sue co-workers. More frequently, they name supervisors or managers, and even high-level executives up to the CEO.
AVOIDING WAGE-AND-HOUR RISKS
By D. Gregory Valenza
The Daily Journal
2007-07-27
When Shakespeare wrote in Henry IV, "Uneasy lies the head that wears a crown," he could have been describing law firm managing partners. Client development and satisfaction, billable hours, expense control, office leases, hiring and retaining associates and staff, fierce competition, oh, and the practice of law, are just a few of the challenges facing the lawyer who accepts the responsibility of running a law firm or office.
UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
2007-07-18
The United States Supreme Court decided several significant employment law cases during the 2006 Term. The Court's opinions address a number of topics, from the statute of limitations in cases alleging discriminatory pay practices, to the exempt status of home care aides under U.S. Department of Labor regulations. There presently are three important cases on the docket for next Term, summarized below. The Court may add more cases to the docket as the new Term approaches in October 2007).
FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2007-07-02
Last week's free speech ruling from the U.S. Supreme Court in the "Bong Hits 4 Jesus" case reminds us that employers, like educational institutions, have the right to regulate speech in the workplace. Private sector employers are unrestricted by the First Amendment, which applies only to government action. But there are legal restrictions applicable to private employers as well. One such restriction that is often misunderstood by employers is single-language policies. Usually they're English-only policies, but the same rules could apply to any employer's policy limiting the language employees may speak on the job.
ENFORCING NON-COMPETE AGREEMENTS IN CALIFORNIA AFTER ADVANCED BIONICS V. MEDTRONIC
By D. Gregory Valenza
Bender's California Labor & Employment Bulletin
2007-06-28
Multi-state employers face myriad and sometimes inconsistent laws affecting their employment relationships with workers. The enforceability of restrictive covenants, such as covenants not to compete and non-solicitation agreements, is a prime example of how state laws may vary.
INDEPENDENT CONTRACTORS: A DYING BREED?
By D. Gregory Valenza
San Francisco Daily Journal
2007-06-22
The employer-employee relationship is fraught with legal obligations: workers' compensation, complex wage and hour rules, paid and unpaid leaves of absence, payroll filings, sexual harassment training, benefits, etc. At times, employers may wish to engage temporary services without some of the entanglements associated with adding employees. Workers, too, may wish to avoid obligations such as tax withholding and exclusive employment relationships. For these and other reasons, employers and workers enter into "independent contractor" relationships.
WORKPLACE BULLYING AND THE FUTURE OF THE “EQUAL OPPORTUNITY HARASSER”
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
2007-06-19
Everyone is familiar with the "mean" boss: a chef who yells at the line cooks in the middle of a busy rush, a manager who becomes angry when a deadline is not met, and a boss who criticizes a poor performer in front of other workers. There historically has been a legal distinction between a "hostile working environment" and mere hostility at work. The courts have ruled that anti-discrimination laws are not a "civility code." Judicial opinions frequently say the law does not guarantee a utopian working environment, free from stress and conflict.
WORKPLACE PROTECTIONS FOR "CAREGIVERS"
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2007-06-06
It is no secret that employee demographics are rapidly changing. One statistic receiving both state and federal level attention is the increasing number of "caregivers" in the workplace.
CALIFORNIA EMPLOYMENT LAW PROTECTS EMPLOYEES UNAUTHORIZED TO WORK
By Jennifer Brown Shaw
The Daily Recorder
2007-05-23
As anyone paying attention to the news is aware, immigration is a politically charged and volatile issue. Employers as a result must sort through a morass of laws and regulations. There are specific laws and procedures applicable to the employment of non-citizens. It is illegal to employ and retain aliens who are unauthorized to work.
EMPLOYMENT INVESTIGATION ADVICE FROM THE GREAT DETECTIVE NOVELS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2007-05-08
The development of employment law has given rise to a type of detective that Raymond Chandler probably did not anticipate: the workplace investigator.
EMPLOYERS MUST COMPLY WITH STATE LAWS ON MEAL BREAKS, REST PERIODS
By D. Gregory Valenza
San Francisco Daily Journal
2007-05-04
California employers must furnish employees with both rest periods, which are paid, and meal periods, which are not paid. These requirements first appeared in the Industrial Welfare Commission's Wage Orders in 1916. But in 2000, the Legislature imposed on employers significant financial consequences for failure to comply with rest and meal period laws.
WELL-INTENTIONED PRE-EMPLOYMENT INQUIRIES MAY RESULT IN ILLEGAL DISCRIMINATION
By Carolyn G. Burnette
Journal of Corporate Recruiting Leadership
2007-05-01
The basic premise of federal anti-discrimination laws is simple to articulate:
to avoid liability, employers must not make any employment decisions that are based on illegal criteria such as race, sex, age, disability or religion. It is long recognized that a conscientious employer should make considered decisions that are based on legitimate business concerns. This basic rule also applies to pre-employment decisions regarding job applicants.
THE EVOLUTION OF CALIFORNIA LABOR CODE SECTION 132A
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
2007-04-25
The California Constitution mandates a form of workers' compensation outside of the common law remedies available in civil lawsuits. The Legislature has implemented this public policy so the workers' compensation system is the preferred means to remedy employees' work-related injuries.
POTENTIAL LIABILITY FOR EMPLOYER-SPONSORED SOCIAL EVENTS
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2007-04-11
In general, an employer may be liable for employee conduct at a social event (both negligent and intentional) whenever such conduct is "within the course and scope of employment."
ALTERNATIVE WORKWEEKS
By D. Gregory Valenza and Matthew J. Norfleet
San Francisco Daily Journal
2007-04-06
The eight-hour workday is a founding principle of organized labor in the United States. The famous Haymarket Square riots in Chicago in 1886 resulted in the deaths of seven police officers when one of the attendees threw a bomb at the advancing riot squad. Although there was no evidence that union leaders threw the bomb or even knew of its existence, they were executed for inciting the riot by holding a rally for an eight-hour day...
"EXEMPT" STATUS UNDER CALIFORNIA LAW: AVOID THE PITFALLS"
By Jennifer Brown Shaw
The Daily Recorder
2007-03-28
In the past several years, California employers have struggled to understand which of their employees may be properly classified as "exempt" under California law. Those employees are "exempt" from minimum wage and overtime (and other compensation, such as reporting time and call back pay), and required to take rest breaks and meal periods. Part of the confusion stems from the fact that the requirements for exempt status under the federal Fair Labor Standards Act (FLSA) are different in many ways from the California requirements. While these differences are not new, the recent flood of class action litigation regarding which employees are properly due overtime necessarily has generated keen interest in compliance.
A NEW LOOK AT PAID LEAVE UNDER THE FAMILY AND MEDICAL LEAVE ACT
By Jennifer Brown Shaw
The Daily Recorder
2007-03-14
In a nutshell, the FMLA provides up to 12 weeks of job-protected leave to eligible employees. Eligible employees are those who have been employed for at least a year, have 1250 hours of service with the employer, and are employed at a worksite where 50 or more employees work within a 75-mile radius. The California Family Rights Act ("CFRA") provides similar leave. In general, the laws are considered parallel. But there are significant exceptions, particularly with respect to the treatment of leave due to pregnancy disability.
A CHECKLIST FOR PREVENTING HUMAN RESOURCES PROBLEMS
By Jennifer Brown Shaw
The Daily Recorder
2007-02-28
Management concerned with employment law liability should be focused on prevention: preventing lawsuits, preventing employee morale problems, and preventing the day-to-day hassles personnel issues can create. The road to success in this area is not paved with good intentions, however. Employers must understand basic human resources principles to avoid the employment law pitfalls that await.
MILITARY PERSONNEL HAVE JOB PROTECTION RIGHTS WHEN CALLED TO DUTY
By Jennifer Brown Shaw
The Daily Recorder
2007-02-13
With the still unresolved political question of whether to "escalate" or "withdraw" from the Iraq war, America's service men and women continue to be called away from their civil jobs to assist with the war effort. At least one source reports that, since September 11, 2001, approximately 550,000 reservists and members of the National Guard have been called to active duty. Of those, 475,000 have returned to the civilian work force.
EFFECTIVE EMPLOYEE TRAINING PROGRAMS: MONEY IN THE BANK
By Jennifer Brown Shaw
The Daily Recorder
2007-01-30
What can employers do to reduce their potential exposure for workplace related claims? Adopting and fairly administering lawful policies and procedures is a good start, of course. However, employers also must take the next step to train employees about what is expected of them and the options available for resolving workplace issues within the organization.
CAN EMPLOYEES WAIVE CLASS ACTIONS IN ARBITRATION AGREEMENTS?
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
2007-01-18
Employers understand employment litigation in court entails expense, delay, and uncertainty. Seeking to avoid a jury's evaluation of workplace decisions, some employers have turned to alternative dispute resolution programs (called "ADR"). ADR can involve internal complaint procedures, mediation, and arbitration. In principle, both employers and employees can benefit from the faster and less formal procedures associated with ADR.
PRE-EMPLOYMENT TESTING CHALLENGED UNDER ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw
The Daily Recorder
2007-01-03
Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.