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Labor & Employment Law

California Labor & Employment Defense Blog

Providing employers up-to-date information about California employment law, including new cases, legislation, and discussions.

Post Frequency: 3.2/day

Last Entry: February 08, 2013 at 12:18:59

What Does it Mean to Be Terminated "Because Of" A Protected Characteristic -- Harris v. City of Santa Monica

Posted on February 08, 2013
Under California law it is illegal to terminate an employee "because of" his race, gender, religion, etc. In Harris v. City of Santa Monica, the California Supreme Court delved into the question of what that means where an employer had "mixed motives" for a decision...

Internal Sexual Harassment Complaints are Protected by Anti-SLAPP statute -- Aber v. Comstock

Posted on February 05, 2013
California's so-called anti-SLAPP statute, CCP section 425.16 et seq., is a powerful weapon for quickly disposing of lawsuit based on allegations that arise out of free speech or "public participation." To proceed with such a lawsuit the plaintiff must present admissible evidence establishing that he is "likely to prevail...

Class Certification is Appropriate Where Employer has No Break Policy -- Bradley v. Networkers International, LLC

Posted on December 27, 2012
The Fourth District Court of Appeal decision in Bradley v. Networkers International, LLC is significant because it directly addresses how the landmark Brinker decision should effect class certification of meal and rest break claims...

Bad "Business Judgment" is not Discrimination -- Veronese v. Lucasfilm

Posted on December 26, 2012
The challenge in discrimination cases is always proving the subjective intent of the decisionmaker. In other words, was the decision motivated by some legitimate business reason, or did the company base its decision on the plaintiff's _______? [fill in the legally protected category] As there is no way to peer into the mind of a decisionmaker the fact-finder must resort to making inferences from the surrounding circumstances...

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Employees Who Wear "Two Hats" Can Have Two Separate Employment Contracts -- Faigin v. Signature Group Holdings

Posted on December 06, 2012
For various legal and financial reasons large corporations frequently do business through an array of interrelated parent, subsidiary and sibling entities. Executives and other employees are frequently shifted back and forth or end up working for two different entities at the same tme...

Is Your Company A "Large Employer" Subject to "Obamacare" -- Understanding the 50 full-time Equivalent Threshold

Posted on November 25, 2012
It has been well-publicized that, beginning in January 2013, employers with more than 50 full-time employees will be required to comply with "Obamacare" by either providing insurance benefits for their employees or paying a penalty...

At-Will Termination May Be Fatal to Independent Contractor Status -- Monarrez v. Automobile Club of Southern California

Posted on November 22, 2012
In Monarrez v. Automobile Club of Southern California a motorist was struck by a car while his disabled vehicle was being hooked up by a tow truck operator who had been dispatched by the defendant. This raised the question of whether the tow truck operator was an employee for whom the dispatching company was legally responsible, or an independent contractor...

Time "Rounding" and "Grace Period" Policies -- See's Candy Shops v. Superior Court

Posted on November 20, 2012
In See's Candy Shops v. Superior Court, the Court addressed two separate issues concerning the recording and calculation of hours worked by non-exempt employees: (a) to what extent may employers "round" worker time entries; and (b) to what extent may employers base hours of pay on "scheduled" work times that differ from the actual time punch records...

Supperior Court Issues a $90 Million Cautionary Tale Against Playing Too Close to "The Cliff" With Meal and Rest Break Policies -- Augustus v. American Commercial Security

Posted on July 19, 2012
At this point employers should not need any further "wake up" call to get their meal and rest policies in compliance with California law. But if anyone is still unconvinced of the potential exposure the granting of a summary judgment in the amount of $89,741,426 in Augustus v...

Court Clarifies Scope of Permissible Commission Chargebacks -- DeLeon v. Verizon Wireless, LLC

Posted on July 12, 2012
In DeLeon v. Verizon Wireless, LLC the California Court of Appeal upheld the right of an employer to re-claim or "charge back" commissions which had been provisionally advanced for sales that were later canceled. California case law has been clear for some time in holding clawing back an "advance" that is never earned is not an illegal deduction from wages...

Charging Union Dues for Politcs may Violate Free Speech Rights of Non-Members -- Knox v. SEIU

Posted on June 25, 2012
In Knox v. Service Employees Int' Union, Local 1000, the SEIU imposed a special assessment on all employees which it represented -- union members and non-members alike -- in order to fund a special campaign to defeat Propositions 75 and 76, which were part of Arnold Schwarzenegger's 2005 attempt at public finance reform...

Court Clarifies When Commissions Are "Earned" or "Vested" -- Sciborski v. Pacific Bell Directory

Posted on June 12, 2012
Most commission plans contain some sort of caveat to the effect that the employer reserves the right to change or modify the commission calculation at any time before the commission is earned or paid out. This can be problematic in California, as commissions are a form of "wages" which are fully protected by the Labor Code...

Employers Shalt Not "Encourage" Employees to Work During Meal Breaks -- Brinker v. Superior Court

Posted on April 21, 2012
The California Supreme Court's long-awaited decision in Brinker v. Superior Court finally addressed the question of what an employer must do to effectively "provide" a meal break and thereby avoid the one-hour of pay due as premium or penalty pay...

Brinker v. Superior Court Decision To Be Published Tomorrow

Posted on April 11, 2012
The California Supreme Court announced today that the opinion in Brinker v. Superior Court (Hohnbaum) will be published tomorrow at 10:00 a.m. The opinion will address many issues surrounding meal and rest break requirements under the California Labor Code, such as whether employers need to ensure or simply provide meal breaks, and when breaks should be taken during a shift...

Keith Oberman sues Al Gore's Current TV for Wrongful Termination -- Olbermann Broadcasting Empire v. Current TV, LLC

Posted on April 08, 2012
Political commentator Keith Olbermann was recently terminated from Current TV, a start-up political network backed by Al Gore. The well-publicized termination involved allegations of not showing up for work and being generally insufferable...

Webinar - The Impact of Brinker: Understanding The Supreme Court's Decision On Meal & Rest Breaks

Posted on April 06, 2012
Be among the first in California to understand the complete impact the monumental decision in Brinker v. Superior Court will have on employers. The Court's decision is expected on April 12, and Anthony Zaller and Daniel Turner will analyze and discuss the impact of the decision...

Unpaid Wages May be Recovered Under PAGA -- Thurman v. Bayshore Transit Management, Inc.

Posted on March 01, 2012
Since its passage in 2004 the Labor Code Private Attorney General Act of 2004 (aka "PAGA") has been a persistent thorn in the side of the defense bar. The statute created a private right of action to enforce almost every section of the Labor Code and also created new monetary penalties for violations where none had existed before...

Seventh Circuit Finds Wal-Mart v. Dukes Does Not Limit Certification of Impact Cases -- McReynolds v. Merrill Lynch

Posted on February 28, 2012
Judge Posner of the Seventh Circuit produces more than his fair share of insightful analysis in his opinions. A case in point is McReynolds v. Merill Lynch. The issue was whether Merill Lynch's policy of allowing its advisors to form self-selecting teams resulted in a harmful disparate impact on its black financial advisors...

NLRB Holds Class Arbitration Waivers Are an Unenforceable "Unfair Labor Practice" -- D.R. Horton, 357 NLRB No. 184

Posted on February 13, 2012
The National Labor Relations Board (NLRB) has now weighed into the fray concerning the enforceability of class arbitration waivers. Its January 3, 2012 decision in D.R. Horton, 357 NLRB No. 184, the Board held that class arbitration waivers are unenforceable under the federal National Labor Relations Act ('NLRA')...

California Supreme Court Decision in Brinker Delayed

Posted on December 21, 2011
The California Supreme Court may generally take as long as it likes to decide a case. The only semi-firm deadline is created by California Rule of Court 8.524(h)(1), providing that a case is deemed "submitted" upon completion of oral argument, and the Constitutional requirement to decide a matter within 90 days of submission (See Cal...

Another Bad Law from Sacramento - AB 887 and "Gender Expression" Discrimination

Posted on October 11, 2011
Each year California enacts some very bad employment-related laws. By 'bad' I don't mean that they are necessarily bad policy. What I mean is that they are so poorly drafted that the policy itself is unintelligible. One of this year's 'bad' laws is AB 887, which prohibits discrimination based on 'a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth...

Does Wal-Mart v. Dukes Impact California Wage and Hour Claims -- U.S. Supreme Court Vacates Certification Order in Chinese Daily News v. Wang

Posted on October 04, 2011
The U.S. Supreme Court yesterday vacated the Ninth Circuit decision in Chinese Daily News v. Wang, which had upheld class certification of various California Labor Code claims. The Supreme Court makes no substantive analysis of the opinion but merely directed that it be remanded back to the Ninth Circuit "for further consideration in light of Wal-Mart Stores, Inc...

California Supreme Court Likely to Issue Ruling in Brinker Restaurant v. Superior Court Soon

Posted on October 04, 2011
Today, the California Supreme Court set oral argument in Brinker Restaurant v. Superior Court (Hohnbaum) to take place on November 8, 2011. The Court typically provides a ruling on cases within 90 days of oral argument, so I expect a ruling very early in 2012...

Breaking News -- Brinker Set for Oral Argument

Posted on October 04, 2011
According to the automated notice from the California Supreme Court, oral argument in Brinker v. Superior Court (Hornbaum) has been set for November 8, 2011. This means the Court's long-awaited opinion (which will presumably clarify the standards for providing meal periods for employees) will likely be issued some time early next year.

In Granting Class Certification District Courts "Must" Consider the Merits of the Claims -- Ellis v. Costco Wholesale Corp.

Posted on September 17, 2011
In Ellis v. Costco Wholesale Corp., the district court certified a nation-wide class of female Costco employees in what amounted to a carbon copy of the Dukes case against Wal-Mart. The Ninth Circuit was therefore required to re-evaluate the certification decision in light of the Supreme Court's ruling in Dukes...

First California Court Pushes Back Against AT&T Mobility v. Concepcion -- Brown v. Ralphs Grocery Company

Posted on July 13, 2011
The U.S. Supreme Court decision in AT&T Mobility v. Concepcion held that the Federal Arbitration Act preempts California's rule against waiving class action rights in consumer arbitration contracts. As we previously posted, if the reasoning of Concepcion were extended to the arbitration of employment claims it would overrule a vast body of well settled California law...

Shades of O.J. -- Casey Anthony Verdict May Affect Settlement Negotiations In Jury Cases

Posted on July 06, 2011
For years it was a common refrain for mediators and attorneys in L.A. to persuade clients to settle before trial with statements to the effect that "remember, your case will be decided by the same jury pool that decided O...

Court Clarifies Pay Stub Requirements -- McKenzie v. FedEx

Posted on July 05, 2011
The federal district court decision in McKenzie v. FedEx, provided some useful guidance to employers and employees regarding what information must be included in pay statements under Labor Code section 226(a). For example, in fulfilling the requirement to show "all hours worked," a wage statement doesn't necessarily have to contain a separate line item listing that number...

California Wage Laws Apply to Non-California Residents Working Temporarily In The State -- Sullivan v. Oracle

Posted on June 30, 2011
As the "global economy" becomes more fluid it is increasingly common for employees to cross borders for short-term assignments. This can lead to confusion concerning the proper calculation of wages for these assignments -- e...

2(b) or Not 2(b)?: Dukes v. Wal-Mart Closes the Gap Between Class Certification under Rule 23(b)(2) and (b)(3)

Posted on June 24, 2011
As widely reported, the U.S. Supreme Court held in Dukes v. Wal-Mart that the Title VII gender discrimination claims of 1.5 million employees were far too diverse to be decided on a class-wide basis. While the result is hardly surprising, the opinion is notable because it substantially revises the standards applicable to class certification under Rule 23(b)(2)...

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