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: 13.3/day Last Entry: November 06, 2009 at 11:04:10 Recent Entries: 292
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Vesting of Incentive Compensation -- Schachter v. Citigroup, Inc.
Posted on November 06, 2009The California Labor Code is very strict in protecting an employee's right to be paid for all compensation that he earns. As we have repeatedly blogged in the past, it is often a thorny issue to determine exactly when these protections attach -- in other words, when has a mere hope or expectation of a reward matured into a fully vested proprty right that must be paid by the employer without further delay or reduction? The California Supreme Court recently shed a bit more light on this issue in Schachter v...
Ninth Circuit Authorizes a Practical "Alternative Workweek" Solution -- Parth v. Pomona Valley Hospital
Posted on October 26, 2009In Parth v. Pomona Valley Hospital Medical Center, the Ninth Circuit authorized employers and employees to exercise some flexibility in attempting to work around the overtime requirements of the FLSA. In Parth, a group of nurses was originally assigned to work almost exclusively in 8-hour shifts...
Employees Are Not Required to Exhaust Internal Expense Reimbursement Procedures Before Suing -- Stuart v. RadioShack
Posted on October 10, 2009California employees have a right to be reimbursed for their work related expenses, such as business travel, equipment, materials, training, and even legal expenses. On the other hand, companies typically have their own deadlines, rules, special forms, and other procedural requirements which must be followed in order to request and receive reimbursement...
Dan Rather's Wrongful Termination Suit Against CBS is Dismissed Pursuant to "Pay or Play" Clause
Posted on October 05, 2009Dan Rather was famously terminated following his 2004 "60 Minutes II" report which used forged documents to accuse George W. Bush of evading military service. And a New York State Appellate Court has just dismissed the last remnants of Rather's wrongful termination lawsuit against the network...
Employers Cannot Avoid Liability For Discrimination By Subcontracting Hiring Decisions -- Halpert v. Manhattan Apartments
Posted on September 29, 2009In Halpert v. Manhattan Apartments, Inc. a job applicant sued after being told he was "too old" for a position. The prospective employer initially won summary judgment on the ground that it was not liable as the hiring decision was made by an outside contractor who was not its employee...
Is The NFL's Anti-Tampering Rule Legal Under California Law?
Posted on September 28, 2009The San Francisco 49ers have recently filed a complaint with the NFL against the New York Jets for supposedly "tampering" with their unsigned draft pick, Michael Crabtree. The Jets deny the accusation, of course, but what is "tampering" anyway? Well, the best definition I have been able to find, is given by NFL spokesman Greg Aiello in the Minneapolis Star Tribune: The term tampering as used within the National Football League, refers to any interference by a member club with the employer-employee relationship of another club or any attempt by a club to impermissibly induce a person to seek employment with that club or with the NFL...
Court holds independent contractor status of cab drivers not suitable for class action.
Posted on September 28, 2009USA Cab owns a fleet of about 45 taxis that it leases to drivers, and it operates a taxi dispatch service. At issue in the case was whether USA Cab's classification of the drivers as independent contractors was proper. The Plaintiffs' brought a putative class action alleging that due to the misclassification, USA Cab failed to provide workers' compensation insurance, failed to pay minimum wages, improperly required drivers to pay security deposits and other fees, and denied them meal and rest breaks...
HR professionals note to employment lawyers: stop working off of fear
Posted on September 25, 2009The HR blog Fistfull of Talent raises a concern I think a lot of HR professionals feel. See article 'Hey Employment Law ‘Experts', You're Killing My Profession.' Kris Dunn expresses the all too common sentiment that employment lawyers are not advising their clients – but are rather scaring them into inaction...
When Are Employers Liable for Their Workers' Traffic Accidents -- Jeewarat v. Warner Bros.
Posted on September 19, 2009It is well settled that employers may be liable for the actions of their employees in the "course and scope" of their employment. It is also well settled that employers are not liable for an employee during his commuting time -- otherwise known as the "coming and going rule...
Federal Judge Rejects $33 million SEC Settlement with Bank of America over Excessive Bonuses
Posted on September 15, 2009Bank on August 6, we blogged that the SEC's just-announced deal with BofA to settle claims of concealing unpaid executive bonuses was pretty lame. We pointed out two glaring problems with the settlement: i.e., that the $33 million settlement was "infinitesimal" next to the multi-billion dollar fraud being alleged and that "even more conceptually problematic" this amount was supposed to "be paid by the same shareholders who were the victims of the non-disclosure in the first place...
Is Cutting Employee Hours to Avoid Benefit Coverage Illegal Under ERISA?
Posted on September 13, 2009Companies that offer health insurance or other employee benefits typically set some sort of minimum threshold for triggering coverage -- for example, being employed for more than 20 or 30 hours per week. ERISA is very clear in allowing employers almost unlimited discretion to write their benefit plans in order to exclude part-time employees (or any other category of worker) in this fashion...
HR professionals and companies turning to Twitter for hiring needs
Posted on September 09, 2009The Wall St. Journal recently noted how mainstream Twitter is becoming in the workplace. The article notes that many employers are proactively using the service to recruit better qualified employees faster and cheaper. Companies such as Microsoft, Raytheon and MTV now list job openings on Twitter...
Social Norms and Market Norms -- Using Behavioral Economics in the Workplace
Posted on September 06, 2009Employers, managers, and employees can learn a lot about their workplaces from Dan's Ariely's fascinating new book Predictably Irrational: The Hidden Forces that Shape Our Decisions. One of the insights gleaned from the empirical psychological studies that he reviews is that we all maintain two separate and distinct moral systems -- i...
DFEH Review Shows That Disability Discrimination is Most Common Complaint
Posted on September 03, 2009As part of a review commemorating its 50th Anniversary the California Department of Fair Employment and Housing has released an informative review of the DFEH's history and current activities. The Power Point presentation includes some interesting facts...
Ninth Circuit Clarifies When Travel and Commuting Time Must be Paid -- Rutti v. LoJack
Posted on August 22, 2009In Rutti v. LoJack, the Ninth Circuit examined the issue of which employee activities must be counted as "hours worked" and which may be disregarded as non-compensable. In doing so, it touched upon most of the important issues raised in so-called "off-the-clock" cases...
Ninth Circuit Approves Whistleblower Claim by In-House Counsel
Posted on August 15, 2009In Van Arsdale v. International Game Technology, the Ninth Circuit reversed the grant of summary judgment against the retaliation claims of a husband and wife who worked together as in-house counsel and who claimed to have been wrongfully terminated for raising internal concerns about potential Sarbanes-Oxley violations...
Technology blurs work/life definition
Posted on August 11, 2009On-call time The WSJ notes the increase of lawsuits pertaining to when employees need to be compensated for on-call time or for time checking electronic devises away from the workplace. As the article notes, there have been a fair share federal cases, but California employers have no doubt been at the tip of this arrow...
Bank of America pays $33 million in SEC Fines for Excess Bonuses
Posted on August 06, 2009Employee bonuses continue to be a hot political issue. The most recent exhibit was the SEC's announcement on Monday that Bank of America would pay $33 million in fines for not telling its shareholders that Merill Lynch would be allowed to pay $5...
Ninth Circuit appeals court holds Wal-Mart cannot be held liable for foreign suppliers' labor violations
Posted on July 27, 2009Plaintiffs in this case, Jane Doe v. Wal-Mart, were employees of suppliers to Wal-Mart who work in foreign countries. Their lawsuit alleged that Wal-Mart should be liable for the suppliers' labor code violations. The employees worked for companies who manufactured goods for Wal-Mart in countries such as China, Nicaragua, and Bangladesh...
Card Check is Officially Dead, But Has Been Replaced By Bill For Faster Union Elections
Posted on July 20, 2009As recently as February, President Obama was telling union supporters in emphatic terms that "we will pass the Employee Free Choice Act [a/k/a "card check"]." According to the New York Times, however, the Democratic majority in the Senate has finally abandoned any attempt to replace secret ballots in union elections with a non-secret "card check" procedure...
Employer's Uniform Classification of Its Own Employees Does Not Justify Class Treatment -- Wells Fargo Home Mortgage Overtime Pay Litigation
Posted on July 13, 2009In re Wells Fargo Home Mortgage Overtime Litigation clarifies the role played by an employer's use of uniform job classifications when deciding to certify an overtime class. The opinion arose from Wells Fargo's appeal of the District Court order certifying a class of Wells Fargo "home mortgage consultants" for the purpose of determining whether they had been internally misclassified as exempt from overtime...
Binding Effect of PAGA Decisions Is An Alternative To Class Certification -- Arias v. Superior Court
Posted on June 30, 2009The California Supreme opinion in Arias v. Superior Court has created a potent new alternative to class actions for enforcing Labor Code provisions. The Supreme Court granted review to decide whether plaintiffs must obtain formal class certification in order to bring claims under two different statutes -- the Unfair Competition Law (the "UCL," Business and Professions Code section 17200, et seq...
Between A Rock and A Hard Place -- Ricci v. DeStefano Addresses the Conflict Between Disparate Treatment and Disparate Impact Theories
Posted on June 30, 2009The U.S. Supreme Court decision in Ricci v. DeStefano is very much in the tradition of the Court's affirmative action jurisprudence of the last 40 years. In other words, it is confusing and provides little or no practical guidance to real-world employers...
Arias v. Superior Court - Class Action Requirements Clarified By California Supreme Court
Posted on June 29, 2009In almost every employment law class action filed, the plaintiff alleges a cause of action under California's unfair competition law, found in California's Business & Professions Code section 17200. Likewise, plaintiffs' routinely allege causes of action under California Labor Code Private Attorneys General Act of 2004, found in Labor Code section 2698...
The Supreme Court Tweaks Burden of Proof for Age Discrimination -- Gross v. FBL Financial Services, Inc.
Posted on June 20, 2009The U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc. has been hailed by the news media and some commentators as effecting a significant change in the law which makes it "much harder" to prove age discrimination...
A Bad Idea Whose Time Has Come? -- Government Mandated Paid Sick Leave Under The Healthy Families Act
Posted on June 12, 2009Federal legislation to require paid sick leave is currently working its way through Congress. As currently drafted House and Senate versions of the Healthy Families Act would require seven paid sick days per year for most worker. Passage is by no means certain but a number of thorny enforcement issues will clearly arise if the bill becomes law...
Incentive Awards for Class Representatives -- Rodriguez v. West Publishing Corporation
Posted on June 11, 2009Class settlement agreements typically provide that individuals serving as class representatives may recovery special monetary payments, known as "enhancements" or "service awards." In the recent decision of Rodriguez v...
Employment Ruling At Center Stage For Sotomayor Confirmation
Posted on June 02, 2009As judge for the Second Circuit Court of Appeals in 2007, Judge Sotomayor affirmed a lower court's ruling that 17 white and two Hispanic firefighters were not discriminated against in violation of Title VII and the equal protection clause of the U.S. Constitution...
Managers Who Provide Table Service May Share in Tip Pool -- Appellate Court Reverses Award Against Starbucks
Posted on June 02, 2009As we previously blogged, Starbucks was hammered last year with a class restitution award of $105 million in a fight over the ownership of the change dropped in its tip jars. The central issue was whether store managers who also served customers could share in the tips which were left for all servers...
UCL ClassAction Standards are Clarified By California Supreme Court -- In re Tobacco Cases II
Posted on May 25, 2009In re Tobacco Cases II, is the California Supreme Court's most recent attempt to clarify the requirements for bringing a class action under the of California Unfair Competition Law, Business and Professions Code section 17200 et seq. ('UCL'). While the case involved claims of deceptive advertising by the Tobacco Industry, the opinion is also extremely important for employment class actions – the majority of which are also brought under the UCL...
Supreme Court Upholds "Grandfathered" Seniority System -- AT&T v. Hulteen
Posted on May 19, 2009When Congress passed Title VII in 1964 it did not initially ban pregnancy discrimination. In fact, it was not until the passage of the Pregnancy Discrimination Act (PDA) in 1978 that Congress finally added pregnancy as an expressly protected status...
Watkins v. Wachovia Corporation - New Class Action Opinion On The Effects Of Releases In Severance Agreements And Individually Settling With Named Plaintiffs
Posted on April 20, 2009Plaintiffs Brown and Watkins brought a wage and hour class action against Wachovia seeking damages for unpaid overtime on behalf of all California sales assistants on the basis that they were misclassified as exempt employees or that Wachovia simply did not pay the hourly employees for overtime worked...
Unions Can Require Their Members to Arbitrate Claims For Violation of Individual Statutory Rights -- 14 Penn Plaza v. Pyett
Posted on April 16, 2009The National Labor Relations Act (NLRA) has always encouraged unions and management to contract for an exclusive grievance and arbitration procedure to resolve claims for violation of their collective bargaining agreements (CBAs)...
The Perfect Storm
Posted on April 10, 2009Employers in California and across the nation are facing some of the most difficult times in almost 80 years on the employment and labor front. In addition to the bad economy, employers are struggling with the new regulations already put into place by the Obama administration, such as the newly enacted Ledbetter Fair Pay Act...
EEOC Found To Violate FSLA Overtime Law
Posted on March 31, 2009An arbitrator held that the Equal Employment Opportunity Commission willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees. The issue arose from the EEOC's policy of providing "comp" time to employees instead of paying them overtime...
EEOC Found To Violate FLSA Overtime Law
Posted on March 31, 2009An arbitrator held that the Equal Employment Opportunity Commission willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees. The issue arose from the EEOC's policy of providing "comp" time to employees instead of paying them overtime...
SEIU Picketed by Its Own Workers
Posted on March 30, 2009Times are apparently so hard these days that, according to a story by the Associated Press today, even the unions are experiencing labor unrest. Dozens of employees of the Service Employees International Union picketed their own union Friday over its decision to lay off about 75 workers...
Federal Service Contractors are Not Exempt from California Labor Code -- Naranjo v. Spectrum Security Services, Inc.
Posted on March 26, 2009Employers who provide services under contract to the federal government are required to pay minimum wages and benefits set by the Department of Labor pursuant to the McNamara-O'Hara Service Contract Act of 1965 (the "SCA") (41 U.S...
Another Arbitration Agreement Containing A Class Action Waiver Found To Be Unenforceable
Posted on March 20, 2009[In the interest of full disclosure – my firm represented Western Pizza in this case. Because of this, we are expressing none of our own analysis about the Court's opinion, but are simply reporting the court's findings.] Octavio Sanchez works as a delivery driver for defendant...
Obama Administration Moves to Block Bonus Payments to AIG Employees
Posted on March 17, 2009According to an article this morning in the Miami Herald the Obama administration will be attempting to block bonus payments to AIG executives and traders. A number of other prominent politicians have also piled on with righteous indignation at the prospect of paying large bonuses to highly paid executives at a company that is, for all intents and purposes, nationalized...
Court Refuses to Enforce Class Arbitration Waiver -- Franco v. Athens Disposal Company, Inc.
Posted on March 13, 2009In Franco v. Athens Disposal Company, Inc. the Court refused to enforce a class action waiver in an arbitration agreement which the employer was attempting to use to thwart class claims for missed meal periods. The case vividly illustrates how attempting to enforce such an agreement will likely result in an early ruling on the desirability of class certification...
Bartenders May Participate in Mandatory Tip Pools Even If They Do Not Provide "Direct Table Service" -- Budrow v. Dave & Busters
Posted on March 03, 2009Employer Wins Class Action Trial on Independent Contractor Status of Messengers -- Cristler v. Express Messenger Service, Inc.
Posted on February 12, 2009In late 2002 Express Messenger required its drivers to sign contracts designating them to be independent contractors rather than employees. The drivers sued. Their lawsuit claimed that they remained "employees" under California law and that the change in their status therefore denied them overtime, expense reimbursement and other benefits required by law...
Labor Secretary In Trouble?
Posted on February 05, 2009The Washington Post reported today that the nomination of President Obama’s Labor Secretary, Hilda Solis, may be in trouble. Apparently, Solis’ nomination was to be considered at a Senate hearing today, however, the hearing was canceled once a report surfaced that Solis’ husband recently paid $6,400 to settle tax liens against his business...
Obama's First Law Sends A Clear Message To Employers
Posted on January 29, 2009President Obama signed the Ledbetter bill into law today. The bill overturned the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber, which held that employees must file a discrimination claim within six months after being discriminated against...
Richard Posner Offers Economic Analysis of Employee Free Choice Act
Posted on January 27, 2009The impending passage of the "Employee Free Choice Act" has received a great deal of publicity in recent months. The Act would essentially eliminate secret balloting in union representation elections and allow government arbitrators to impose contract terms when negotiations reach an impasse...
Can Employers Conduct Surveillance On Employees Taking FMLA Leave?
Posted on January 26, 2009I expect that many more employers will be asking their employment counsel if they can conduct surveillance on employees who they expect are lying about their health status given today’s economy and the new FMLA regulations. There have been a few courts that have addressed this issue...
Congress Vastly Expands Time to File Discrimination Lawsuits
Posted on January 26, 2009Since its inception, Title VII has created remedies for any "adverse employment actions" that are motivated by race, sex or other prohibited reasons. A string of Supreme Court cases from at least the early 1970's had always held that the statute of limitations for discrimination claims should begin to run from the date of a discriminatory decision was made, regardless of how long the effects of the discrimination might last...
Lawsuit Seeks Ruling On Whether Obama is a "Natural Born" U.S. Citizen
Posted on January 22, 2009Using natural origin or even citizenship as criteria for employment is obviously illegal for private sector employees. Ironically, however, such discrimination is required for the most important job in the land. Article II, Section I of the Constitution provides that "No Person except a natural born citizen of the United States ...
Change We Can Believe In??
Posted on January 14, 2009Now that the Democratic Party controls Congress and the Presidency, significant changes appear to be coming in the Labor and Employment field. As stated in “The Corner,” (a blog maintained by the National Review), Democrats are expected to introduce several pieces of employment-related legislation in the next few months, including the Civil Rights Act of 2008...
Associate Sues Skadden For Wrongful Termination -- Green v. Skadden Arps
Posted on January 09, 2009A labor and employment law associate who was fired from the LA office of Skadden Arps has filed a lawsuit against his ex-employer for retaliation and wrongful termination. According to the complaint in Green v...
Having Employees Sign Forms Generally Objecting to Release of Contact Information Has No Effect on Plaintiff's Discovery Rights -- Crab Addison v. Superior Court
Posted on January 01, 2009In the 2007 decision of Pioneer Electronics v. Superior Court, the California Supreme Court held that class action plaintiffs have the right to discover the identities and contact information of class members. Since then there has been a steady drumbeat of published cases that have continued to reinforce that right -- usually with the proviso that class members should first be given notice of the request and an opportunity to affirmatively object to the disclosure...
Court Holds Employees' Contact Information Must Be Disclosed Despite Employee Agreement Stating Otherwise
Posted on January 01, 2009To close out 2008 wage and hour law, an appellate court issued a ruling in Crab Addison, Inc. v. Superior Court. The case is a very significant holding on employees' privacy rights in the context of wage and hour class actions. Crab Addison, Inc...
Calculating "Bonus Overtime" -- Marin v. Costco
Posted on December 30, 2008It is shocking how many employers don't realize that paying a bonus to hourly employees will trigger an additional overtime obligation. The decision in Marin v. Costco is a reminder of this obligation and an illustration of just how convoluted the calculation can become, especially where the bonus is variable based on work effort or performance...
Court Rejects Punitive Damages for Labor Code Violations -- Brewer v. Premier Golf Properties
Posted on December 29, 2008California Civil Code section 3294 provides that punitive damages are generally available in any "action for the breach of an obligation not arising from contract." So if the Legislature creates a statutory obligation and does not specifically limit the remedies, shouldn't a plaintiff be able to recover punitive damages if he proves the defendants acted with the requisite "malice, fraud or oppression?" This question has been the subject of many demurrers over the years but has never had a very clear answer...
Some Background On New Labor Secretary - Hilda Solis
Posted on December 19, 2008pHilda Solis has been tapped to be Barack Obama's Secretary of labor.nbsp; As Bloomberg.com a href="http://www.bloomberg.com/apps/news?pid=20601087amp;sid=aBq6gZvg._wMamp;refer=home"reports/a:/p blockquote pSolis, 51, is a four-term member of Congress with an extensive record on environmental issues...
Mass Layoffs Trigger Federal And California Law Notice Requirements
Posted on December 17, 2008pAs this a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/12/17/BUIU14PDMV.DTL"story about a recent restaurant closure illustrates/a, California employers who are downsizing in this dismal economy must comply with the federal WARN Act, and Californiarsquo;s ldquo;babyrdquo; WARN Act equivalent...
Class Action Lawsuit Against Heller Ehrman Alleges Failure to Pay Accrued Vacation
Posted on December 16, 2008As many readers have no doubt heard the venerable law firm of Heller Ehrman recently dissolved after nearly one hundred years in business. During this time it was intermittently the biggest firm in the Bay Area and close to the top in the state...
Bad Economy Forces Politicians To Re-Think California's Meal Break and Overtime Laws
Posted on December 15, 2008The bad economy is forcing politicians and business owners to re-examine California's laws on meal and rest breaks, and overtime. The Governor has proposed legislation to reform these laws in order to keep jobs and businesses here in California...
Bad Records Are No Defense to Class Certification -- Harper v. 24 Hour Fitness
Posted on December 15, 2008In opposing class certification employers frequently argue that identifying the class members will be prohibitively expensive or time consuming due to lack of records. For example, it may be difficult to determine who was affected by certain commission terms, who worked overtime, or who did or did not take a full 30 minute meal break on particular days...
California Employment Applications Must Exclude Certain Marijuana Convictions -- Starbucks v. Superior Court (Lords)
Posted on December 11, 2008An obscure provision of California law, Labor Code section 432.8, prohibits employers from asking job applicants about marijuana-related convictions which are more than two years old. Most standard employment applications include a general question asking for disclosure of all criminal convictions...
IRS Lowers Mileage Rate For 2009
Posted on December 01, 2008The IRS announced that it will be lowering the IRS mileage rate in 2009. Beginning on Jan. 1, 2009, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 55 cents per mile for business miles driven...
Professor Boycotts Sexual Harassment Training
Posted on November 26, 2008Under California law, employers with more than 50 workers are legally required to provide sexual harassment prevention training to their supervisory employees. An interesting Op-ed piece appeared in the Los Angeles Times last week by Alexander McPherson, a tenured UCI professor, who is refusing to attend his employer's mandatory sexual harassment training...
New DOL Regs expand FMLA Leave Rights to Include Military Families
Posted on November 25, 2008The Department of Labor's Wage and Hour Division has just published a Final Rule under the Family and Medical Leave Act. The final rule becomes effective on January 16, 2009, and updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008...
Sullivan v. Oracle -- Residents of Other States are Entitled to Labor Code Remedies for Work in California
Posted on November 14, 2008The recent case of Sullivan v. Oracle dealt with the thorny issue of what law should apply to employees whose work carries them across state lines. The Ninth Circuit held that work performed in California should generally be governed by California's strict wage and hour laws -- even if the employee is a resident of another state and is only temporarily working in California...
New Ruling On Meal Breaks and Itemized Wage Statements: Brinkley v. Public Storage, Inc.
Posted on October 29, 2008A recent case, Brinkley v. Public Storage, Inc. (October 28, 2008) is getting quit a bit of attention due to its ruling on employers’ duty to provide meal breaks. The court in Brinkley (out of the Second Appellate District), agreed with the holding of the appellate court in Brinker v...
Breaking News: CA Supreme Court Grants Review In Brinker v. Superior Court
Posted on October 22, 2008The California Supreme Court announced today that it will be reviewing the much analyzed case Brinker v. Superior Court (Hohnbaum). The lower court ruling in the case was favorable to California employers, in holding that employers did not have to "ensure" that meal breaks were taken, but only that employers had to provide meals breaks...
Bad Job Design Is The Cause of Many Bad Sales Compensation Plans
Posted on October 21, 2008We have previously blogged about some of the ways in which a bad sales compensation plan can result in legal liability. However, as Ann Bares points out in her Compensation Force blog, many bad sales plans are caused by vague or ill-defined job responsibilities...
Can Employers Monitor Employee's Text Messages Sent Through Company Owned Devises?
Posted on October 16, 2008In Quon v. Arch Wireless Operating Company, Inc., (June 2008), City of Ontario police department employees, and one employee's wife, brought a Fourth Amendment action against their employer, in connection with the department's review of employees' text messages, and asserted claim against wireless communications provider under Stored Communications Act (SCA)...
Can Employers Monitor Employee's Text Messages Sent Through Company Owned Devices?
Posted on October 16, 2008In Quon v. Arch Wireless Operating Company, Inc., (June 2008), City of Ontario police department employees, and one employee's wife, brought a Fourth Amendment action against their employer, in connection with the department's review of employees' text messages, and asserted claim against wireless communications provider under Stored Communications Act (SCA)...
IRS Offers Whistleblower Informant Awards
Posted on October 15, 2008As if employers don't have enough to worry about . . . the IRS is now offering money to individuals who tip them off about suspected non-payment of taxes. According to the IRS website, they are "looking for solid information, not an 'educated guess' or unsupported speculation...
Power Point for RSA Talk
Posted on October 08, 2008Thanks to all those who attended the Fall seminar sponsored by Research Security Administrators (RSA) in Fountain Valley yesterday. As always, it was a class act and very well put together with lots of current, useful information for security professionals...
Employment Related Bills Signed (and Vetoed) by Governor
Posted on October 03, 2008It is a bit anticlimactic, but the Governor vetoed many more employment related bills than he approved recently. The following is a list of employment and litigation related bills that were signed by the Governor: AB 2075 Wages: execution of release of claim or right...
New California Law Further Restricts Employee Release Agreements
Posted on October 02, 2008Governor Schwarzenegger recently signed a bill amending Labor Code Section 206.5, which restricts the enforceability of agreements purporting to release wage claims. Labor Code section 206.5 currently provides that an employee cannot be required to sign an agreement releasing the employer from liability for wages "unless payment of such wages has been made...
Some Reminders For Employers In Difficult Financial Times
Posted on September 30, 2008Frank Roche, over at KnowHR, reminds employers the 10 Things HR Needs to Do in an Economic Downturn. Here is a summary of Frank's points: Get up, walk out of HR, and talk to the people running operations. Fix your friggin sales comp once and for all...
Wal-Mart's Wage And Hour Issues Continue In Massachusetts
Posted on September 30, 2008The Supreme Judicial Court of Massachusetts reversed an order decertifying a class of current and former Wal-Mart hourly workers who claimed that Wal-Mart failed to provide meal period and rest breaks as required by law. Salvas v. Wal-Mart (Mass. 9/23/08) The Court held: We conclude, inter alia, that the judge abused his discretion in allowing Wal-Mart's motions to exclude the testimony of the plaintiffs' expert and to decertify the class...
New Appellate Case Upholds Independent Contractor Status
Posted on September 30, 2008Appellant Al Varisco sued Gateway Science and Engineering for wrongful termination of employment and similar causes of action. In order to sue under these legal theories, Varisco had to establish that he was an employee, not an independent contractor as Gateway contended...
Mandated Executive Compensation Limits Appear Innevitable
Posted on September 29, 2008In case you hadn't heard, the bipartisan economic bailout bill failed to pass the House today. However, an article in Workforce.com is already opining that one politically popular aspect of the bill is destined to survive in any future bailout proposal -- namely, limits on executive compensation...
Attorneys Using Social Networking Sites For Jury Selection
Posted on September 29, 2008We have blogged and spoken quite a bit recently about using on line resources such as MySpace and Facebook for employment and recruiting purposes. An interesting article in today's LA Times reports on another use for this information -- jury selection...
ADA Amendments Act (ADAA) Signed Into Law -- Federal Disability Protections Broadened
Posted on September 28, 2008It didn't get much press this last week -- what with the economy collapsing in the midst of a presidential election -- but on Thursday President Bush signed the ADA Amendments Act (ADAA) into law. The legislation will take effect on January 1, 2009 and will significantly broaden the federal definition of the "disabilities" that require accommodation under the ADA...
California Human Resources Networking Group - LinkedIn
Posted on September 23, 2008I recently founded the California Human Resources Networking Group in LinkedIn. I’ve found that LinkedIn is becoming more and more popular with human resource professionals as well as legal professionals, so I created the group in order to promote HR related discussions specific to California...
Review of Overtime Obligations In California
Posted on September 22, 2008Employers must review their payroll process from time-to-time to ensure that all overtime is being paid properly. Also, it is important for employers to conduct this analysis themselves – and not simply assume that their payroll company is doing it correctly...
Now On Twitter
Posted on September 21, 2008I've been on Twitter for awhile, but only recently became more active with the site. Click here to follow me through twitter. I am going to try to post any updates on California employment law in twitter, as well as this blog. I highly recommend using Tweetdeck to make twitter more useful...
Employers Face a High Burden to Accomodate Returning Employees: Nadaf- Rahrov v. Neiman Marcus Group, Inc.
Posted on September 20, 2008On September 10, the First District Court of Appeal issued what I believe is the very important disability discrimination case of Nadaf- Rahrov v. Neiman Marcus Group, Inc. The decision is important not because it alters pre-existing disability law, but because it applies the law to the most common scenarios and real-life issues faced by employers and employees...
Online Resources Help with Work Visa Information
Posted on September 20, 2008We frequently field questions from clients about work permits for their foreign national employees. It is a complicated area. Many employers may have a passing familiarity with the standard "green card" Visa, the H1-B Visa program for highly skilled workers, or the L-1 Visa for employees who are on transfer from one of the employers foreign offices...
Employers Face a High Burden to Accommodate Returning Employees: Nadaf- Rahrov v. Neiman Marcus Group, Inc.
Posted on September 20, 2008On September 10, the First District Court of Appeal issued what I believe is the very important disability discrimination case of Nadaf- Rahrov v. Neiman Marcus Group, Inc. The decision is important not because it alters pre-existing disability law, but because it applies the law to the most common scenarios and real-life issues faced by employers and employees...
U.S. Supreme Court Clarifies Test for "Disparate Impact" Age Discrimination in Meachum v. Knolls Atomic Power
Posted on September 19, 2008It is not enough for employers to avoid deliberate discrimination against members of protected groups when selecting employees for layoff. In addition, they must avoid inadvertently using any selection criteria that tend to have a "disparate impact" on a particular group...
Speaking at Research Security Administrators' Fall Seminar
Posted on September 11, 2008I will be speaking at the Fall seminar sponsored by Research Security Administrators on October 7, 2008 in Fountain Valley California. For those not familiar with RSA, it was founded in 1956, as a nonprofit regional security organization "concerned with all defense, technical, scientific, and social matters which have an impact on the security of the United States...
What Are Employers To Do In The Wake of Brinker v. Superior Court?
Posted on September 11, 2008It was a pleasure conducting the presentation on “Meal and Rest Breaks in California: Why the Brinker Ruling Is Good News for Employers, and Where Caution is Still Required” through Business & Legal Reports. It was wonderful to have such a large audience, as well as great follow-up questions...
"Lipstick on a Pig" -- Stray Remarks as Evidence of Discrimination
Posted on September 11, 2008As political pundits talked about lipstick and pigs over the last several days, it occurs to me that this latest round of political posturing bears more than a passing resemblance to the disputes that animate much employment litigation...
Religious Discrimination or Just Running a Business? -- Employer Fires Muslim Workers Demanding Prayer Breaks
Posted on September 11, 2008According to a front page story in the Los Angeles Times today, JBS Swift & Co. has just laid off about 100 Muslim workers who walked off their jobs as a protest for not receiving prayer breaks. The layoffs occurred in Colorado and will inevitably implicate a host of collective bargaining issues...
Petition For Review Filed In Brinker v. Superior Court
Posted on September 04, 2008Plaintiff has filed a petition to the California Supreme Court requesting that it review the appellate decision in Brinker v. Superior Court (Hohnbaum) [as previously written about here and here]. The Supreme Court has at least 60 days to decide whether or not to grant review of the case – so until then the appellate court’s decision is still citable case law...
California Supreme Creates Appellate Rights for Losing Parties in Arbitration
Posted on August 31, 2008In Cable Connections, Inc. v. DirecTV, Inc., the California Supreme Court has fundamentally altered the nature of arbitration in California. Previously, it had been well established that an arbitrator's decision was final and binding and could be vacated only for the most limited of reasons, such as outright corruption, refusing to hold a hearing, or exceeding his jurisdiction...
Reasonable Limits On Employee's Time To File A Lawsuit Upheld By Appellate Court in Pearson Dental Supplies, Inc. v. Superior Court (Turcios)
Posted on August 27, 2008Plaintiff Luis Turcios sued his former employer, defendant Pearson Dental Supplies, Inc., for age discrimination under the California Fair Employment and Housing Act (FEHA) (Click here to read the opinion: Pearson Dental Supplies, Inc. v Superior Court (Turcios))...
"Silent" Arbitration Agreements are Consistently Found to Authorize Class Wide Arbitration
Posted on August 20, 2008Conventional wisdom among defense counsel has long been that arbitration is the preferable forum for resolving individual employment disputes such as wrongful termination, discrimination and sexual harassment. As a result, the number of employers with mandatory ADR programs skyrocketed in the 1990's and early 2000's...
Podcast On Brinker v. Hohnbaum: What Are Employers' Obligations To Provide Meal and Rest Breaks?
Posted on August 20, 2008Click here to listen to my podcast on Brinker v. Hohnbaum, for analysis of the decision and what effect the case may have on California's meal and rest break wage and hour litigation. It runs about 13 minutes, and provides a summary of the court's reasoning, and the outcome if the case is appealed to, and granted review by the California Supreme Court...
Labor Code Class Actions Consistently Outnumber All Other Categories Combined
Posted on August 18, 2008The Class Action Defense Blog published by Michael J. Hassen has made a regular weekly feature of tracking the new filings of class actions in state and federal courts in California. The weekly results confirm what most class action practioners have long-recognized -- the deluge of labor law class actions far outnumbers any other category...
Alch v. Superior Court (Time Warner) -- Court Reaffirms Discoverability of Private Employee Data in Class Actions
Posted on August 15, 2008The California Supreme Court's decision last year in Pioneer Electronics v. Superior Court, 40 Cal.4th 360 (2007), held that the privacy rights of current and former employees will not normally prevent a class action plaintiff from discovering their names, addresses, phone numbers and other data in litigation...
Plaintiffs Stand To Gain More From Settling? New Study Suggests So
Posted on August 13, 2008A recent New York Times article provides a prelude to a study being unveiled later that examines the psychological issues that clients and lawyers face when deciding whether to take a case to trial. One of the main findings of the study is that plaintiffs, statistically speaking, stand to gain more in taking a settlement offer than litigating the case...
CA Supreme Court Holds Non-Competes Are Generally Unenforceable and Release of "Any And All" Claims Not Unlawful
Posted on August 07, 2008In Edwards v. Arthur Anderson LLP, the California Supreme Court ruled on the following issues: (1) To what extent does Business and Professions Code section 16600 prohibit employee noncompetition agreements; and (2) is a contract provision requiring an employee to release “any and all” claims unlawful because it encompasses nonwaivable statutory protections, such as the employee indemnity protection of Labor Code section 2802? Noncompetition AgreementsNoncompetition agreements are governed by Business & Professions Code section 16600, which states: “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...
East Bay Taxi Drivers Association v. Friendly Cab Co., -- Taxi Drivers Found to be Employees, Not Independent Contractors
Posted on August 05, 2008The Ninth Circuit’s decision earlier this year in East Bay Taxi Driver’s Association v. Friendly Cab, Inc., 512 F3d 1090 (2008), illustrates how easily courts will pierce through the outward appearances of a “business” contract to find that, at bottom, it is just a glorified employer-employee relationship...
Disputes over Unpaid Sales Commissions and Bonus Payments: When Does a Mere Expectation Become into an "Earned" Wage? Part I -Performance-Based Employment Compensation as a Unilateral Contract
Posted on August 03, 2008Most employees are paid for their time. Thus, if they work eight hours at a rate of $25 per hour, or eight weeks at a salary of $2,500 per week, there is little dispute over the amount of wages owed. But disputes begin to multiply where the payment is deferred and is calculated based on meeting certain performance targets...
Disputes over Unpaid Sales Commissions and Bonus Payments: When Does a Mere Expectation Become an "Earned" Wage? Part I - Performance-Based Employment Compensation as a Unilateral Contract
Posted on August 03, 2008Most employees are paid for their time. Thus, if they work eight hours at a rate of $25 per hour, or eight weeks at a salary of $2,500 per week, there is little dispute over the amount of wages owed. But disputes begin to multiply where the payment is deferred and is calculated based on meeting certain performance targets...
DLSE Orders Staff To Follow Brinker
Posted on July 31, 2008The DLSE has recently issued a memorandum to its deputy labor commissioners instructing them to follow the holding in Brinker v. Superior Court. The July 25, 2008 DLSE memorandum provides, in pertinent part, that the Brinker decision is “a published decision, and its rulings are therefore binding upon the [DLSE]...
Outdated IRS Rules on Employee Cell Phone Usage Likely To Change
Posted on July 30, 2008A recent LA Times Article reports that the current IRS rule for expensing employer-provided cell phones is likely to be changing soon. The current rule permits employers to treat employee cell phone reimbursement as a deductible business expense only if the employee has kept a detailed log of every call and the reason for the call...
Perspectives on Brinker (Part II) -- When Must Employers Schedule Employee Meal Breaks
Posted on July 30, 2008In a prior post on Brinker v. Superior Court (Hohnbaum), we examined what the decision means in terms of defining the duty of California employers to make meal and rest breaks "available" to employees. In this post we look at what Brinker says about when during the day those breaks need to be provided...
Perspectives on Brinker: What Must a California Employer Do to Make Meal and Rest Breaks "Available" to Their Employees?
Posted on July 25, 2008In Brinker Restaurant Co. v. Superior Court, ___ Cal.App 4th ___ (2008), the Fourth District Court of Appeal held that “meal periods need only be made available, not ensured.” Thus employers are not strictly liable for missed meal and rest breaks when an employee “merely show[s] that he did not take them regardless of the reason...
Perspectives on Brinker: What Must California Employers Do to Make Meal and Rest Breaks "Available" to Their Employees?
Posted on July 25, 2008In Brinker Restaurant Co. v. Superior Court, ___ Cal.App 4th ___ (2008), the Fourth District Court of Appeal held that “meal periods need only be made available, not ensured.” Thus employers are not strictly liable for missed meal and rest breaks when an employee “merely show[s] that he did not take them regardless of the reason...
The Brinker Decision Generates A Lot Of Commentary
Posted on July 23, 2008Here is a sampling of what the blogosphere is saying about yesterday's Brinker v. Hohnbaum decision: UCL Practitioner: I was co-counsel for the employees in the appellate-level proceedings, and my normal policy is not to blog about my own cases (with an occasional exception if they are already getting outside press or blogosphere coverage)...
Meal and Rest Break Requirements Clarified By Court in Brinker v. Hohnbaum
Posted on July 22, 2008The Appellate Court, Fourth Appellate District, Division One, issued a much awaited opinion today in Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008). The case is one of the first California state appellate court to rule on the parameters of employers’ duties under the California Labor Code requiring rest and meal breaks for hourly employees...
Brinker v. Superior Court: Employer's Need Not "Ensure" Meal Periods Are Taken
Posted on July 22, 2008The California Court of Appeal today issued its eagerly-awaited Brinker decision, which handed a big victory to employers and helped to clarify the standards that apply to the provision of meal periods under Labor Code section 512. To cut right to the chase, the Appellate Court summarized its decision as follows: Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so...
Brinker v. Superior Court: Employers Need Not "Ensure" Meal Periods Are Taken
Posted on July 22, 2008The California Court of Appeal today issued its eagerly-awaited Brinker decision, which handed a big victory to employers and helped to clarify the standards that apply to the provision of meal periods under Labor Code section 512. To cut right to the chase, the Appellate Court summarized its decision as follows: Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so...
DLSE Public Hearings Air Concerns Regarding Meal Break Issues
Posted on July 21, 2008Once upon a time, employee meal and rest periods were an obscure legal backwater, which was the exclusive province of hard-core human resources nerds and bureaucrats. But no longer. Class action meal period litigation has now become a multi-million dollar political football...
Department Of Labor's Tool For Posters and Recordkeeping Compliance
Posted on July 08, 2008The U.S. Department of Labor (DOL) recently launched a new resource for employers - The FirstStep Employment Law Advisor. The resource is designed to help employers determine which federal employment laws administered by the DOL apply to their business or organization, what recordkeeping and reporting requirements they must comply with, and which posters they need to post...
Braun v. Wal-Mart, Inc.: Wal-Mart Hammered For Meal and Rest Break Violations in Minnesota
Posted on July 08, 2008Companies doing business in California frequently lament the “unique” burdens imposed by California wage and hour laws. But with all the attention on California wage and hour class action litigation, it is worthwhile to remember that many other states actually have similar laws...
Reporting Time or "Show Up" Pay
Posted on July 08, 2008Reporting time pay is a form of “premium” pay that, like overtime or missed meal period compensation, is intended to discourage work scheduling practices that are deemed to create a special burden on employees. Reporting time pay, also called “Show-Up Pay,” is intended to discourage employers with variable work demands from deliberately over-staffing their operations and then sending home any “excess” workers without pay...
Five Common Mistakes In Sexual Harassment Policies
Posted on June 25, 2008Rush Nigut wrote recently about five common mistakes he see employers make in drafting sexual harassment policies. Rush makes very good points, here are a few highlights: The written policy does not provide and communicate in writing multiple channels for the complaint procedure...
IRS Mileage Rate To Increase 8 Cents July 1, 2008
Posted on June 24, 2008The IRS announced yesterday that the IRS mileage rate will increase to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008. Click here to see the IRS press release. This is an increase of eight cents from the 50...
U.S. Supreme Court Issues Three New Employment-Related Decisions Today
Posted on June 19, 2008The United States Supreme Court has just issued a 5-4 ruling on an age discrimination issue in Kentucky Retirement System v. EEOC and a 6-1-2 ruling on an ERISA issue in Metropolitan Life Insurance Co. v. Glenn. In addition, the Court also ruled on a burden-of-persuasion issue on an age discrimination claim in Meacham v...
Attorney's Letter or DFEH Charge Triggers Employer's Duty to Tender Claim to Insurance Carrier Even if No Lawsuit Filed
Posted on June 18, 2008Westrec Marina Management, Inc. v. Arrowood Indem. Co., contains some important lessons for employers who believe they have insurance coverage for employment claims.In Westrec, an employee’s attorney sent a letter on June 24, 2003 to the Company asserting that his client had been sexually harassed by supervisory employees, and inviting the Company to engage in a settlement discussion...
Schwarzenegger and Sacramento Republicans Look at Reforming Meal Period Rules
Posted on June 17, 2008The California Legislature has once again missed its budget deadline. This is more of an annual tradition than news. But this year the deficit is particularly large and the resulting budget fight will therefore be especially brutal. For example, state Republicans want to put everything on the table, including non-budget items such as a reform of meal break rules...
Motion To Strike Class Certification Allegations Upheld By Appellate Court
Posted on June 16, 2008Three Plaintiffs filed two separate class actions against AZ3, Inc., doing business as BCBG Maxazria (BCBG), on behalf of all managers and assistant managers in BCBG’s California stores. The complaints alleged causes of action for failure to pay overtime compensation (Lab...
U.S. Supreme Court Turns Down Employer's Appeal Regarding FMLA Rights
Posted on June 16, 2008The United States Supreme Court rejected an appeal by Progress Energy, Inc. regarding the waiver of an employee’s rights under the Family and Medical Leave Act (“FMLA”). In Progress Energy v. Taylor, the Court rejected – without comment – Progress Energy’s appeal from a 4th Circuit Court of Appeal ruling that held an employer cannot induce to waive their rights under the FMLA...
Amaral v. Cintas Corporation: The Wide World of Local Wage Laws
Posted on June 16, 2008The recent decision in Amaral v. Cintas contains a full plate of legal issues involving a city’s authority to regulate conduct outside its borders, employer’s duties to keep records, and a court’s discretion to reduce an employer’s potential penalties under the Labor Code Private Attorney General Act of 2004 (“PAGA”)...
"Holiday Pay" Is Not Considered An Employee's "Regular Rate Of Pay" For Calculating Overtime
Posted on June 10, 2008In Advanced-Tech v. Superior Court, Ester Roman worked as a security guard for Advanced-Tech Security Services, Inc. (Advanced-Tech). Ms. Roman brought a class action lawsuit against Advance-Tech for violations of Labor Code sections 510, 1194, and 1198, as well as failure to provide accurate itemized statements to her in accordance with section 226 and unfair business practices in violation of Business and Professions Code 17200...
President Bush Signs Executive Order Requiring Federal Contractors to Use E-Verify System to Confirm Work Eligibility and Immigration Status
Posted on June 10, 2008President Bush has signed an executive order requiring all federal contractors to use the federal E-Verify system to confirm that new hires are eligible to work in the United States. E-Verify is a Web-based database that will report the status of an employee based on his or her SSN...
Warning to Employers: Following the Terms Of A Collective Bargaining Agreement Is No Defense To Employee Claims For Overtime, Meal and Rest Periods
Posted on June 10, 2008Many employers believe that union and non-union labor law are two entirely different universes. In some respects this is understandable. After all, there is an extensive decades-old body of federal labor law regulating the relationship between management and organized labor...
U.S. Supreme Court Rules Against Public Employee
Posted on June 10, 2008The United States Supreme Court ruled against an individual public employee who invoked the equal protection clause of the Constitution in support of her claim. The Court ruled, in a 6-3 decision, that individual public employees have a variety of protections from personnel actions, however, the equal protection clause of the Constitution is not one of them...
Blogging - As American As Apple Pie?
Posted on June 02, 2008I read this post by Kevin O'keefe recently that challenges lawyers to blog. Normally, I would have simply agreed and moved on with the next item on my list to do. However, my brother was in China recently, and we spoke over the phone at one point and I told him that he should check out a personal blog post I wrote about a trip my son and I took to see the Red Bull Air Race in San Diego...
Thompson v. North American Stainless, LP: Anti-Retaliation Protection is Expanded to Include Friends, Relatives and Anyone "Closely Associated" with a Complaining Employees
Posted on June 02, 2008In Thompson v. North American Stainless, LP, the plaintiff alleged he had been fired because his wife -- who had previously worked for the same employer –filed a charge of discrimination against it with the EEOC. The trial court granted summary judgment against the husband on the ground that he himself had never engaged in any of conduct protected by Title VII – such as opposing the alleged discrimination or participating in the government investigation...
When Are "On-Duty" Meal Periods Permitted?
Posted on May 30, 2008My recent post about Bufil v. Dollar Financial Group, Inc. (filed April 14, 2008, ordered published May 13, 2008) made a lot of readers ask, “When can an employer have an employee enter into an ‘on-duty’ meal period agreement?” As any reader of our blog knows, pursuant to Labor Code section 226...
"Retooling" Of The Blog
Posted on May 23, 2008As some of our readers may have already noticed, we are changing a few elements of our blog. With summer upon us, we thought it would be a good opportunity to retool. We are changing the blog to better suit our readers as we learn the new technologies available to us...
Appellate Court Allows "On-Duty" Meal Period Class Action To Proceed
Posted on May 14, 2008This case is a class action lawsuit filed by Caren Bufil for violations of California’s meal and rest break laws, and violation of California’s Unfair Competition Law against Dollar Financial Group, Inc. (Dollar). Bufil v. Dollar Financial Group, Inc...
Appellate Court Holds Network Director For Start-up Company Was Properly Classified As Exempt Employee
Posted on May 12, 2008In a recently published opinion, Combs v. Skyriver Communications, Inc., the plaintiff Mark Combs appealed a judgment against him in an action to recover overtime pay and meal and rest breaks. He alleged that he was misclassified as an exempt employee while working for Skyriver Communications, Inc...
Today's BLR Teleconference On Hidden Risks In Using Social Networking Internet Sites To Conduct Background Checks
Posted on April 30, 2008I would like to thank everyone on today's BLR teleconference on the pitfalls on using social networking sites to conduct background checks on employees. I hope everyone enjoyed the seminar. As I promised, here are the five general caveats employers should follow when using social networking sites to conduct background checks on employees: 1...
"Unequal Pay" Bill Blocked In U.S. Senate
Posted on April 25, 2008The Senate recently failed to break a Republican-led filibuster currently blocking the Fair Pay Restoration Act. The Fair Pay Act would make it easier for people to sue over pay discrimination and is in response to the 2007 Supreme Court ruling that limited such cases...
Legislative Update: Senate Passes Genetic Information Nondiscrimination Act
Posted on April 25, 2008The United States Senate voted 95-0 to pass the Genetic Information Nondiscrimination Act yesterday. That bill, which President Bush is expected to sign, would bar insurers from asking or using genetic information to make a decision about coverage or to set premiums...
Speaking Next Week On Pitfalls When Using The Internet To Conduct Background Searches For Applicants
Posted on April 24, 2008Posted by Anthony Zaller I will be speaking again next week on the pitfalls employers encounter when using the Internet, MySpace.com, Facebook.com, and similar social networking sites to check out the backgrounds of job applicants and employees. If you are interested, more information about the seminar can be found here...
Upon An Employee's Request, Which Documents Does An Employer Have To Show And/or Copy?
Posted on April 24, 2008Employers are obligated only to provide copies of any documents signed by the employee or applicant relating to their job. Labor Code section 432. Employees are allowed to inspect other categories of documents. For example, Labor Code Section 1198...
Bill Requiring Paid Sick Days For Employees Takes One Step Closer To Becoming Law
Posted on April 10, 2008The Assembly Labor and Employment Committee passed the Healthy Families, Healthy Workplaces Act today by a vote of 6-2. The bill, introduced by Assemblywoman Fiona Ma (D-San Francisco) in February, AB 2716, would allow workers to earn paid sick days that can be used to recover from illness, care for a sick family member, or recover from domestic violence or sexual assault...
Approach With Caution: Conducting Background Checks Using Facebook, MySpace or the Internet
Posted on March 31, 2008Employers are becoming more and more aware of the information obtainable via the internet about their current employees as well as applicants. Many are looking up prospective and current employees' Facebook and MySpace pages to glean more information about the individual...
Someone Must Be Reading This
Posted on March 28, 2008To end the week, we wanted to give ourselves a pat-on-the-back due to our blog's first place ranking in popularity among employment law blogs (and ranked 32nd of out of all legal blogs) this week on Justia.com. If you have not already checked it out, Justia...
The right ... to wear pants.
Posted on March 27, 2008I am preparing for a press interview about how employers should approach dress code policies and it seems that it always is a surprise to people to learn that that the California Government Code specifically addresses employees' right to wear pants to work...
Court Rules Starbucks Owes $105 million In Tip Pooling Case
Posted on March 21, 2008The award represents an estimated amount of cash from tip pools that shift supervisors received between October 2000 and February 2008. The plaintiffs maintained that the shift supervisors were considered managers under California law, and therefore improperly participated in sharing in the tips placed in the tip jar...
Chou v. Starbucks - Tip Pooling Case Continues In Trial
Posted on March 13, 2008Yesterday, the second phase of trial started in Chou v. Starbucks. The plaintiffs are asking the judge for restitution and interest to a class of about 120,000 Starbucks baristas who worked for the company since 2000.Initially, plaintiffs in Chou v...
Not Posting Much Lately
Posted on March 11, 2008I have not been posting as much as I would like recently, work has been very busy and I have been asked to speak in front of a few different employer groups recently. Tomorrow, I will be conducting a telephonic presentation for new managers on practical tips on how to comply with California labor and employment law...
CA Supreme Court Holds Individuals Not Liable For Retaliation In Jones v. The Lodge At Torrey Pines
Posted on March 03, 2008The California Supreme Court issued its ruling today in Jones v. The Lodge At Torrey Pines. The Court held: In Reno v. Baird (1998) 18 Cal.4th 640 (Reno), we held that, although an employer may be held liable for discrimination under the California Fair Employment and Housing Act (FEHA) (Gov...
Jones v. Torrey Pines Supreme Court Opinion Forthcoming Monday
Posted on February 29, 2008The California Supreme Court announced today that on Monday, March 3, 2008, it will issue an opinion in Jones (Scott) v. The Lodge At Torrey Pines Partnership. The issue in this case is whether an individual be held personally liable for retaliation under the California Fair Employment and Housing Act (Gov...
Court Strikes Down Plaintiff's Attempt to Recover $46,000 In Attorney's Fees For $45 (rounded up) In Unpaid Wages
Posted on February 28, 2008In Harrington v. Payroll Entertainment Services, Inc. (2008) __ Cal.App.4th __, Plaintiff brought suit against his employer for $44.63 in unpaid overtime, which was eventually settled for $10,500. After the settlement, the plaintiff (read the plaintiff’s lawyer) asked the trial court for about $46,000 for his attorneys’ fees...
California Legislature Proposes Paid Sick Leave Law To Cover Every Employee In California
Posted on February 28, 2008Assemblywoman Fiona Ma (D-San Francisco) introduced bill AB 2716 last week. If passed, would provide paid sick leave to any employee who works for seven or more days each year - the only such law in the United States. Employees would accrue sick time at the rate of one hour for every 30 hours worked...
Teleconference On Facebook, MySpace, and Other Websites to Scope Out New Hires
Posted on February 26, 2008I would like to thank everyone who participated in the BLR teleconference this morning. It was a pleasure speaking to everyone. Due to the great interest in this topic, we will be conducting the seminar again on at least one one occasion, maybe two...
Teleconference On Using Facebook, MySpace, and Other Websites to Scope Out New Hires
Posted on February 26, 2008I would like to thank everyone who participated in the BLR teleconference this morning. It was a pleasure speaking to everyone. Due to the great interest in this topic, we will be conducting the seminar again on at least one one occasion, maybe two...
US Supreme Court Tackles Employment Law Cases This Week
Posted on February 19, 2008Today, the Court will hear argument in Gomez-Perez v. Potter, on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints. For more information about the facts of the case, click here...
Why Every Client Should Want A Lawyer Who Blogs
Posted on February 13, 2008Teri Rasmussen posted an article recently on her blog that has received a lot of attention on the Internet recently. She explains why a client should want their lawyer to blog. In summary, her reasons are: 1. Knowledge Entrepreneur. The blogging/blawgging attorney is just going to know MORE about more issues because they have a concrete personal stake and commitment beyond the needs of any particular client to find stuff out...
Can Internet User Protect His Or Her Identity Under The First Amendment?
Posted on February 11, 2008As employment litigators, we are finding ourselves dealing more and more with Internet related issues, such as an employer’s right to monitor employees’ computer usage, and an employee’s privacy rights to information posted on the Internet...
Vick's Case Is A Good Reminder About Treatment of Bonuses Under CA Law
Posted on February 04, 2008Jailed quarterback Michael Vick can keep nearly $20 million in bonus money he received from the Atlanta Falcons following a ruling today by a federal judge. While Vick’s case involved interpretation of the NFL collective bargaining agreement, how bonuses are treated is often a sticky area of the law for California employers...
California Supreme Court Holds that Employers May Terminate Employees For Use of Medical Marijuana
Posted on January 29, 2008Last week, the California Supreme Court held that it is not a violation of California law for an employer to terminate an employee who tests positive for marijuana, even though the employee was prescribed the marijuana for medical purposes under California’ Compassionate Use Act of 1996...
CNN Money.com Reports On Overtime Liability
Posted on January 23, 2008CNN Money.com reports that many companies across the U.S. are encountering wage and hour issues that California companies are all too familiar with. The article reports: Rod Cotner, owner of Jericho Mortgage in Lancaster, Ohio, was shocked when the U...
Hidden Risks of Using Facebook, MySpace, and Other Websites to Scope Out New and Prospective Hires
Posted on January 17, 2008On February 26, 2008, I will be presenting a nation-wide teleconference entitled “Hidden Risks of Using Facebook, MySpace, and Other Websites to Scope Out New and Prospective Hires" through BLR. More information can be found at BLR’s website here...
New Case Decision On Witness Contact Information Disclosure In Class Action Litigation
Posted on January 17, 2008On January 15, 2008, the Court of Appeal in Puerto v. Superior Court (Wild Oats) [PDF] [Word], concluded that an opt-in notice established by the trial court as a process to obtain witnesses' residential contact information "unduly hampered" plaintiffs' in conducting discovery...
2008 California Law Update and Supreme Court Cases To Watch
Posted on January 11, 2008Below is a brief summary of some of the more relevant employment laws taking effect in 2008 and a summary of the Supreme Court cases that will have great ramifications for employers in 2008.Minimum Wage IncreaseAs written about previously here, the California minimum wage will be increased to $8 per hour starting January 1, 2008...
San Francisco's Health Care Mandate Given Green Light By Appellate Court
Posted on January 10, 2008The Golden Gate Restaurant Association (GGRA) challenged certain provisions of the newly enacted San Francisco Health Care Security Ordinance, contending that they are preempted by the federal Employee Retirement Income Security Act of 1974 (“ERISA”)...
Reminder - Employers Must Use New I-9 Form Starting December 26, 2007
Posted on December 20, 2007All U.S. employers must use the new Form I-9 beginning next week on December 26, 2007. Failure to transition to the new form could result in penalties. The new I-9 can be downloaded from the US Citizenship and Immigration Services' website here...
California Labor Commissioner Files Multi-Million Dollar Suit Against Janitorial Companies
Posted on December 20, 2007In a press release issued by the California Department of Industrial Relations, the agency announced that it has filed a joint lawsuit against Excell Cleaning & Building Services, Inc., and MO Restaurant Cleaning of California, Inc. The lawsuit is seeking damages for unpaid wages and penalties going back to 2003 for janitors who worked for the company...
English-Only Amendment Blocked By US House
Posted on December 19, 2007The House of Representatives recently passed a $516 billion omnibus spending measure that addresses a number of issues, including the funding of various Cabinet departments and the funding of U.S. troops in Afghanistan. In passing the omnibus bill – which President Bush is expected to eventually sign – Democratic lawmakers were successful in blocking an amendment that would have barred the government from suing employers who try to enforce English only workplace rules...
Court Denies Employee's Attorney Fees For Tort Claims
Posted on December 19, 2007Apart from being an informative warning about some tactics used by car dealerships to increase the price paid by consumers by using “legs” or “payment packing” techniques, the court’s opinion in Casella v. Southwest Dealer Services, Inc...
After Kakani v. Oracle Are "Claims Made" Class Settlements Obsolete?
Posted on December 14, 2007In Kakani v. Oracle, 2007 WL 1793774 (N.D.Cal. 2007), Judge Alsop of the Northern District of California denied approval of a proposed class settlement agreement. In doing so, he cast doubt on so-called “claims made” or “reversionary” settlement agreements that are commonly used to settle wage and hour class actions...
Reminder - California Minimum Wage Increases Jan. 1 and Impacts Exempt Employees
Posted on December 07, 2007As a simple reminder, employers should begin to plan to adjust their payroll systems in order to ensure that all California employees are paid the new minimum wage of $8 per hour starting January 1, 2008. With this increase, California will tie Massachusetts for the highest minimum wage rate in the country...
CA Supreme Court Grants Review In Harris v. Superior Court
Posted on November 29, 2007The California Supreme Court granted review of Harris v. Superior Court. As previously posted about here, the only legal issue reviewed by the lower appellate court was the proper construction and application of the single phrase limiting exempt administrative duties to those that are “directly related to management policies or general business operations...
IRS Mileage Rate Set For 2008
Posted on November 28, 2007The IRS announced the standard business mileage rate for 2008 is 50.5 cents per mile. The IRS posted the following on its website yesterday: The Internal Revenue Service today issued the 2008 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes...
Much To Be Thankful For
Posted on November 21, 2007For it is true that everywhere men turn their eyes today much of the world has a truly wild and savage hue. No man, if he be truthful, can say that the specter of war is banished. Nor can he say that when men or communities are put upon their own resources they are sure of solace; nor be sure that men of diverse kinds and diverse views can live peaceably together in a time of troubles...
No "No-Match" Letters For The Rest Of The Year
Posted on November 20, 2007The Department of Homeland Security (DHS) announced last Friday that it will not be issuing "no-match" letters for the remainder of the year. The reasons for staying the process of sending out the letters is due to the recent court decision blocking new regulations proposed by the DHS...
UPDATE: House Passes Employment Non-Discrimination Act
Posted on November 09, 2007The House of Representatives passed the Employment Non-Discrimination Act (ENDA) yesterday by a vote of 235 to 184. As stated in a previous post here, ENDA would ban employment discrimination based on an individual's sexual orientation although the version of the Bill passed by the House, H...
The EEOC's Hard Times Continue
Posted on November 07, 2007You may have read some of our posts (here for example) about the EEOC’s recent losses and/or dressing downs by the courts. Well, the hits keep on coming, and now it is the U.S. Supreme Court chastising the EEOC for the way it conducts business...
Gattuso v. Harte-Hanks: Positive Ruling for Employers
Posted on November 06, 2007In Gattuso v. Harte-Hanks, the California Supreme Court shed some light on the relatively unexamined issue by the courts of expense reimbursement. At issue in the case was whether Harte-Hanks could reimburse its outside sales force for mileage by paying a higher “lump sum” in the form of wages and/or commissions, as opposed to paying a specified sum for each mile driven...
California Enacts Military Spouse Leave Law (Effective Immediately)
Posted on November 05, 2007Governor Schwarzenegger recently signed California Assembly Bill (AB) 392 into law. That bill creates a new leave of absence right for spouses of military personnel while those personnel are on a leave of absence from deployment. Specifically, the military spouse law provides that: Employers with 25 or more employees in the United States to allow eligible employees to take up to 10-days off from work, on an unpaid basis, when his/her spouse is on leave from deployment during a period of military conflict; Eligible employees are defined as employees who work at least an average of 20 hours per week and whose spouse is a member of the United States Armed Forces, National Guard, or Army Reserve on active duty in an area of military conflict; Employees must provide notice to the employer within 2 business days of receiving official notice that his/her spouse will be on a leave from deployment...
Background Checks and References
Posted on November 04, 2007An employer’s obligations in conducting background checks and providing references for former employees is an extremely nuanced area of employment law and could expose an employer to significant liability. As explained below, conducting background checks/reference checks is critical for employers to defend themselves from negligent hiring/supervision claims...
Gattuso v. Harte-Hanks Supreme Court Decision Forthcoming Next Week
Posted on November 02, 2007The California Supreme Court announced today that it will be issuing a decision on November 5 at 10:00 a.m. in the closely watched mileage reimbursement case. The Supreme Court issued the following notice: GATTUSO (FRANK) v. HARTE-HANKS SHOPPERS, INC...
Three Family Leave Bills Vetoed By Governor
Posted on October 16, 2007California employers should breath a sigh of relief as Governor Schwarzenegger vetoed three bills that provided for expanded leave rights under California law. Two of the bills vetoed by the Governor - AB537 and SB727 - proposed to expanded both the unpaid and paid leave programs to include care for a sibling, mother- or father-in-law, grandparent or grandchild...
How To Stop An Ex-Employee From Spreading Rumors Via the Internet
Posted on October 15, 2007How can a company prevent a former employee from spreading false rumors about the company on the Internet? One answer, as according to Kevin O’Keefe, is counter intuitive. Kevin’s answer to the question in a bit, but first: What are the legal options a company can take to prevent an ex-employee from gossiping about the company on the Internet and possibly hurting the company’s reputation? In California, generally speaking there is not much a company can do...
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Can a former employee use photographs of jobs completed whie working for me in marketing material for a new business?
There are several issues here
1. Sub contractor started up a compe...
I have worked for this employer for only three weeks. The employer makes up his own rules as to what he chooses to report for the purpose of property taxes. He tells me to "let them come after us". He defines Entertain
He arrogantly insists, "let them come after us." Well, if you are invo...
I was fired on June 3, 2002 in Massachusetts because I reported discriminatory behavior by the employer towards a particular nationality. In July I filed a discrimination/retaliation complaint against the employer with t
It seem sin your case that the fact you filed the complaint prior to being dissa...
How can an employer defend themselves for firing an employee who contends the company exposed him to hazardardous atmospheres although medical testing has been negative?
You'll need to contact OSHA to determine your responsibility as far as the work ...
How can traffic laws for loud car stereo sound system be enforced (California traffic ticket)?
i just got one of those tickets today and its about 50$ which is really gay beca...
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