News and Events

UPCOMING SEMINAR August 2010

Complying with procedural rules to keep your challenge on track

How To Register:

The webinar will be presented through GoToWebinar. To register, follow this link:

https://www2.gotomeeting.com/­register/­323803323

If you have questions, please email Nicole Schard at nrs@barkerolmsted.com or call her at (619) 682-4040.

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		August 2010 Update Drop An F-Bomb, Forfeit Unemployment? Employees Discharged For Profanity May Be Disqualified From Receiving Unemployment Benefits A foul-mouthed employee may cross the line into willful misconduct territory, disqualifying him from receiving unemployment benefits if terminated. This article explores the California EDD’s regulations concerning the issue. Disability Accommodation / Workers’ Compensation Update: Court Flushes Sewage Facility Employee’s Accommodation Claim The ADA and the California Fair Employment and Housing Act require employers to engage in an interactive process with disabled employees in order to determine whether a reasonable accommodation may be offered. What happens if the employee does not initiate the process? Does the employer still have an obligation to offer an accommodation? A recent California appellate court addressed this question in a case titled Milan v. City of Holtville. Independent Contractor Update: Drivers Are Employees Despite Independent Contract When it comes to making some kinds of workers independent contractors, the old saying about putting lipstick on a pig comes to mind. Sometimes an employee is an employee no matter how he is dressed up to look like an independent contractor. A transportation company found this to be the case in a recent decision published by the federal Ninth Circuit Court of Appeal. Wage and Hour Update: Employer Beats Hypertechnical Wage Statement Class Action The California Labor Code is very specific about what information must be included on an employee’s wage statement (paystub). For example, an employer is required to list the “total hours worked” during the pay period—but is it sufficient to list the total regular hours and the total overtime hours, or must the employer also list the total combined hours? A California court recently addressed this issue in a case titled Morgan v. United Retail. Court Awards Attorney Fees To Prevailing Employer In Wage Claim Lawsuit. Litigation can be a losing proposition even for employers with strong defenses, what with legal fees and other costs. Many employment laws entitle the winning employee to recover fees, but do not provide the same remedy for winning employers. But there are a few exceptions. A recent California appellate court case titled Kirby v. Immoos examined one such exception in the context of a Labor Code claim for wages. Download the entire August 2010 Legal Update in PDF format:
		Legal_Update_August_2010.pdf

		July 2010 Legal Update FMLA Update: DOL Defines “Son or Daughter” For FMLA, Includes Non-Traditional Parents. When employees need to take time off to care for a son or daughter with a serious medical condition, many employers do not realize that the FMLA provides a very broad definition of “son or daughter.” A manager who has the traditional biological definition in mind may inadvertently deprive an employee of FMLA rights. A recent Department of Labor opinion letter highlights and perhaps expands this broad definition. U.S. Supreme Court Strengthens Employer Arbitration Rights; Meanwhile, Congress Seeks To Prohibit Such Agreements. Over the years courts have scrutinized the terms of employer/employee arbitration agreements, sometimes finding certain terms to be too unfair to the employee. Formulating enforceable terms of an employer-employee arbitration agreement—that is, an agreement that the courts will agree to uphold—has been very challenging. One question courts have grappled with is who gets to decide whether the arbitration agreement is enforceable? Is the court? Or does the arbitrator decide without any court intervention? The U.S. Supreme Court recently addressed that question in a case titled Rent-A-Center, West, Inc. v. Jackson. U.S. Supreme Court To Decide Whether Title VII Protects Employee’s Fiancée. The U.S. Supreme Court has agreed to review a case where an employee claimed he was illegally fired because his fiancée filed an EEOC charge. The case, titled Thompson v. North American Stainless LP, follows on the heels of another retaliation case decided by the Court. Regardless of the outcome of this case, employers should keep the facts of this case in mind when responding to discrimination claims. Does At Will Status Include Demotions and Salary Reductions? You know that at will employees can be terminated for any legal reason, or no reason at all. But what about decisions short of termination—demotions, salary decreases, bonus determinations—are those decisions “at will” too? A recent California court addressed that question in a case titled Singh v. Southland Stone. Click link below to download PDF version of the July 2010 Legal Update
		Legal_Update_July_2010.pdf

		June 2010 Legal Update Wage and Hour Update: Employer’s Per Diem Pay Scheme Violates Overtime Rules Overtime pay rules are deceptively simple. Take the concept of the “regular rate.” For example, in a recent federal Fifth Circuit Court of Appeal case titled Gagnon v. United Technisource, Inc., an employer got burned in an overtime lawsuit for paying an improper “per diem” which should have been included in the employee’s regular rate. Background Screening Update: EEOC Issues Letter Cautioning Employers Against Discriminatory Use Of Credit Checks; Legislation May Soon Follow Employers routinely conduct credit checks as part of pre-employment screening. Sometimes this information is used to make hiring decisions. Can an applicant who is denied a job based on a credit report claim “discrimination”? California Employment Law Update: California Legislature Seeks New Employer Restrictions; Cal Supreme Court Defines “Employer” The California legislature has been busy cooking up new proposed laws that would restrict employers’ right to use credit checks, and to add criminal penalties for the late payment of final wages. Meanwhile, the California Supreme Court has published a case analyzing the meaning of “employer.” How Does Health Care Reform Apply To Small Businesses? Although advocates of the recent federal healthcare reform have emphasized that employers are not mandated to provide coverage for employees, that is only half true. Beginning in January 2014, large employers will be penalized if they do not provide healthcare. What does the new law have in store for small employers? DOL Regulation Requires Federal Contractors to Post Notice of Unionization Rights Federal contractors and subcontractors are now required to inform employees of their rights under the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. Download entire June 2010 Legal Update in PDF format:
		Legal_Update_June_2010.pdf

		May 2010 Legal Update FMLA and ADA Update: Employer Attendance Policies Can Lead To Liability Under FMLA and ADA In this article we focus on the concept of the common employer practice of attendance/absence point systems. If you have such a system, it is important to ensure that it does not run afoul of the FMLA and ADA. Two recent cases reported below illustrate the possible pitfalls. After reading these articles, review your policies and determine whether you need an update. What California Employers Need To Know About New Federal Lactation Accommodation Little surprises can be found in the massive new federal health care legislation—like lactation accommodation. What do California employers need to know about this employee right? IRS Publishes FAQ To Help Employers With Two New Tax Benefits Aid Employers Who Hire and Retain Unemployed Workers The HIRE act provides employers with two tax credits for hiring workers this year. The IRS has published a helpful FAQ to guide employers on their eligibility for the credits. California and Federal Law Regarding Teenage Employment During The Summer. As the school year ends in a few days, teenagers are looking for summer jobs. Make sure you are aware of state and federal laws regulating the employment of minors. Download entire May 2010 Legal Update in PDF format:
		Legal_Update_May_2010.pdf

		April 2010 Legal Update ADA Update: Drunk Police Chief Not Protected By ADA. When an off duty employee gets drunk and causes an automobile accident, can the employer discipline or terminate the employee even if he claims that he is an alcoholic protected by the ADA? In a Seventh Circuit Court of appeal case titled Budde v. Kane County Forest Preserve, the court considered this question in a discrimination case filed by a police chief. Employment Screening Check on Megan’s Law Website Leads To Sexual Abuser’s Lawsuit Megan’s Law websites allow the public to search databases and learn the identity of sex offenders in their communities. But there are restrictions on the use of the data. In California, the information can’t be used for employment purposes. Recently a California appellate court determined whether or not a sex offender had the right to sue an employment screening service for accessing a Megan’s law website. FMLA Update: Who Decides Whether The Employee Is Sick Enough For FMLA Leave? An employee may be entitled to a protected leave of absence under the FMLA when she has a serious “medical condition” during a “period of incapacity.” Who decides whether the employee is incapacitated? A doctor? The employee? A recent case titled Schaar v. Lehigh Valley Health Services, Inc. wrestled with this issue. Pregnancy At Work: A Review Of California Employer Obligations EEOC statistics show that pregnancy discrimination claims are on the rise. The rules in California are slightly different than under the federal FMLA. This article reviews two important distinctions. Download the entire April 2010 Legal Update in PDF format:
		Legal_Update_April_2010.pdf

		March 2010 Legal Update Wage and Hour Update: Staffing Company Misapplies Administrative Exemption To Account Execs When an employer classifies a group of employees as exempt under state and federal wage and hour law, that decision is subject to challenge by the employees or a government agency. The wrong decision can result in expensive litigation and huge liability. In a recent California case titled Peligrino v. Robert Half International, a California appellate court ruled that the employer had misclassified its account executives under the administrative exemption. The court also invalidated an employee agreement reducing the statute of limitations (time to sue) to six months. Employment Litigation Update Survey Illustrates Cost of Defense and Liability In Employment Discrimination Claims What is the average cost of a legal defense in an employment discrimination case? What is the average verdict? A recent study released by UCLA-RAND Center for Law and Public Policy included a survey of defense costs and jury awards in California employment law discrimination cases. California EDD Update: Procedural Blunder Thwarts Employer’s EDD Tax Appeal When the California EDD takes on a company for misclassifying employees as independent contractors, the battle starts on the EDD’s own turf, in an administrative review process. Ultimately, a company can appeal a tax determination to the courts, but only if the right procedures are followed. In a case titled Merchandising Concept Group, Inc. v. EDD, the employer did not follow the correct procedure and therefore could not challenge the EDD’s tax assessment. Paid Leave Update: California Supreme Court Limits Kin Care Law California has a leave law known as “kin care.” It allows employees to use ½ of their annual sick leave entitlement to attend to the illness of a child, parent, spouse or domestic partner. What if a company does not offer an accrued sick leave benefit, but instead offers sickness absence policy, which provides for an uncapped number of paid days off for illness? The California Supreme Court addressed this question in a case titled McCarther v. Pacific Telesis. Download the entire March 2010 Legal Update in PDF format:
		Legal_Update_March_2010.pdf

		February 2010 Legal Update Wrongful Termination Update Employee Protected From Termination After Making False Overtime Claim An employee claims that he worked overtime, but an investigation reveals that his claim is false. The employee claims he made a mistake, but the company concludes otherwise. He should be terminated, right? Not so fast. California law might offer protection to such an employee. In a case titled Barbosa v. Impco Technologies, a California appellate court found that complaining about missing overtime can be a protected activity, and that firing the complainer may be a wrongful termination. Discrimination Law Update: Hotel Chain Guilty of Sex Discrimination For Firing Homely Clerk Are ugly people protected by law? They might be, if an employment decision is made based on sex stereotypes. While reasonable grooming and dress standards may be appropriate, standards that are dependent on stereotypical views of sexual attraction, or unduly burden one gender more than the other, may violate state and federal anti-discrimination laws. In an Eighth Circuit federal case titled Lewis v. Heartland Inns of America, the court examined this issue. Federal Agency Employment Law Update The government has published updated model forms for the recently extended COBRA subsidy. The EEOC has published new discrimination statistics showing increased claims in certain categories. The IRS has decreased the mileage reimbursement rate. Download the entire February 2010 Legal Update in PDF format:
		Legal_Update_February_2010.pdf

		January 2010 Legal Update California Supreme Court Rounds Out 2009 With Two Employment Law Cases The California Supreme Court rounded out 2009 with two important employment law decisions. In a case titled Schacter v. Citigroup, the Court considered whether California law permits an employer to design an incentive pay plan calling for forfeiture of pay for employees who quit or are fired for misconduct before an established date. In Roby v. McKesson, the Court scrutinized the fine line between workplace discrimination and harassment. Congress Extends COBRA Subsidy Though preoccupied with national healthcare legislation, Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act. California Appellate Court Follows Cal Supreme Court, Rejecting Sexual Harassment Case Not all sexual conduct in the workplace is “sexual harassment.” It is a question of degree. An employer who sexually harasses an employee can be liable for damages under both federal law and California law when the sexually harassing conduct is so “pervasive or severe” that it alters the conditions of employment. What kind of conduct is sufficiently “severe?” What makes conduct “pervasive” enough to qualify as sexual harassment? In a case titled Haberman v. Cenage, Inc. , A California appellate court recently answered these questions, and in doing so applied the rules stated in the 2009 California Supreme Court titled Hughes v. Pair. California Earned Income Tax Credit Notice Must Be Delivered This Month As a reminder, because of legislation effective January 1, 2008, California employers who are required to provide unemployment insurance must notify all employees that they may be eligible for the federal Earned Income Tax Credit (EITC). A model notice is available for download. Download the entire January 2010 Legal Update in PDF format:
		Legal_Update_January_2010.pdf

		Employer's Essential 2010 Labor & Employment Law Update 2009 California New Labor & Employment Laws. Though the legislature in Sacramento proposed plenty of labor and employment legislation in 2009, relatively few bills were signed into law. This article the new laws of major significance. 2009 New Federal Labor & Employment Laws. “Few but mighty” characterizes new federal labor and employment law in 2009. The Lilly Ledbetter Fair Pay Act dramatically changed the nature of pay discrimination claims. ARRA extended subsidized COBRA benefits to millions of workers. GINA added a new form of “protected category” in discrimination. And FMLA amendments expanded the reach of military family leave. 2009 Government Agency Employment Law Opinions and Regulations. The California DLSE gave new flexibility to employers by condoning salary reductions for furloughed exempt workers, and by clarifying that alternative workweek schedules can be limited to summer months. On the federal level, E-Verify and No-Match were the big issues. 2009 California Supreme Court Labor & Employment Law Cases. In 2009, the California Supreme Court tackled workplace privacy, sexual harassment, same sex marriage, class action lawsuits, and incentive pay forfeiture. 2009 U.S. Supreme Court Labor & Employment Law Cases. In 2009, the U.S. Supreme Court tackled reverse discrimination, age discrimination, sexual harassment/retaliation, and arbitration. Download the entire December 2009 Legal Update in PDF format by clicking the link below:
		Legal_Update_December_2009.pdf

		November 2009 Legal Update Pregnancy Discrimination Update: Trial Court Erred By Barring Important Employer Defense To Discrimination What is a “mixed motives” defense? Lawyers often refer to this defense in the context of discrimination cases, and it is important for employers to understand this legal concept when making personnel decisions. A recent California case titled Harris v. City of Santa Monica turns on this defense. An appellate court has ruled that the trial court erred by refusing to instruct the jury on the mixed motives defense. California Labor And Employment Legislation Fizzles In 2009 The California legislature proposed a number of new labor and employment laws in 2009. However, as the politicians battled through a major budget meltdown, the bills either stalled in committee or were vetoed by the governor. This article provides a summary of the more significant ones—it’s worth reviewing them because they may well come back in 2010. GINA Becomes Effective In November; EEOC Publishes New Poster The Genetic Information Nondiscrimination Act (“GINA”) becomes effective this month, on November 21, 2009. Review the EEOC’s FAQs regarding the new law, and be sure to download the new poster referenced in this article. Grocer Liable After Uninformed Supervisor Fails To Provide Accommodation To Disabled Employee When an employer grants a reasonable accommodation to a disabled employee, what happens if an uninformed supervisor later fails to provide that accommodation? In a recent California case titled A.M. v. Albertsons LLC, that very thing happened, and the employer was held liable for failing to provide an accommodation. The case offers important lessons for employers who offer accommodations to disabled employees. Download the entire November 2009 Legal Update in PDF format:
		Legal_Update_November_2009.pdf

		October 2009 Legal Update California DLSE Approves Salary Reduction for Furloughed Exempt Workers. With the economy in flux, businesses are looking for ways to reduce payroll without losing talent. Some companies have put their hourly workers on a “work furlough” by reducing the number of hours or days in a weekly schedule. But can the same be done for salaried exempt workers? Normally, salaries cannot be adjusted based on the number of hours worked in a workweek. The answer is yes, according the California’s Division of Labor Standards Enforcement (“DLSE”) in a new opinion letter. Employer Tort Liability Update: Employer Held Liable For Employee Auto Accident During Commute Home. An employee was returning home after a three-day business conference. He left the airport and was driving his regular commute route home when he was involved in a car accident that injured two pedestrians, and killed a third person. Is the liable for the accident? The court in Jeewarat v. Warner Bros. Entertainment, Inc. examined the question of whether an employer is liable according to the “special errand” doctrine. Federal ADEA Update: Company Liable For Discriminatory Hiring Practices Of Third Party Recuiter. If a company retains an outside recruiter to interview and hire employees on its behalf, can the company be held liable if the recruiter engages in discriminatory practices? In a Second District Court of Appeals case titled Halpert v. Manhattan Apartments, Inc, the court considered whether the ADEA creates such liability. ADA Update: Fitness For Duty Exam Tangles Employer In ADA Violation. Under the ADA, an employer may not require a current employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.” This rule applies to all employees, whether or not they are disabled under the ADA. Confusion persists, however, over what “counts” as a medical examination. A recent Ninth Circuit Court of Appeals case titled Indergard v. Georgia-Pacific Corp. examined the issue and applied a very liberal standard. Computer Security: Employer Fails In Attempt To Use Federal Law Against Data-Stealing Employee. Most of the articles in our Legal Update report on cases involving employees suing employers, but sometimes the roles are reversed. LVRC Holdings, LLC (LVRC) was an employer that went on the offensive against two former employees. In a case titled LVRC Holdings v. Brekka, the employer filed a lawsuit in federal district court against its former employee, Christopher Brekka, for improperly accessing data in violation of the federal Computer Fraud and Abuse Act (CFAA). Download the entire October 2009 Legal Update in PDF format:
		Legal_Update_October_2009.pdf

		September 2009 Legal Update Privacy Law Update: Cal Supreme Court Approves Workplace Video Monitoring. Employers with good intentions of keeping the workplace safe and secure have the means at their disposal to keep tabs on employees. Gadgets once relegated to 007 films are available to monitor a worker's every move. However, as one employer recently learned in the case Hernandez v. Hillsides, Inc., such efforts may collide with an employee's right to privacy. Wage and Hour Update: Travel Time Not Compensable; But After Hours Data Upload Should Be Paid. As a general matter, employees are not compensated for regular commute time. But sometimes the line between commuting and “on the clock” driving may be hard to define. Moreover, it is not always clear whether an employee must be compensated for performing minor tasks before or after shifts. A recent case titled Rutti v. LoJack provides a good example of just how fuzzy the line can be. Pregnancy Discrimination Update: Sea Captain Unlawfully Terminates Pregnant Shipmate. Neither California law nor federal law offers special protection to pregnant employees from termination due to poor performance or from reductions in force. However, where pregnancy is the motivating factor for termination, the adverse action is unlawful. In a case titled SASCO Electric Co. v. California Department of Fair Employment and Housing, the layoff of a pregnant employee was ruled to be unlawful. Anti-Retaliation Law: Sarbox Whistleblowers. The Sarbanes-Oxley Act of 2002, sometimes called Sarbox or SOX, is a federal law enacted in 2002, as a reaction to a number of major corporate and accounting scandals including Enron and WorldCom. The statute includes whistleblowing protection for employees who raise concerns about certain financial and accounting issues. In a recent Ninth Circuit case titled Van Asdale v. International Game Technology, the court examined the whistleblowing provisions and examined its nuances. Wage and Hour Review: Should Your Volunteer Student Interns Be Paid? Avoiding State and Federal Wage Liability. A college student contacts the manager of your marketing department and inquires whether she may volunteer as a student intern for the fall semester. She is an upperclassman majoring in journalism and she is familiar with your design software. She could really help with the backlog of work in the department, including filing, some bookkeeping, and a little bit of writing. You can’t beat the price. Should you take her up on her offer? Before hiring a volunteer student intern, consider state and federal law. If the criteria described in this article are not met, you are required to pay the student at least minimum wage. Download the entire newsletter in PDF format:
		Legal_Update_September_2009.pdf

		August 2009 Legal Update Executives Of Bankrupt Company Personally Liable For Employee Wages. State and federal employment law is complicated and compliance can be tricky. Your company can be hit with expensive lawsuits. But what about you, personally? If the company violates the law, can you be held financially accountable? Yes, sometimes. A recent Ninth Circuit Court of Appeals case titled Boucher v. Shaw illustrates how certain company managers may be held personally liable for violations of federal wage and hour law. Cal Supreme Court Rejects Sexual Harassment Claim; Conduct Not Severe or Pervasive. Not all sexual conduct in the workplace is “sexual harassment.” It is a question of degree. An employer who sexually harasses an employee can be liable for damages under both federal law (title VII of the Civil Rights Act of 1964 (Title VII)) and California law (the Fair Employment and Housing Act (FEHA)) when the sexually harassing conduct is so “pervasive or severe” that it alters the conditions of employment. What kind of conduct is sufficiently “severe?” What makes conduct “pervasive” enough to qualify as sexual harassment? The California Supreme Court recently answered these questions in a case titled Hughes v. Pair. School Wrongfully Terminates Administrative Employee Over Class Size Violation. When an employee complains about illegal conduct, or refuses to engage in unlawful conduct, an employer may not retaliate by terminating the employee. Such a termination violates public policy and can give rise to a lawsuit for wrongful termination. What exactly does it take for an employer to cross the line and terminate in violation of public policy? In a recent case titled Scott v. Phoenix Schools, Inc. provides a useful illustration. California Employers Shrug At Federal Minimum Wage Increase. The federal minimum wage increase is of little importance to California employers, but they should still post the new federal poster. Download the complete Legal Update in PDF format:
		Legal_Update_August_2009.pdf

		July 2009 Legal Update California Wage and Hour Update: Company Sued By Its Temp Workers For Time Spent At Security Checkpoint A recent California federal district court ruling in a case titled Cervantes v. Celestica Corporation addresses two wage and hour issues: (1) Must employees be compensated for pre- and post-shift time spent waiting in line at a security checkpoint? (2) Under California and federal wage and hour law, may temporary workers sue their temp agency as well as the company to whom they are assigned? The district court ruling is a trial court level decision, and therefore it is not binding precedent on other California courts. Nevertheless, it provides a useful illustration for employers to consider when reviewing their own policies and practices. Discrimination Update: US Supreme Court Rules For White Firefighters In Race Bias Case Is there such a thing as “reverse” race discrimination in the workplace? Yes. “Reverse discrimination” is not term found statutory prohibitions against job discrimination, but it is commonly understood to mean giving preference to minority employees at the expense of Caucasian employees. With few exceptions, discriminating against white employees is no less illegal than discriminating against minority employees. The U.S. Supreme Court recently addressed this issue in a case titled Ricci v. DeStefano. The case was filed by white firefighters who alleged that they were unfairly denied promotions because of their race. U.S. Supreme Court Raises Employee Burden In Age Bias Cases On June 18th, the U.S. Supreme Court issued a significant employment law decision that will make it more difficult for an employee to prove a case of intentional discrimination under the Age Discrimination in Employment Act (“ADEA”) as compared to the burden required under Title VII of the Civil Rights Act of 1964. California Appellate Court Adds New Dimension To Tip Pooling Rules In a case titled Chau v. Starbucks, a California appellate court has added a new dimension to rules regarding tip pooling in California.
		Legal_Update_July_2009.pdf

		June 2009 Legal Update California’s Discrimination Claim Rate Outpaces National Average. California’s Department of Fair Employment and Housing (DFEH) published an annual report in May, and the statistics reveal a much higher rate of some types of employee discrimination claims than is seen on the national level. Cal/OSHA Warns Employers About Heat Illness Safety Compliance. In a recent press release, Cal/OSHA has reminded employers to implement heat illness prevention policies, and warns them about agency enforcement measures. School Lawfully Rejects Instructor’s Request For Disability Accommodation. When an employee notifies an employer that he has a disability and needs accommodation, the employer is obligated to offer reasonable accommodations. What if the employee wants an “unreasonable” accommodation? In a recent case titled Scotch v. The Art Institute of California-Orange County, Inc. the employer defeated a disability accommodation lawsuit by demonstrating that it offered a reasonable accommodation, and that the employee was unable to establish any other alternative reasonable accommodations. Same-Sex Couples Retain Employment Law Rights Despite Supreme Court Ruling. The California Supreme Court issued a ruling in late May upholding Proposition 8. Does this ruling affect employee rights in the workplace? California and Federal Law Regarding Teenage Employment During The Summer. As the school year ends in a few days, teenagers are looking for summer jobs. Make sure you are aware of state and federal laws regulating the employment of minors. Download the entire June 2009 Legal Update in PDF format:
		Legal_Update_June_2009.pdf

		May 2009 Legal Update How to Release Liability for Wage Claims in California. When an employer pays money to an employee asserting a legal claim, it expects to receive a release of liability in exchange. A valid release for wage claims can be tricky in California because the Labor Code places limits on the right to release such claims. A recent case titled Watkins v. Wachovia Corporation illustrates that a valid release is possible only in the context of a “bona fide dispute.” California Employment Law Legislative Update. Change is constant when it comes to California labor and employment law. Employers should keep an eye on the following legislation currently pending in Sacramento in the areas of alternative workweek schedules, mandatory paid sick leave, “California Ledbetter” and more. Federal Employment Law Legislative Update. 2009 is a year of change in the area of labor and employment law. Employers should keep an eye on several bills are pending at the federal level in the areas of paid FMLA leave, the EFCA, and E-Verify. Plumbing Contractor Not Liable For Former Employee’s Criminal Act. When a company negligently hires and retains a worker with dangerous propensities, it can be held liable for harm that the worker causes to customers, co-workers, or others. What if the employee commits the act after he is terminated? A recent California appellate court addressed this issue in a case titled Phillips v. TLC Plumbing, Inc. U.S. Department of Labor Pursues Employer of Misclassified Independent Contractors. The U.S. Department of Labor is one of several government agencies that may take issue with improper classification of workers. A recent case illustrates how the Department may hit employers hard for misclassification. U.S. Department of Labor Update: Time Spent After Hours In Online Training Must Be Paid Must an employer pay its employee wages for after-hours time spent attending training? Yes, under some circumstances, according to the U.S. Department of Labor and California’s Division of Labor Standards Enforcement. EEOC’S Proposed GINA Regulations Limit ADA Inquiries The federal Genetic Information Nondiscrimination Act (“GINA”) require employers to change their current practices regarding the acquisition of medical information. Practices that have been permissible under the ADA will no longer be permissible on account of GINA. The EEOC’s recently published proposed regulations make this challenge apparent. Indian Tribe Business Subject to Federal Wage Law. A Ninth Circuit court of appeal has concluded that the overtime provisions of the Fair Labor Standards Act (“FLSA”) applies to a business located on an Indian reservation and owned by Indian tribal members. The court also ruled that the United States Department of Labor has the authority to enter the Indian reservation to inspect the books of that business for enforcement purposes. Download the entire May 2009 Legal Update in PDF format by clicking the link below:
		May_2009_Legal_Update.pdf

		April 2009 Update California Employee Leaves Update: Not All New FMLA Regulations Apply In California The U.S. Department of Labor published new regulations governing the Family Medical Leave Act (FMLA). The rules became effective on January 16, 2009. Because California has a separate statutory and regulatory scheme, the new FMLA regulations do not uniformly apply here. The California agency responsible for regulating CFRA, the Fair Employment and Housing Commission, issued a statement and a chart comparing the two Acts and their regulations. Arbitration Update: California Court Trashes Waste Disposal Company’s Arbitration Agreement A California appellate court has refused to enforce an employer/employee arbitration agreement in a wage and hour class action involving meal and rest periods. The appellate court’s opinion, Franco v. Athens Disposal Company, Inc., expands on a 2007 California Supreme Court case titled Gentry v. Superior Court. COBRA Subsidy Update: IRS Clarifies Law; Also: Model Notice Forms Available; Cal-COBRA Employers Get a Break The COBRA subsidy called for in ARRA is available to certain employees who are subject to an “involuntary termination.” What does that phrase mean? The IRS has published its interpretation of this phrase and several other aspects of ARRA. Also, model notice forms are now available, and there is good news for Cal-COBRA employers. Download the entire April 2009 Legal Update in PDF format:
		Legal_Update_April_2009.pdf

		March 2009 Legal Update COBRA Obligations Expanded; Economic Stimulus Bill Adds Premium Subsidy Employers’ obligations under COBRA have been significantly increased by the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama. This article provides a summary of the new obligations and offers compliance tips. Disability Law Update Employer’s ADA Analysis Too Restrictive, Says Ninth Circuit Employers struggle with the definition of “disability” under the federal ADA. Most people in the HR field know that an ADA disability is a physical or mental condition that substantially limits a major life activity, but this definition is of little use when it comes to determining whether a particular employee is disabled. As the employer discovered in a recent Ninth Circuit case, Rohr v. Salt River Project Agricultural Improvement and Power District, an overly restrictive interpretation of the definition leads to litigation. Wage and Hour Update: Tip Pooling Not Limited To Restaurants Tip pooling is the practice of taking customer gratuities and dividing the money among employees. In California, the practice is allowed, but particular rules apply, including the prohibition against supervisor participation. California courts have allowed the practice to take place in restaurants. Is tip pooling allowed in other contexts? A California appellate court answered the question in the context of a casino in a case titled Lu v. Hawaiian Gardens Casino. Wage & Hour Update: Do After-Hours Emails Create Employer Wage Liability? Wage and hour class actions have been built upon seemingly minor issues. How about this one: Should non-exempt employees be paid for time spent after hours reviewing business-related emails on their PDAs? This article explores the possibilities and offers some practical tips for employers. Denial of California Unemployment Benefits for Making Unjustified Complaints Where an employee is terminated for excessive griping about working conditions, hours, wages, co-workers, supervision, or any one of a variety of things, may the employee be disqualified for unemployment benefits for willful misconduct? Yes, in certain circumstances. This article explains how. Click link below to download the Update in PDF format:
		Legal_Update_March_2009.pdf

		February 2009 Legal Update President Signs Federal Fair Pay Act. In a move that could lead to a significant increase in employment litigation, on January 29th President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. Notably, it was the first act that he signed into law upon taking office. The Act negates a 2007 U.S. Supreme Court decision relating to the statute of limitations (deadline to sue) for pay discrimination claims. The case was titled Ledbetter v. Goodyear Tire & Rubber Co., Inc. This article highlights the new law’s provisions. Sexual Harassment Update: U.S. Supreme Court Protects Investigation Participant From Retaliation. Both federal an California law protect employees who oppose illegal harassment or discrimination, as well as employees who participate in an investigation. What exactly does it mean to “oppose” a practice? The U.S. Supreme Court examined this question in a decision published on January 26, 2009 titled Crawford v. Metropolitan Government of Nashville. FMLA Update: Department of Labor Publishes “Qualified Exigency” Military Leave Form. The Department of Labor has published a new form for use in connection with "qualified exigency" leave under the FMLA's recently added military family leave. Labor Law Review: With Wage Garnishments On The Rise, Employers Must Avoid Retaliatory Discharges. During these tough economic times, as employees fall into debt, employers may see an increase in wage garnishments. Can an employer terminate an employee if the wage garnishments become a nuisance? The answer is: "It depends." Read this article for details. Sexual Harassment Compliance Review: Workplace Romance. As Valentines Day approaches, some of your employees are getting into a romantic mood—perhaps with their co-workers. Your killjoy lawyer asks a question: Should an employer be concerned about workplace romances? Wage & Hour Update: Failure To Pay Travel Expenses Costs Starbucks Millions. A recent class action brought by Starbucks employees serves as a reminder to employers on the topic of travel expenses. The federal court employee class action alleged that Starbucks failed to reimburse employees for their travel expenses. Employers should take steps to avoid the same fate. Wage & Hour Update Appellate Court Rules No Punitive Damages For California Wage & Hour Violations. Violations of California’s wage and hour laws are costly. Aside from liability for unpaid wages, the Labor Code imposes cumulative penalties, interest and attorney fees. But what about punitive damages? Can a jury award Labor Code penalties plus punitive damages on top? A California appellate court in San Diego recently addressed this question in a case captioned Brewer v. Premier Golf Properties. Cal/OSHA Update: Reminder To California Employers To Post Form 300A. The Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH) has issued a press release reminding California employers to post at their place of business a summary of work-related injuries and illnesses during 2008. Is your company required to post? Click below to download a PDF version of the Legal Update:
		Legal_Update_February_2009.pdf

		January 2009 - Employer's Essential 2009 Legal Update Happy New Year! This issue reports new state and federal laws in effect for 2009 affecting employers. Among developments on the federal level, the ADA and FMLA have been amended, new FMLA regulations are in effect, and GINA, a new federal law, bans genetic discrimination. At the California state level, we report less dramatic changes and additions to employment law, mostly in the area of wage and hour law. We also look back on 2008 and review significant court decisions that will affect the way you interact with your employers. Discrimination law looms large. As companies are forced to lay off workers, prepare for an increase in discrimination and wrongful termination claims. Thank you for your ongoing interest in this publication. I especially appreciate all of the feedback, comments and questions. I will endeavor to keep you updated in 2009 through this publication, educational seminars, and one-on-one consultation. New California Laws In Effect For 2009 We report on the new California laws in effect for 2009 affecting employers. In the scheme of things, it was a mild year legislatively for labor and employment law. A new Labor Code section regulates how temporary agencies pay temp workers. Computer professionals may be exempt from overtime if paid on a salary basis at a certain level. The Labor Code adds new restrictions on the type of waivers employees may sign, and more. 2009 Federal Labor & Employment Law Legislative and Regulatory Update 2009 brings significant legislative and regulatory changes to federal employment law. The ADA was amended, expanding coverage for disabled workers. New FMLA regulations clarify employers’ and employees’ obligations in connection with medical/family leave, and also add details regarding the new military family leave. Genetic information discrimination is a new protected class according to the Genetic Information Nondiscrimination Act (“GINA”). At a more mundane level, the IRS has adjusted its mileage reimbursement rate, and USCIS will publish a new Form I-9. 2008 California Supreme Court Labor and Employment Law Cases A review of significant 2008 California Supreme Court decisions that will affect the way you interact with your employers. The Court addressed major issues related to discrimination, medical leave, noncompetition agreements, and more. 2008 U.S. Supreme Court Labor and Employment Law Cases A review of significant 2008 U.S. Supreme Court decisions in the area of labor and employment law. The Court addressed major issues related to Federal Arbitration Act preemption, Section 1981 claims, ADEA affirmative defenses, and more. Download the newsletter in PDF format:
		Legal_Update_January_2009.pdf

		December 2008 Legal Update FMLA UPDATE: Department of Labor Updates FMLA Regulations. The U.S. Department of Labor has published new regulations governing the Family Medical Leave Act (FMLA). The rules are effective on January 16, 2009. This article provides a summary of the more significant changes. CAL FEHA UPDATE: Sexual Orientation Discrimination - Co-Worker Misconduct: Once a Harasser, Always A Harasser. When an employee alleges sexual harassment, an employer has an obligation to investigate and promptly stop the harassment. But even where the employer stops the sexual harassment, the employer may face a lawsuit if the accused continues to engage in workplace shenanigans. Potentially any sort of subsequent misconduct by the accused directed at the victim, even if it is not sexually loaded, may be viewed as another form of harassment. The recent California appellate case Dominguez v. WaMu provides an illustration. WAGE & HOUR UPDATE: Out of State Residents Subject To California Labor Law While Working In State. If a company sends its out-of-state employees to work on an assignment in California, does the California Labor Code apply during the assignment? The answer, according to the federal Ninth Circuit in a case captioned Sullivan v. Oracle Corp., is “yes.” LABOR LAW UPDATE: The Likely Rise Of Unionization In The New Political Environment. Political analysts believe that Congress is likely to pass legislation titled the Employee Free Choice Act ("EFCA") sometime in 2009, perhaps as early as the first 100 days of the new administration. The President-elect co-sponsored the legislation, and it is reasonable to expect him to sign it into law. Download the entire December 2008 Legal Update in PDF format:
		Legal_Update_December_2008.pdf

		November 2008 Legal Update WAGE & HOUR UPDATE: California Meal And Rest Period Rules In Limbo---Again. The California Supreme Court has granted review of a pro-employer meal and rest period case, Brinker Restaurant v. Superior Court. The Court may take a year or more to mull over the matter; in the meantime, California employers are left guessing about this baffling aspect of labor law. WORKPLACE RIGHTS UPDATE: Employee Voting Rights. Just in time for Election Day, we answer the following question: "A couple of my employees insist that they are permitted to take time off from work to vote on Election Day. Do I have to give them the time off?" DISCRIMINATION LAW UPDATE: Employer Hit With Age and Sex Discrimination Lawsuit After RIF But Employees’ Claims Fail – Mostly. Tough economic times have forced employers to layoff employees. Layoffs can lead to litigation when employees allege that illegal discrimination tainted the reduction in force selection process. A recently published case out of the federal Tenth Circuit Court of Appeals, Sanders v. Southwestern Bell Telephone LP, provides an illustration of this problem. FMLA COMPLIANCE REVIEW: Right to Reinstatement. At the end of an FMLA leave, an employer must usually take an employee back into the same or an equivalent job. The same rules apply under the California Family Rights Act (“CFRA”). This article includes a review of the employer’s obligations. EEOC UPDATE: EEOC Has Broad Power To Subpoena Employer Records. When the EEOC files an administrative charge of discrimination against an employer, it frequently will demand that company records be produced. It will often ask for a description of computer data. If the company does not voluntarily comply, the EEOC may issue an administrative subpoena seeking to force production of the records. This article reviews a recent case, EEOC v. Federal Express, which illustrates just how broad this power can be. UNEMPLOYMENT BENEFITS UPDATE: EDD Offers Alternative To Layoffs For California Employers. The EDD offers what it calls a "Work Sharing Unemployment Insurance program." The program allows eligible employers to reduce hours of workers, and offers the employees partial unemployment benefits. This article addresses FAQs relating to that program. Download the entire November 2008 Legal Update in PDF format:
		Legal_Update_November_2008.pdf

		October 2008 Update ADA Update: President Bush Signs Legislation Amending ADA President Bush signed legislation on Thursday, September 25th significantly amending the federal Americans with Disabilities Act. The President signed the legislation shortly after the House of Representatives passed the legislation on Wednesday. Workplace Policies Update: California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies. California has banned text messaging while driving, and employers need to respond promptly by updating policies.. FMLA UPDATE: Employer Not Required To Play “Sherlock Holmes” To Detect FMLA Leave Ideally, when an employee wants to take FMLA leave, he or she should specifically ask for it. But that does not always happen. Sometimes the employer is left guessing. A number of FMLA cases have held that employers are on notice of FMLA leaves when they receive information about serious medical conditions, extended hospital stays, or indication that the employee is too disabled to request leave. Independent Contractors Update: Worker Deemed Independent Contractor; Wrongful Termination Claims Fail. One of the advantages of hiring properly classified independent contractors is that they have no standing to file employee lawsuits alleging wrongful termination, certain discrimination claims, and other causes of action that are dependent on employee status. ADA Upate: New EEOC Publication Addresses Thorny ADA Issues What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee? A new EEOC guide tackles this thorny issue. Download the entire October 2008 Legal Update in PDF format:
		Legal_Update_October_2008.pdf

		September 2008 Update FAMILY MEDICAL LEAVE UPDATE: Hospital Visit Should Have Alerted Employer To CFRA Coverage. California employers covered by the California Family Rights Act (“CFRA”) must promptly respond to employee requests for leave. But what happens when the qualified employee never actually requests leave? A recent California appellate court decision, Avila v. Continental Airlines, says that the employer may still need to grant CFRA protections if the employee provides mere hints of CFRA coverage. BENEFITS UPDATE: Sick Pay To Remain A Benefit, Not Entitlement---For Now. Is sick pay an employee entitlement or a benefit? In California, AB 2716, a bill seeking to make sick pay an entitlement that all employers must provide has died in the Senate. But it will be back. DISABILITY DISCRIMINATION UPDATE: Cal Supreme Court Lets Stand A Key Disability Ruling. The California Supreme Court denied a petition for review in a case titled Arteaga v. Brink’s Incorporated, letting stand an appellate court ruling that circumscribed the definition of “disability” under California law. EMPLOYEE AGREEMENTS UPDATE: Common Non-Competition Agreement Provision Now Invalid. A recent California Supreme Court case, Edwards v. Arthur Anderson, has eliminated one common term of noncompetition agreements. What protections does an employer still have? CIVIL RIGHTS UPDATE: Religious Beliefs No Defense To Unruh Act Discrimination Claims. The California Supreme Court recently addressed the issue of employee religious beliefs vs. customer civil rights in a San Diego case titled North Coast Women’s Care Group, Inc. v. Superior Court. IMMIGRATION LAW UPDATE: ICE Continues Enforcement Trend With Largest Raid Ever. Federal immigration authorities conducted the largest single-workplace immigration raid in U.S. history on August 25, 2008. Will the employer’s management face criminal charges? WAGE AND HOUR LAW UPDATE: New Law Modifies Temporary Agency Employee Paydays; Companies Hiring Temps Should Confirm Compliance. SB 940, effective January 1, 2009, allows staffing agencies to pay temporary employees on regular paydays, rather than at the conclusion of each assignment. A USERRA UPDATE: Arbitration Agreement Covers USERRA Claim; Will California Courts Follow? In a federal Sixth District case, Landis v. Pinnacle Eye Care, the court determined that USERRA claims are subject to employee arbitration agreements. Will California follow this rule? To download the Legal Update in PDF format, click below:
		Legal_Update_September_2008.pdf

		August 2008 Legal Update WAGE AND HOUR UPDATE: California Appellate Court Fixes Meal and Rest Period Rules But Employers Might Wait To Change HR Practices. In California, what is the employer’s obligation with respect to employee meal and rest periods? Must an employer force its employees to take these breaks, or is it enough to make them available for employees who are interested in taking them? A San Diego case titled Brinker v. Superior Court has given an answer that favors employers. But employers may not want to change personnel practices too soon. LABOR LAW UPDATE: Cal Labor Commissioner Cites Company For Not Providing Lactation Accommodation To Employee In 2002, the California legislature amended the Labor Code to mandate that employers provide “lactation accommodation.” Yes, we regulate everything here in the Golden State. In the six years following enactment of the law, no known enforcement actions had been initiated. Hopefully the reason is because employers have been complying with the law. However, the Labor Commissioner recently cited a California employer. Read the full article for details. LABOR LAW UPDATE Department of Labor Opinion Examines Uniform Rules, Determines Whether Restaurant Must Pay For Shoes. The Department of Labor has released a new opinion letter in which it examines a company policy specifying employee shoes. The questions posed are: (1) Are the shoes part of a uniform, such that the employer must pay for them? (2) May the employer arrange for the purchase of the shoes and deduct the cost from the employee’s pay? Read the article for the answers. FMLA UPDATE: Handbook Language May Create FMLA Obligations For Ineligible Employees. What does your employee handbook say about leaves of absence? If it erroneously promises FMLA rights, the company may be bound to extend those rights to employees, even if the company is not covered or the employee is not eligible. A federal Seventh Circuit court in Indiana recently came to this conclusion in a case titled Peters v. Gilead Sciences, Inc. PAYROLL UPDATE: DLSE OK’s Payment Of Wages By Debit Cards And Money Checks California’s labor enforcement agency, the DLSE, has approved the use of debit cards and money checks for payment of wages. ENFORCEMENT UPDATE: Wage and Hour Division Criticized. The U.S. Department of Labor’s Wage and Hour Division has failed to effectively enforce federal wage laws, according to a Government Accountability Office report issued on July 15th, 2008. DISCRIMINATION LAW UPDATE: EEOC Publishes Guidelines on Accommodation of Religion In Workplace. The EEOC recently published updated guidelines and fact sheets regarding religious discrimination in the workplace and the employer’s obligation to provide reasonable accommodation. To download the Legal Update in PDF format, click below:
		Legal_Update_August_2008.pdf

		July 2008 Legal Update Wage & Hour Update: Employer Wins Holiday Pay Lawsuit. Some employers provide premium pay to employees who work on holidays. Where employees earning holiday pay work overtime, what are the overtime rules? A California appellate court case titled Roman v. Advanced-Tech Security Services, Inc. answered that question. Click here for the article: California Holiday Pay Rules. Workers’ Compensation Update: Employer’s Right To Limit Chiropractic Treatments. Labor Code section 4604.5(d) limits injured workers to 25 chiropractic visits unless the employer approves more. A California appellate court recently upheld the constitutionality of this limitation. Click here for the article: Workers’ Comp Chiropractic Treatment. Discrimination Update: New DFEH Director Aims to Reinvigorate Department. California’s civil rights agency, the Department of Fair Employment and Housing, has announced an ambitious three year plan to step up enforcement of the state’s antidiscrimination laws. Click here for the article: DFEH Enforcement Plan. Sexual Harassment Update: Requests For Coffee Prompts Female Employee To Sue For Sexual Harassment. Under Title VII of the Civil Rights Act of 1964, sexual harassment need not involve sexual conduct. It could involve hostile treatment of an employee because of gender. Does a manager cross the line where he requires a female subordinate to serve him coffee? Click here for the article: Sexual Harassment Update. Employee Privacy Update: Review Of Employee Text Messages Deemed Invasion Of Privacy. Employees may have a reasonable expectation of privacy in the workplace. Although company privacy policies may put employees on alert that communications are subject to monitoring, operational realities may negate those policies. Click here for the article: Text Message Privacy. Employment Policies Update: Employers Urged To Update Cell Phone Policies. California’s new hands free cell phone law has been much publicized. Employers should consider implementing policies and update employee handbooks to cover the use of cell phones while driving. Click here for the article: Cell Phone Policy. FMLA Compliance Review: Employer’s Written Response To Leave Request. When an employee covered by FMLA or CFRA requests leave, the employer should provide a written response. The U.S. DOL provides a form which can be used or adapted by the employer. Click here for the article: FMLA Employer Response Form. Click here to download the entire newsletter in PDF format:
		Legal_Update_July_2008.pdf

		June 2008 Legal Update Disability Law Update: Armored Truck Company Has Ironclad Defense To Disability Lawsuit Employers frequently experience the following scenario: Employee is suspected of wrongdoing. Employer investigates and decides to terminate Employee. At the eleventh hour, before he is fired, he claims that he is injured and disabled. He files a workers’ compensation claim. Employer wants to fire Employee, but is concerned about the appearance of discrimination and retaliation. Has the employee trapped the employer? A California appellate court, in a case titled Arteage vs. Brink’s Incorporated, grappled with this question. Click here for the full story: Disability Law Update Labor Enforcement Update: DIR Targets Workers’ Compensation Violations The California Department of Industrial Relations has announced an intent to step up enforcement against employers for workers’ compensation violations. Companies using independent contractors might be included as targets. Click here for the full story: Labor Enforcement Update Construction Law Update: Legislature May Modify Mechanic’s Liens The California legislature is considering a bill, Senate Bill 1691 that would dramatically impact subcontractors and suppliers. The impact would require these potential mechanic's lien claimants to take more care and to monitor events at the jobsite more closely than is currently required. There would also be changes to the current laws that would swing the pendulum closer to owners. Click here for the full story: Construction Law Update Discrimination Law Update: Tortilla Maker Accused of Religious Discrimination A group of Muslim workers allege they were fired by a tortilla factory for refusing to wear uniforms that they say were immodest by Islamic standards. Employers are reminded, by this example, of their obligation to reasonably accommodate religious beliefs and practices. Click here for the full story: Religious Discrimination Law Update Labor Law Update: DOL Releases New Online Legal Assistance Program The Department of Labor issued the press release below concerning a new online tool that may be useful to determine which federal laws apply to the employer. Click here for the full story: Labor Law Update Discrimination Law Update: New Federal Genetic Information Non-Discrimination Act In May President Bush signed The Genetic Information Nondiscrimination Act of 2008 ("GINA") into law. The law prohibits employers from making employment decisions based on genetic information, and also regulates how employers handle such information. Click here for the full story: Genetic Information Non-Discrimination Act California and Federal Law Regarding Teenage Employment During The Summer As the school year ends in a few days, teenagers are looking for summer jobs. Make sure you are aware of state and federal laws regulating the employment of minors. Click here for an overview of the laws: Child Labor Laws Download Entire Legal Update in PDF format:
		Legal_Update_June_2008.pdf

		MAY 2008 UPDATE Employee Leaves of Absence Update: California Supreme Court Rules That Third Medical Opinion Is Optional But Should Employers Take the Shortcut? In the case Loniki v. Sutter Home Health Care, the California Supreme Court has answered the following question: Does an employer’s failure to invoke the CFRA’s dispute-resolution mechanism of having a health care provider jointly chosen by the parties determine the employee’s entitlement to medical leave bar the employer from later claiming that the employee did not suffer from a serious health condition and was capable of performing her job? Click here: Employee Leaves of Absence Update. Wage and Hour Update: Are You Personally Liable For Labor Code Violations? Appellate Court Limits Personal Liability The California Labor Code gives employees the right to sue their employers for overtime, minimum wage violations, missed meal periods, and more. Are individual corporate owners, officers and managers personally liable for violations? The court in Bradstreet v. Wong has eliminated one such avenue of personal liability--but do other avenues remain open? Click here: Wage and Hour Update. Benefits Update: Will Sick Leave Become Mandatory In California? Employers in California are not obligated to offer sick pay to employees. The benefit is entirely optional—for now. Some politicians in Sacramento aim to make sick pay benefits mandatory with AB 2716. Click here: Employee Benefits Update. Employment Agreement Update: At Will Agreement Defeats Termination Claim In a case titled Bernard v. State Farm, a California court considered whether an internal review process defeated a company's at will policy. Click here: Employment Agreement Update. Enforcement Update: California DLSE Continues Industry Sweeps, Several Hundred Thousand Dollars In Fines Assessed The California Division of Labor Standards Enforcement (“DLSE”) and other government agencies have continued the practice of targeting specific industries with surprise audit sweeps. Recently it has raided local restaurants and auto body shops, but other industries are on its hit list. Click here: Enforcement Update. Employee Leaves of Absence Update, Part 2 Second Part Time Job Does Not Preclude Leave Rights In Lonicki v. Sutter Health Central, reported in Section 1 of this issue, the California Supreme Court examined a second question regarding CFRA leaves of absence. Can an employer deny leave to an employee who is perfectly capable of working a second job? Click here: Leaves of Absence Update. Download the entire Update in pdf format:
		Legal_Update_May_2008.pdf

		APRIL 2008 UPDATE Cal Supreme Court: Supervisors Not Personally Liable for Retaliation Under FEHA The California Supreme Court handed a major victory to employers in a case titled Jones v. The Lodge at Torrey Pines. The court issued a ruling on the long debated issue of whether supervisors are individually liable for retaliation under California's Fair Employment and Housing Act (FEHA). Click here: Retaliation Liability. Wage and Hour Update: Court Serves a Bitter Brew to Coffee Chain A local San Diego court has ruled in favor of employees in a case involving tip pooling rules. What are the rules in California concerning employee tips? Click here: Wage and Hour Update. EEOC Update: Job Bias Statistics Released The EEOC has released discrimination statistics for 2007. What are the notable trends in discrimination claim filings? Click here: EEOC Update. Litigation Update: Attorney Fee Awards Favor Employers In employment law cases, attorney fee awards often add insult to injury for employers. But once and a while, the employer avoids fees or even is awarded fees against the employee. Read about two such recent cases. Click here: Litigation Update. Employee Privacy Update: Pre-Employment Drug Test Deemed Unconsitutional The Ninth Circuit has ruled that a municipality's pre-employment drug test was unconstitutional in Lanier v. City of Woodside. Is California private sector drug testing in jeopardy? Click here: Employee Privacy Update. Wage and Hour Update: Pro-Ration of Minimum Salary for Part-Time Exempt Employees Disallowed The U.S. Department of Labor recently issued an opinion letter on the topic of pro-rated salaries for exempt employees. Click here: Wage and Hour Update. Compliance Review: Employee Computer Use Policies Check your policy for compliance and recommended provisions. Click here: Employee Policy Compliance Review. Unemployment Benefits Update: Part-Time Workers When part-time employees apply for unemployment benefits, the employer may request a part-time ruling. Click here: Unemployment Benefits Update. Download entire Legal Update in PDF format:
		Legal_Update_April_2008.pdf

		LEGAL UPDATE MARCH 2008 FMLA Amended The FMLA has been amended to include military family leave of up to 26 weeks. Click here: FMLA Update. Sexual Harassment Update In a recent unpublished California appellate court case, Orlando v. Alarm One, Inc., the court examined this question: is spanking employees sexual harassment? The answer has implications of general application, so read on even if you work in a spank-free environment. Click here: Sexual Harassment Update. Arbitration Update Certain state laws require that some employment disputes must be brought in a judicial or administrative forum. What happens when the employer and employee have signed an arbitration agreement stating that disputes must instead be heard before an arbitrator? A recent U.S. Supreme Court decision, Preston v. Ferrer, held that the Federal Arbitration Act preempts state law. Click here: Arbitration Update. Wage and Hour Update Do you know which wage order applies to your company? If not, find out now. In California, wage orders are wage and hour regulations imposed by the California Industrial Welfare Commission (IWC). Read an FAQ to determine if your company is in compliance. Click here: Wage and Hour Update. Immigration Update The federal governmant has dramatically increased civil fines against employers for immigration violations. Click here: Immigration Update. Payroll Law Update Labor Code Section 212 contains particular--and peculiar--rules regarding paychecks. Find out how paychecks drawn on an out-of-state bank may violate the code. Click here: Payroll Law Update. Download the entire Legal Update in PDF format:
		Legal_Update_March_2008.pdf

		LEGAL UPDATE FEBRUARY 2008 Workplace Romance As Valentines Day approaches, some of your employees are getting into a romantic mood—perhaps with their co-workers. Your killjoy lawyer asks and answers a question: Should an employer be concerned about workplace romances? Click here: Workplace Romance. Voting Time Off The California presidential primary elections are fast approaching on February 5, 2008. California law requires employers, in limited circumstances, to allow employees time off to vote. Learn the rules and make sure that you are complying with the posting requirements. Click here: Voting Time Off. Cal Supremes “Weed” Out Medical Marijuana Ross v. Ragingwire. California voters legalized the use of medical marijuana in 1996. Does that mean employers must hire pot smokers who claim that they are protected by disability discrimination laws? Click here: Medical Marijuana. FMLA Update: Employer’s Defense to Reinstatement Fails When an employee covered by the FMLA or CFRA returns from a protected leave, she is ordinarily entitled to reinstatement to the same or equivalent position. What if the employee’s position is eliminated during the leave? Click here: FMLA Reinstatement. USERRA Update: Release Agreement Impossible In California Perez v. Uline, Inc. A California court rules that employer cannot enforce a severance agreement waiving the employee’s right to sue over USERRA violations. Click here: USERRA Release. Arbitration: The Devil Is In The Details Mitri v. Arnel Management Co. A California court has refused to enforce an employer’s arbitration policy described in the employee handbook in the absence of a signed employee acknowledgement of the arbitration agreement. Click here: Employee Arbitration Agreements. Denial of Unemployment Benefits for Making Unjustified Complaints Where an employee is terminated for excessive griping about working conditions, hours, wages, co-workers, supervision, or any one of a variety of things, may the employee be disqualified for unemployment benefits for willful misconduct? Download Legal Update in PDF format:
		Legal_Update_February_2008.pdf

		LEGAL UPDATE JANUARY 2008 As we all compose New Year’s resolutions for 2008, the attorneys at Barker Olmsted & Barnier propose adding one more for the employers among you: don’t get sued! How? Well, for starters, keep up to date on developments in labor and employment law. This edition of our Legal Update brings you up to speed. New Laws In Effect For 2008 We report on the new laws in effect for 2008 affecting employers. There are new notice requirements, higher—and lower—wage rates, new leave of absence rights, and more. (By the way: more significant are the bills that did not become law. Governor Schwarzenegger vetoed a slew of laws that would have made employers cringe.) Click here: New Employment Laws 2008. 2007 California Supreme Court Labor and Employment Law Cases We also look back on 2007 and review significant court decisions that will affect the way you interact with your employers. Wage and hour law looms large. Click here: California Supreme Court Employment Law Cases for the article. Resolve To Perfect Your Estate Plan And, on a personal level, we encourage you to resolve to review your estate planning status. Need encouragement? Here's some: we'll offer to review your current estate plan free of charge, to let you know if it needs refining or revisions. Estate Plans. We will endeavor to keep you updated in 2008 through this publication, educational seminars, and one-on-one consultation. Please let us know if you have any particular issues of concern. Have a happy and prosperous 2008! Download entire Legal Update:
		Legal_Update_January_2008.pdf

		Legal Update December 2007 Wage and Hour Update: Cal Supremes Permit Payment of Expenses By Enhanced Compensation. The California Supreme Court recently ruled in a case titled Gattuso v. Harte-Hanks that employers may reimburse employees for expenses by a “lump sum” method instead of by an actual-expenses-incurred method. However, practical application of the new rule may be challenging. Click here: Employee Expenses. Will California Go To Pot? Can an employer fire an employee who purports to smoke marijuana for medical reasons? The California Supreme Court recently heard oral arguments in a case that will answer this question. Read about the Chief Justice’s telling observation and see if you can predict whether California employees will soon be lighting up. Click here: Medical Marijuana. New Form I-9 Effective Immediately The U.S. Government has published a new Form I-9, which all employers must begin using immediately. Download the form for free, and review FAQ regarding its use. Click here: Form I-9. FMLA Update: Constructive Notice of Need For Leave Where an employee requests a leave of absence because of a serious health condition, the employer’s obligations under FMLA and California’s CFRA are fairly straightforward. But does the employer have FMLA/CFRA obligations when an absent employee never specifically asks for leave? The answer, in some circumstances, may be “yes.” Find out when. Click here: FMLA Notice. USERRA Update A Senate Committee is investigating after the Department of Defense released startling data regarding the prevalence of USERRA violations. Find out what the data tells us. Also, we offer a free form relating to California’s new military spouse leave. Click here: USERRA Violations. Holiday Parties – Eat, Drink, Be Merry, But Avoid Lawsuits! It is time to celebrate, but make sure you follow a few tips to avoid spoiling the party with legal violations. Click here: Liability for Company Parties. Top Ten Mechanic’s Lien Misconceptions Construction attorney David Barnier offers practical advice to construction contractors on how to best protect their important lien rights. Click here: Mechanic's Lien Barker Olmsted & Barnier APLC Pro Bono Legal Aid for Fire Victims We offer pro bono legal help for fire victims. Email Chris Olmsted at cwo@barkerolmsted.com Click the link below to download the entire Legal Update in pdf format.
		Legal_Update_December_2007.pdf

		PLUS - Professional Liability Underwriter Society Article December 2007 EPLI ALERT: NINTH CIRCUIT RULING MAY SPUR INCREASE IN MENTAL DISABILITY DISCRIMINATION CLAIMS A recent holding by the United States Court of Appeals for the Ninth Circuit protects workplace misconduct resulting from a disability, expanding the potential for employer liability under the Americans with Disabilities Act (“ADA”) and state laws such as the California Fair Employment and Housing Act (“FEHA.”) By Christopher W. Olmsted. Click here for article in PDF format:
		PLUS_Article.pdf

		New Leave Rights for California Military Spouses Below is a PDF of the text for AB 392, enacted into law in October 2007. The text is two pages in length--not too daunting. For more informtion on the new leave rights, see page one of our Legal Update for November 2007.
		AB_392_Military_Spouse_Leave_Text.pdf

		LEGAL UPDATE November 2007 California Creates New Leave Rights for Military Spouses Governor Schwarzenegger signed AB 392 into law, providing protected leave of absence rights to certain employees whose spouse is on leave from military deployment. This article provides summary of the new leave law provisions. We also offer the text of the new law and will offer an HR checklist and an employee leave request form to qualified Legal Update subscribers. Announcing Barker Olmsted & Barnier APLC Effective November 1, 2007, our firm name will change to Barker Olmsted & Barnier, APLC. The change follows the addition of David Barnier as a shareholder of the law firm. No Match is No Go The AFL-CIO has foiled the U.S. government’s attempt to implement a rule requiring employers to terminate employees unable to provide legitimate social security numbers. Read what's in store for the No Match rules. Sexual Harassment Update: Crew Lead Worker May Be Deemed “Supervisor” In the recent case Almanza v. Wal-Mart Stores, Inc., a court has ruled that even crew lead workers may be deemed “supervisors.” Learn what factors went into the determination. Thanksgiving Comes Early For California Employers: Schwarzenegger Vetoes Several Labor Law Bills This article summarizes the vetoed bills (just so you know what to be thankful for) and also highlights the few employment law bills that the governor signed. Waive Goodbye to Class Action Waivers A recent California appellate court decision follows Gentry and validates doomsayers predicting the death of class action waivers. Barker Olmsted & Barnier APLC Offers Pro Bono Aid To Fire Victims We offer free legal assistance for fire victims. Upcoming Seminars Leaves of Absence Seminar has been rescheduled to November 14, 2007. View the Update in PDF Format:
		Legal_Update_November_2007.pdf

		LEGAL UPDATE October 2007 Misbehaving Employees May Be Protected by ADA and FEHA. Is all employee misconduct subject to discipline? Maybe not, if a disability caused the misconduct. Learn about recent federal cases applying ADA accommodation rules. Workplace No Haven For Criminal Employee. Can an employer consent to a warrantless search and seizure of evidence in a criminal employee’s workspace? Find out how a California appellate court has addressed this thorny issue. Court Postpones Federal No-Match Rule. Hit the pause button on our headliner last month—the federal no-match rule is under court review. Why Go To The Trouble Of Setting Up A Living Trust? There are many good reasons for estate planning, and there’s no better time than the present. Reminder Regarding New Social Security Number Rule. Are you ready to implement the new rule effective January 1, 2008? California Legislature Sends New Employment Laws To Governor. Our politicians in Sacramento have been hard at work drafting new employment laws—will our governor spare California employers? Upcoming Seminars Last chance to register! California and federal law grant employees a multitude of leave rights. Our day-long seminar on October 25th will give you the tools to tackle them all. View the Update in PDF Format:
		Legal_Update_October_2007.pdf

		LEGAL UPDATE September 2007 No Match: No Job—DHS Issues New Employer Rules New federal rules for SSN no-match letters require employers to act promptly—or risk penalties. Immigration: I-9 Form Changes On The Way The list of acceptable documents authorizing employees to work in the U.S. may soon change. Recordkeeping: In The Home Stretch For The New EEO-1 Form Deadline Employers are running out of time to comply with EEO-1 requirements. Appellate Court PAGA Decision Facilitates Employee Lawsuits An appellate court has made it easier for employees to proceed under the so-called “Sue Your Boss” law. DLSE Files Spate Of Lawsuits Against San Diego Companies Local employers are alleged to have violated the Labor Code. Cal Supreme Court Sets High Standard For Enforcement Of Class Action Waivers A long-awaited ruling regarding class action waivers may cause employers to redraft their arbitration agreements. California Employers Win With New Disability Law Ruling The Supreme Court decides, in cases involving disability discrimination, whether employees or employers carry the burden of proof regarding the ability to perform job duties. Supreme Court Upholds Group Profit Sharing Incentive Plan A grocery store chain has the proper formula for awarding incentive pay to select employees. Upcoming Seminars California and federal law grant employees a multitude of leave rights. Our day-long seminar in October will give you the tools to tackle them all. Also, this month come learn how to deal with weird behavior in the workplace. View the Update in PDF Format:
		Legal_Update_September_2007_s.pdf

		LEGAL UPDATE August 2007 National Drug Abuse Survey Gives Sobering News to Employers. A new study by the Substance Abuse and Mental Health Services Administration (SAMHSA) reveals that workplace drug abuse is more extensive than you may think. Employers should evaluate whether to institute drug testing policies. Accommodation of Employees in Alcohol or Drug Rehabilitation Programs. The Labor Code requires some California employers to accommodate employees in drug rehab—is your company a covered entity? “Forced to Forgo” Standard for Meal Periods Adopted. Following on the heals of the California Supreme Court’s recent decision regarding meal period penalties, one federal district court’s against-the-tide decision helps one employer escape liability. Married Couples: Do You Have an Outdated Bypass Trust? As estate planning law has evolved, your estate plan may now be a dinosaur. Find out how to check your plan. Court Invalidates No-Hire Provision. A service provider’s attempt to prevent a client from hiring it technician falls afoul of California public policy voiding restraints on the right to work. Mechanic’s Lien Refresher Course There are strict rules for contractors seeking to secure their payment rights—see if you know your deadlines. Managing Unemployment Claims A recent EDD publication offers a few tips. October 2007 Leaves of Absence Seminar – Sign Up!! California and federal law grant employees a multitude of leave rights. This day-long seminar will give you the tools to tackle them all. View the Update in PDF Format:
		Legal_Update_August_2007.pdf

		U.S. DEPARTMENT OF LABOR FMLA REPORT Frustrated with FMLA? You are not alone. On June 28, 2007 the DOL issued a report summarizing over 15,000 comments made by members of the public. Both the Executive Summary and full report are fascinating reading for employers concerned about the serious shortcomings of the federal FMLA regulations. Link to Full Report Click below for the Executive Summary.
		ExecutiveSummary_FMLA_report.pdf

		LEGAL UPDATE July 2007 Well-Documented Misconduct Investigation Helps Defeat Discrimination Lawsuit. Some employees terminated for cause will claim that the employer devised trumped up charges as a means to discriminate. Find out how one employer defeated the claim. Tax Break for Emotional Distress Damages May Reduce Employment Case Settlements. Tax liability has a big impact on employment litigation. Learn about a recent case development that may affect settlements. Federal Minimum Wage Increase. Here’s one increase that you may not have to worry about. Maximizing the Effectiveness of Business Form Contracts. The small print does matter. How to use contract forms more effectively. Coffee Shop Chain Settles EEOC’s Failure to Accommodate Suit. EEOC claims victory in a case involving a bipolar barista. Federal Survey of FMLA Reveals Widespread Employer Frustration. Got the FMLA blues? You are not alone. Find out what 15,000 survey respondents had to say. Employment Law Reference Materials Available. Ask for our complimentary employment law reference materials. July 2007 Employment Law Seminars – Sign Up!! San Diego employment law attorney Chris Olmsted will be speaking at the following seminars in the near future: July 12th: California Wage and Hour Law Part I (breakfast presentation) July 26th: California Wage and Hour Law Part II (lunch presentation) July 19th: Employee Retention Strategies View the Update in PDF Format:
		Legal_Update_July_07.pdf

		LEGAL UPDATE June 2007 Inside this Issue: Failure to Provide Notice of Leave Rights Leads to Wrongful Termination Lawsuit FMLA and CFRA contain particular notice obligations--avoid the risk of litigation by carefully complying with the regulations. Deductions from Bonus Payments Do Not Negate Exempt Status A Department of Labor Opinion Letter permits deductions from salaried employees' bonuses under certain circumstances. California Legislature May Soon Add Familial Status to FEHA Expect an increase in lawsuits alleging Family Responsibility Discrimination (FRD). Federal Minimum Wage Increase Federal minimum wage has little impact on most California employers. State and Federal Regulations of Summer Jobs for Teenagers Employment of minors is heavily regulated by state and federal law. Before hiring a teenager, be sure to comply with the law. Employer Appeals From Labor Commissioner Must Be Handled With Care A Labor Commissioner award in favor of the employee may be appealed, but not without cost and risk. What is the downside? FIVE Upcoming San Diego Employment Law Seminars! June 21st, July 12, July 19, July 26th and October 25th-—sign up now!! View Update in PDF Format:
		Legal_Update_June_2007.pdf

		LEGAL UPDATE May 2007 Inside this Issue: No Free Lunch From Cal Supremes Meal and Rest Period Penalty rules decided in favor of employees, exposing employers to greater liability. Unlicensed Contractors Create Workers Comp Havoc How unlicensed contractors become your employees under workers’ compensation law. Employee Receiving Disability Pay During Leave Not Required to Use PTO Requiring employees to use company vacation, sick or PTO during protected leaves can violate the FMLA. DLSE Liberalizes “Learned” Profession Exemption New interpretation covers more employees. Vacation Policies Must Not Single Out Workers Comp Claimants A recent case illustrates how vacation policies can create discrimination claims. Advance Healthcare Directives Simple paperwork can help your loved ones make important decisions. New Sexual Harassment Training Regs California modifies and finalizes the rules for harassment prevention training. Four Upcoming Employment Law Seminars May 17th, June 21st, July 12 and July 26th—sign up now!! Download in PDF Format:
		Legal_Update_May_07.pdf

		LEGAL UPDATE April 2007 Inside this Issue: Mandatory Sick Leave May Be Contagious Labor Trend. Paid sick leave is already mandatory in some jurisdictions. Will Congress turn it into a national entitlement? Indian Casinos Susceptible to Some Labor Laws. Labor unions are chiseling away at tribes’ sovereign immunity. New 2007 EEO-1 Reporting Rules. Make sure that you know whether your company is covered and what to report. Unfashionable Employment Practice Costs Fendi. Retail store found to breach employment contract under guise of immigration law compliance. Bonus: Vacation Policy Checklist Now Available. California has peculiar laws regarding employee vacation policies. Our checklist provides compliance guidance. Estate Planning Boosts Control of Life Insurance. Estate planning may be necessary to control how your life insurance proceeds are paid. Employer Found Liable for Luring Employees Away From Competitor. Trucking company competitor sued for causing drivers to breach employment contracts. New Limits on Work Place Anti-Fraternization Rules. Is your policy worded too broadly? Four Upcoming San Diego Employment Law Seminars April 19th, June 21st, July 12 and July 26th—sign up now!! Download in PDF format:
		Legal_Update_April_07.pdf

		LEGAL UPDATE March 2007 Inside this Issue: Contractor Strategies for Maximizing the Leverage of Mechanic's Liens. Mechanic's liens can be a powerful tool. Construction law attorney David Barnier offers practical tips for maximum results. DOL Releases New Opinion Letters. See if your company's occupations are affected. Transferring Property Between Parent and Child. Before transferring real estate to your children, be sure that you know how to avoid reassessment of property taxes. DLSE Proposes Travel Expense Regulations. Proposed regulations may bring clarity to employer's obligations. See what's in store. Employer Found Not Liable For Employee's Misuse of Company Internet Service. What legal exposure does a company have for employee abuse of internet services? Lodge at Torrey Pines Hits One Into the Rough. Local employer gets hit hard for harassment/retaliation. Find out what went wrong. Employment Law Seminar: Employment Law "A to Z." Presented by Chris Olmsted and other San Diego employment law attorneys. June 21st-sign up now!! Download Update in PDF Format:
		Legal_Update_March_2007.pdf

		LEGAL UPDATE FEBRUARY 2007 FMLA By The Numbers. Two recent cases help employers do the math when determining leave eligibility. U.S. Department of Labor To Revise FMLA Regulations. Confused by leave regs? Help is on the way (maybe). Drug Company Discriminates But Dodges Harassment. California court articulates difference between discrimination and harassment, saving the employer millions. Court Applies State And Federal Retaliation Standard to L.A. DWP. California court applies the new state and federal retaliation standard, finding that an employee stated a valid claim. Paid Family Leave Claims Rise in 2006 Have you met your posting/notice obligations for PFL? Mediation of the Construction Case. Problems and strategies for settling construction disputes. Employment Law Seminar for Construction Contractors. Presented by San Diego employment law attorney Chris Olmsted. February 13th—sign up now!! Download the Update in PDF format:
		Legal_Update_February_2007A.pdf

		LEGAL UPDATE JANUARY 2007 Inside this Issue: 2007 Employment Law Update This edition of the Legal Update summarizes the significant new California employment laws and regulations for 2007. It also recaps significant employment law cases in 2006. Download Update in PDF Format:
		Legal_Update_January_2007_1.pdf

		_______________________________________________________ Legal Update Archives Want to read more? Click the links below to explore our publication in prior years.

Legal Updates 2006 - Click here

Legal Updates 2005 and earlier - Click here
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CONSTRUCTION LAW ARTICLES

"Reputed Owners and Notices of Completion: 30 Days or 90 Days to Record a Lien?” by David J. Barnier
"Two Tips to Help you Take Full Advantage of your Liability Rights" By David J. Barnier
"Solutions for Common Equipment Rental Contract Problems" by David J. Barnier
"Prejudgment Attachment: A Strategic Alternative to Awaiting Trial" by David J. Barnier
“ Legislature Doubles Labor Code Fine for Contracting with Unlicensed Contractor ,” by Christopher W. Olmsted (140 KB)
"Licensing Issues," By Robert Ilko