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News and Events
Read below for upcoming employment law seminars and recently published articles on a variety of legal topics.
Hint: If you are searching for a particular topic, try using Control-F to search for the term.
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Upcoming Webinar:
Workers' Compensation Leaves: How To Stay
Sane And Legal
Date: Wednesday, June 12, 2013
Time: 9:00 AM - 10:15 AM PST
Location: Online and Teleconference
Tuition: FREE!
Instructor: Christopher Olmsted, Esq., a labor/employment attorney and partner with Barker Olmsted & Barnier, APLC.
HR Continuing Education Credits and MCLE will be offered.
Does the thought of managing another employee on workers' compensation leave make you want to take your own leave of absence? It shouldn't be that way. Every employer needs a systemized approach, structured under state and federal employment law.
During this webinar, employment law attorney Chris Olmsted will describe your legal obligations and best strategies for administering workers' compensation leaves.
Topics Include:
- Navigating state and federal leave laws
- Proper initial response and communications with employee
- Medical certifications
- Dealing with uncooperative employees
- Managing prolonged absences
- What to do about bogus claims
- Avoiding or defending against retaliation claims
- Reinstatement and termination options
The presentation will focus on practical tips for compliance with the new regulations. There will be ample time for questions and answers.
After registering you will receive a confirmation email containing information about joining the Webinar.
Space is limited.
Reserve your Webinar seat now at:
https://www2.gotomeeting.com/register/429260194
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May 2013 Legal Update
Forum Selection Clause Set Aside By 9th Circuit Court
Employment contracts sometimes include forum selection clauses which determine where an employee lawsuit will be heard. In a recent case titled Petersen v. Boeing Company, a federal Ninth Circuit appellate court considered whether to enforce a clause requiring disputes to be heard in Saudi Arabia.
Arbitration Agreement Imperfect,But Good Enough To Enforce
Courts routinely review employee arbitration agreements for fairness. In California, in particular, courts are prone to invalidate such agreements and allow the suing employee to proceed with his or her lawsuit in court. Bucking the trend, a recent case titled Serpa v. California Surety Investigations, Inc., the reviewing court upheld the enforceability of an arbitration agreement, despite its flaws.
USCIS Issues New I-9 Form
Beginning May 7, 2013, employers are required to use a new I-9 form. No drastic changes are made, but employers should review USCIS publications to become familiar with the new form. Federal law mandates that all employers use Form I-9 to verify the identity and employment authorization of all new hires. Both employees and employers (or authorized representatives of the employer) must complete the form.
Employee Errands: A Small Business Pitfall
Businesses routinely send employees on company errands in their personal vehicles. In many companies, it would be hard to find a day when one employee or another does not jump in the car before or after work, or during lunch, to make a bank deposit, swing by the post office, pick up lunch for the staff, or run some other simple errand. What kind of legal risks does a company face if someone gets hurt in an accident caused by such an employee?
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Legal_Update_May_2013.pdf |
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April 2013 Legal Update
Blabby Supervisor Violated Privacy Rights By Disclosing Worker’s Mental Disability
Human resources managers know better than to disclose private medical information about employees. Supervisors may not. In a recent California appellate court case titled Ignat v. Yum! Brands, Inc., the company learned what legal misfortunes are in store when a supervisor doesn’t “zip it.”
California Legislative Update: Sacramento Brews New Batch Of Labor Bills
A quarter of the way into 2013, Sacramento politicians have not yet enacted any new labor laws of significance. However, several bills under consideration by the state legislature could significantly impact California employers.
How Bad Is Too Bad? Sexual Misconduct Ruled Not Unlawful
What happens when a mouthy co-worker makes crude sexual comments and the supervisor stands idly by? Sounds like a recipe for litigation. But not all crude conduct in the work place rises to the level of unlawful “sexual harassment.” Crude conduct that is occasional, isolated, sporadic, or trivial might violate company policy, but not the law. Where does it cross the line? In a recent Ninth Circuit Court of Appeal decision titled Westendorf v. West Coast Contractors, a federal court decided if the line was crossed.
Court Nixes One-Sided Arbitration Agreement
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. A recent California appellate court case titled Compton v. Superior Court addressed the question of whether it was unfair to enforce an arbitration provision which required the employee to submit all claims to arbitration, but carved out exceptions for the company.
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Legal_Update_April_2013_(2).pdf |
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March 2013 Legal Update
Pregnant Employee May Be Entitled To More Than Four Months Leave
California employers know that under the Pregnancy Disability Leave Law (PDL), pregnant employees may qualify for up to four months of leave on account of pregnancy-related disability. But what happens when an employee exhausts the entire leave entitlement? In some circumstances, the employer may need to offer additional time off. In a recent California appellate court case titled Sanchez v. Swissport, a company providing only PDL leave discovered that it may be in violation of other California leave entitlements.
Harasser Sues For Discrimination; Court: Nice Try
When a company determines that an employee has engaged in harassment or other misconduct, termination of the wrongdoer often follows. We all know that the victims of harassment might sue the company, but what about the alleged wrongdoer? Does he or she ever have a claim for wrongful termination? While it is theoretically possible, a thorough and objective investigation makes it unlikely to succeed, as an appellate court explained in a recent case titled McGrory v. Allied Signal Technology, Inc.
New FMLA Regulations Address Military Family Leave
The U.S. Department of Labor has published updated FMLA regulations which primarily affect leave related to military family members. These regulations are implemented following amendments to the FMLA statute in 2010 (sometimes referred to as the 2010 NDAA. The regulations become effective March 8, 2013. |
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Legal_Update_March_2013.pdf |
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Upcoming Webinar:
Employer Tips For California's
New Pregnancy Leave Regulations
Date: March 7, 2013
Time: 9:00 AM - 10:15 AM PDT
Location: Online and Teleconference
Tuition: FREE!
Instructor: Christopher Olmsted, Esq., a labor/employment attorney and partner with Barker Olmsted & Barnier, APLC.
HR Continuing Education Credits and MCLE will be offered.
Pregnancy bias claims have increased in recent years, and employers need to protect themselves with a strong understanding of state and federal law. It is now a good time for a legal update because new California regulations for pregnancy leave and accommodations became effective December 30, 2012.
The regulations make notable changes to pregnancy leave and accommodation law. Company owners, managers, HR professionals and corporate counsel will learn about these changes in the context of an overview of rights and obligations of pregnant employees.
The presentation will focus on practical tips for compliance with the new regulations. There will be ample time for questions and answers.
Space is limited.
Reserve your Webinar seat now at:
https://www2.gotomeeting.com/register/551907122
After registering you will receive a confirmation email containing information about joining the Webinar.
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February 2013 Legal Update
Love On The Job: Legal Aspects of 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?
Disabled Employee Properly Terminated On Leave
Employers know to accommodate disabled employees, often by providing a leave of absence. Sometimes, however, it is clear that no accommodation will enable the employee to work. In a recent Ninth Circuit Court of Appeal case titled Lawler v. Montblanc, the court examined whether the employer properly terminated the employee while on a medical disability leave of absence.
Termination After FMLA Leave Deemed Lawful
Sometimes employers discover employee misconduct close in time to a protected FMLA leave. For example, an employee may start a leave after the misconduct is discovered but before the employer concludes an investigation. Terminations for legitimate business reasons are legal in such circumstances, but must be handled with utmost care to avoid discrimination or retaliation claims. A federal Fourth Circuit Court of Appeal recently examined such circumstances in a case titled Laing v. Federal Express Corp. |
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Legal_Update_February_2013.pdf |
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January 2013 Legal Update
New California Pregnancy Leave Regulations
Under the California Fair Employment and Housing Act, covered California employers are required to provide up to four months of leave time for employees with pregnancy-related disabilities. Additionally, employers must accommodate pregnant employees in various ways. California has implemented new pregnancy leave regulations effective December 30, 2012. Employers should note the changes and update policies and practices.
Employment Contract Oversight Leads To Big Verdict For Terminated Employee
Most employers are familiar with the concept of “at will employment” and have taken steps to lock in that status with their rank and file employees. But where employees work for multiple entities in a business conglomerate, particularly executives, the terms and conditions of employment can become fuzzy, to the detriment of the employer. Employers should take steps to avoid the mistakes referenced in a recent California appellate case titled Faigin v. Signature Group Holdings.
Employer Escapes Leave Law Liability
Employers must take care when handling medical leave requests under the California Family Rights Act (CFRA). If an employer prematurely grants a leave request (say by a well-meaning supervisor) before a proper eligibility determination, the employer may be precluded from changing course later on. A recent California appellate case titled Olofsson v. Mission Linen Supply, Inc. examined this issue and found that the employer correctly preserved its rights.
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Legal_Update_January_2013.pdf |
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December 2012 Legal Update
Clothing Retailer's Fashion Policy Draws Class Action Lawsuit
Most California employers are familiar with the rules regarding traditional worker uniforms. But what about fashion choices, such as a clothing retailer’s preference that employees dress in a certain way? A California court addressed this issue in a case titled Morgan v. Wet Seal.
Is Time Clock Rounding A Bad Idea?
Is it legal to “round” an employee’s punch time up or down to the nearest tenth of an hour? Federal regulations approve of the practice, but California law has not squarely addressed the issue—until now. A California appellate court recently adopted federal law in a case titled Silva v. See’s Candy Shops. Employers who round time should take note of the decision.
Termination for Family Leave Abuse
If you have reason to believe that an is employee working a side job while he’s supposed to be on a medical leave, all bets are off and you can refuse reinstatement, right? Not right. In a recent California case titledRichey v. AutoNation, Inc., the court set a fairly high standard for employers wishing to combat leave of absence abuse. |
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Legal_Update_Dec_2012.pdf |
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Upcoming Seminars:2012 Annual Employment Law Update
Join Chris Olmsted in November for a review of labor and employment law developments in 2012, including legislation, court cases, and trends to watch.
Professionals In Human Resources Association(PIHRA)
Date: November 8, 2012
Time: 11:30 a.m. to 1:30 p.m.
Location: Pechanga Resort & Casino
45000 Pechanga Parkway
Temecula, CA 92592
Registration information:
www.Pihra.org
https://m360.pihra.org/ViewEvent.aspx?id=60866&instance=0
North County Personnel Association
Date: November 14, 2010
Time: 11:30 a.m. to 1:00 p.m.
Location: Sheraton Resort, Carlsbad
Registration information:
www.ncpasd.org
https://m360.ncpasd.org/event.aspx?eventID=60865&instance=0
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Upcoming Webinar:
2012/2013 California Employment
Law Update
Date: November 15, 2012
Time: 9:00 AM - 10:00 AM PDT
Location: Online and Teleconference
Tuition: FREE!
Instructor: Christopher Olmsted, Esq., a labor/employment attorney and partner with Barker Olmsted & Barnier, APLC.
HR Continuing Education Credits available.
California and federal employment law constantly evolves, and this past year was no exception. Make the transition into the New Year easy: join us for a free webinar covering an annual update of important legal developments in 2012, along with a review of new laws in effect for 2013.
Highlights will include:
- California legislative update – overtime rules, social media, retirement accounts, religious dress, and more.
- California case law update – meal periods, non-competition, arbitration, commissions, and more
- Federal case law update – discrimination, class actions, wage and hour, exempt commissioned employees, and more
- Trends to watch in 2012
The presentation will focus on practical tips for compliance with the new laws and legal developments. There will be ample time for questions and answers.
Space is limited.
Reserve your Webinar seat now at:
https://www2.gotomeeting.com/register/268221474
After registering you will receive a confirmation email containing information about joining the Webinar.
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November 2012 Legal Update
The Daily Grind Causes Barista To Sue For Day Off; Is It Illegal To Work Seven Consecutive Days?
Is an employee entitled to one day of rest per week? Many employers may be unfamiliar with very specific California Labor Code provisions which require one day of rest. The rules have several exceptions. A federal trial court in California recently reviewed those rules in a case titled Mendoza v. Nordstrom, Inc.
Why You May Need To Update Your Independent Contractor Agreements
If a company hires an independent contractor, can the contract mandate that the worker arbitrate statutory labor law claims? Standard contract language found in many independent contractor agreements may not suffice according to a California appellate court case titled Elijahjuan v. (Superior Court) Mike Campbell & Associates, LTD.
Commission Agreement Deadline Looms
The deadline looms for California employers to put commission agreements into writing. Employers have until January 1, 2013 to comply with the new law. Employers should confirm that they understand the law’s provisions and have taken all necessary steps to comply before the end of the year.
Avoiding Bogus Demands For Time Off To Vote
With elections coming up on November 6th, employers should review California’s specific and narrow law allowing employees paid time off to vote, found in California Elections Code section 14000. Of course comply with the law and give employees the time to exercise this important civil right. But don’t get duped by a bogus request. |
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Legal_Update_Nov_2012.pdf |
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October 2012 Legal Update
California Governor Signs Bevy of Labor Bills
California's legislators and governor have had a busy September. Governor Brown signed a number of labor and employment laws close to the end of September deadline. Below is a summary of several of the most significant new laws affecting most employers.
No Reporting Time Pay For Scheduled Meetings
When an employee is called in for a meeting on an off day, does the employer owe her a minimum amount of pay for reporting? It depends. California requires employers to pay “reporting time pay” in some circumstances. A California appellate court has clarified the rules in a recent case titled Aleman v. Airtouch Cellular, and, as a bonus to employers, has ruled that prevailing employers can collect attorney fees in court.
Workers’ Comp Retaliation Cases Cannot Be Heard In Court
Employers understand the delicacy of terminating a poor performing employee who happens to have filed a workers’ compensation claim. Although the employee may deserve termination, it is easy for the employee to allege that the termination was retaliatory. A recent appellate court in California decided whether such a claim must be processed in the workers’ compensation forum, or whether an employee may sue in court for wrongful termination. (Dutra v. Mercy Medical Center Mt. Shasta) |
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Legal_Update_Oct_2012.pdf |
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September 2012 Legal Update
Arbitration Agreement in Handbook Not Enforceable
A California appellate court recently determined that an arbitration clause buried in the employee handbook was not an enforceable contract, opening the way to a jury trial. The case, titled Sparks v. Vista Del Mar Child and Family Services, should prompt employers to review and possibly change handbook arbitration clauses.
Non-Competition Agreements Done Right, Done Wrong
In California, how do you stop your employee from taking his knowledge and skills to a competitor? You can’t, for the most part. There are limited exceptions, and a California appellate court addressed this in a recent case titled Fillpoint v. Mass. In an interesting factual scenario, the court reviewed two non-competition agreements signed by the same employee, finding one enforceable but the other one unenforceable.
Commission Overtime Conundrum Headed To Cal Supreme Court
Some companies may be surprised to learn that commissioned sales persons are entitled to earn overtime, unless they fall into certain exemptions. So if overtime is owed, how exactly does an employer calculate the premium rate taking commissions into account? Should the commissions fall into the calculation when actually paid out, or is it acceptable to spread the payment out over the period of time that the employee worked to earn the commission? The question is headed to the California Supreme Court, referred by the federal Ninth Circuit Court of Appeal in a case titled Peabody v. Time Warner Cable.
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Legal_Update_Sept__2012.pdf |
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Upcoming Webinar:
Legal Aspects of Sales Force Management
Date: August 16, 2012
Time: 9:00 AM - 10:00 AM PDT
Presenter: Chris Olmsted, Esq from Barker Olmsted & Barnier, APLC
Location: Online
Cost: FREE!
Join employment law attorney Chris Olmsted for a presentation on legal issues relating to your sales force including:
- Properly classifying inside and outside sales exemptions
- New statutory requirement regarding commission agreements
- Essential terms and conditions of commission agreements
- Incentive compensation
- When and how to pay overtime to sales employees
- Recent court cases involving sales personnel
Follow this link to register today:
https://www2.gotomeeting.com/register/855966338
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August 2012 Legal Update
Commission Chargebacks Deemed Lawful
Is it legal to apply a chargeback against commissions earned by a salesperson? The question often arises where sales are cancelled or otherwise unconsummated after the employee has already been paid the commission. The answer is technical, and it depends on the details of the commission arrangement. A recent California appellate court case considered the issue in a case titled Deleon v. Verizon Wireless LLC.
"Now What?" Employer’s Health Care Obligations After U.S. Supreme Court Decision
On June 28th, the U.S. Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act. Employers have been planning and implementing portions of this law since its enactment in 2010. Now that the PPACA has survived a major legal challenge, and with final aspects of the law set to phase in by 2014, it is time to gain a better understanding of the employer mandates. Below is a short summary of the major components affecting employers.
Franchisor Could Be Liable for Franchisee’s Sexual Harassment
Can a restaurant franchisor be held liable for sexual harassment which occurs at a franchisee location? Franchisors that impose too much control over franchisee operations may end up sharing liability, according to a California appellate court in a case titled Patterson v. Domino’s Pizza, LLC.
Click below to download the August 2012 Newsletter in PDF format:
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Legal_Update_Aug_2012.pdf |
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July 2012 Legal Update
Worker Disqualified from Unemployment Benefits After Refusal to Sign Disciplinary Memo
After you present the misbehaved employee with a discipline memo, he frowns, crosses his arms, and angrily growls “I’m not signing your b.s. memo.” Now what? The employee can be fired for insubordination. Of course, then he will apply for unemployment insurance benefits and drain your reserve account. C’est la vie. But not so fast—wasn’t the refusal to sign the memo an insubordinate act of misconduct that disqualifies him from receiving benefits? A California court of appeal addressed this question in a recent case titled Paratrainsit, Inc. v. Unemployment Ins. Appeal Board.
Termination One Year After Disability Too Remote To Show Discrimination
All too often a company is faced with disciplining or terminating a misbehaving employee who happens to have had a disability. How do we separate out the legitimate business concerns from the inevitable claim of disability discrimination? A California appellate court recently considered these issues in a case titled Rickards v. UPS.
Click below to download the July 2012 Newsletter in PDF format: |
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Legal_Update_July_2012.pdf |
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June 2012 Legal Update
California Supreme Court Delivers One-Two Punch For Meal/Rest Period Claims
The California Supreme Court’s recent decision in Brinker v. Superior Court made headlines as a landmark decision relating to meal and rest periods. The Court decided a second, equally important meal and rest period case that received little media attention. Kirby v. Immoos Fire Protection, Inc. addressed whether or not attorney fees are recoverable in such cases. The answer favors employers.
EEOC Targets Employer Criminal Background Checks
The EEOC looks askance at criminal background checks for job applicants. What seems like a commonsense business protocol is seen by our federal government as a proxy for filtering out minority applicants. In April 2012, the EEOC updated its policy position on the matter, and employers should take steps to ensure that hiring practices comply.
California Anti-Discrimination Law Protects Business Partners; A Departure From Federal Law
Federal anti-discrimination law, found in Title VII of the Civil Rights Act of 1964, prohibits employment discrimination. The California Fair Employment and Housing Act prohibits the same. But what about business partners? Technically they are not “employees”; does that mean that they are not protected under the law? Federal law would say “no,” but a recent California appellate court in a case titled Fitzsimons v. California Emergency Physicians Medical Group determined that California law does not track federal law in this regard.
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Legal_Update_June_2012.pdf |
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May 2012 Legal Update
Lunch Police Recalled: Cal Supremes Finally Decide Brinker Case
Weary patrol officers of the Lunch Police (aka California employers) have been called off the beat. After an inexplicably long wait, the California Supreme Court finally issued a unanimous ruling in a landmark case titled Brinker v. Superior Court. The decision favors employers because it relieves them of the duty to force employees to break. But employers who don’t read beyond newspaper headlines risk getting sued for failing to learn the nuances of the Court’s ruling.
Download the entire newsletter in PDF format by clicking below:
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Legal_Update_May_2012.pdf |
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April 2012 Legal Update
Illegal To Require High School Diploma? Avoiding Hysteria Over EEOC's Recent Letter
Your job applicants should have a high school diploma, right?
Slackers need not apply. Would it be crazy to call that basic educational prerequisite a form of discrimination? Crazy or not, the EEOC says this might be disability discrimination. But before you launch into a diatribe about out-of-touch Beltway bureaucrats, let’s take a closer look at the EEOC’s opinion, and the EEOC’s recent effort to reduce the controversy created by that letter.
Should Your Volunteer Student Interns Be Paid? Avoiding State and Federal Wage Liability
Some big companies are fighting off labor lawsuits. The New York Times reported recently that a former unpaid intern recently sued the publishing company Hearst Corporation. The employee worked at the publisher’s fashion magazine, Harper’s Bazaar. She alleges in her lawsuit that the publisher violated federal and state wage and hour laws by not paying her even though she often worked there full time.
California Legislative Update: Expanding Family Leave and Adding Unemployed As A Protected Class
Expanding Family Leave: The California Assembly is considering a bill which would expand the California Family Rights Act. AB 2039 would seek to expand California’s version of the FMLA to include additional types of family members with serious medical conditions for whom employees could take time off.
Adding Unemployed As A Protected Class: AB 1450 would prohibit employers from considering an applicant’s unemployed status when making a hiring decision.
Download the entire newsletter in PDF format by clicking below: |
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Legal_Update_April_2012.pdf |
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March 2012 Legal Update
Contract Doesn't Save Out of State Company From California Labor Laws
Can an out of state company enter into a contract with its California workers, agreeing that California labor law won’t apply to the relationship? In a recent federal case titled Ruiz v. Affinity Logistics, a Ninth Circuit court of appeal examined the question and articulated a standard that will make such contractual terms difficult to enforce.
EEOC Slams Employers in 2011
In a recent press release, the U.S. Equal Employment Opportunity Commission (EEOC) reported that in 2011 it received a record 99,947 charges of employment discrimination. This number is up only slightly from the record set in 2010.
EEOC and California DFEH Investigations
If the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH) gives notice that your company has been charged with discrimination and is under investigation, are you prepared to respond? Employers should be aware of a few basic facts about these agencies, “just in case.”
Download the entire newsletter in PDF format by clicking below: |
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Legal_Update_March_2012.pdf |
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February 2012 Legal Update
False Sexual Harassment Claims Merit Termination
If an employee makes a false sexual harassment complaint as a diversionary tactic to avoid discipline for misconduct, can the employer terminate the employee for making the complaint, or is the employee protected against “retaliation” under state or federal anti-discrimination laws?
Recruiters Deemed Exempt Commissioned Salespersons, Denied Overtime Claims
California labor law provides that commissioned salespersons are exempt from overtime and other wage and hour rules. Lawsuits often arise over whether salespersons actually qualify for the exemption. Questions arise such as “what exactly is ‘selling’ and precisely what do we mean by ‘commissions’”?
Arbitration Clause Buried In Job Application Too One-Sided To Enforce
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.
Download the entire newsletter in PDF format by clicking below:
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Legal_Update_February_2012.pdf |
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January 2012 Legal Update
Worker Deemed Independent Contractor,Labor Code Claims Denied
Proper classification of a worker as an independent contractor involves careful consideration of a variety of factors. The potential liability of an erroneous decision can be significant, particularly given recent amendments to California law dramatically increasing penalties.
IRS Mileage Rate Remains Unchanged
The Internal Revenue Service issued the 2012 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes.
Beginning on Jan. 1, 2012, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 55.5 cents per mile for business miles driven.
Avoiding Liability For “Reporting Time Pay” and “Split Shifts”Verizon Defeats Employee Class Action
California employers are often befuddled by hypertechnical wage and hour rules. The Labor Code and related regulations offer little guidance while at the same time imposing much liability. “Reporting time pay” and “split shift pay” are two commonly misunderstood rules.
California Supreme Court Addresses Administrative Exemption Favors Employers, But Leaves Unanswered Questions
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 to the employer. The administrative exemption is perhaps the hardest to understand and apply.
Download the entire January 2012 Update in PDF format by clicking the link below:
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Legal_Update_January_2012.pdf |
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November 2011 Legal Update
California Bans Employee Credit Checks With Narrow Exceptions
On October 9th, Governor Brown signed AB 22 into law. Effective January 1, 2011, the new law prohibits the use of a consumer credit report for employment purposes.
Amended California Pregnancy Disability Leave Mandates Employer Healthcare
California’s Pregnancy Disability Leave law has been amended by SB 299, mandating that employers provide paid healthcare for up to four months of leave. The amended law has its biggest impact on small businesses not already covered by the FMLA.
Bachelorette Gag Gift, Bad Santa Insufficient Evidence of Employer Sexual Harassment
Not all crude conduct in the work place rises to the level of “sexual harassment.” Crude conduct that is occasional, isolated, sporadic, or trivial might violate company policy, but not the law. Where does it cross the line? Consider holiday party antics, misdirected emails, and a gag gift in a case titled Brennan v. Townsend & O’Leary Enterprises, Inc.
California Mandates Written Contracts For Commissioned Employees
Governor Brown signed a law mandating that all commissioned employees in California be provided with a written contract.
Download the entire November 2011 Update in PDF format by clicking the link below: |
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Legal_Update_November_2011.pdf |
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October 2011 Legal Update
Crossing the Line: When Does Crude Conduct Become Harassment?
Not all crude conduct in the work place rises to the level of “sexual harassment.” Crude conduct that is occasional, isolated, sporadic, or trivial might violate company policy, but not the law. Where does it cross the line? In a recent unpublished California case titled Ramaiya v. Pacific Coast Care Center, the appellate court wrestled with the issue.
New Mandatory NLRB Poster Published, But Posting Deadline Delayed. Is Your Business Exempt?
The NLRB has now mandated that most employers post a union rights poster in the workplace. A few days ago, the NLRB delayed the compliance date. Is your business exempt from the new rule?
Nielsen Gets Poor Ratings In Age Discrimination Case
An employer can terminate an employee with a track record of performance problems, right? Right, but where the company inconsistently administers discipline and does not follow its own policies, it leaves room for arguments about illegal motivation. In a recent 9th Circuit Court of Appeal decision titled Earl v. Nielsen Media Research, Inc., the court found enough evidence to allow a poorly performing employee to present her case to a jury.
Download the entire October 2011 Legal Update by clicking the link below:
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Legal_Update_October_2011.pdf |
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September 2011 Legal Update
Employers: Are You Ready For School-Related Leave For Parents?
The lazy days of summer are behind us this month as many children head back to school. Employers of parents with school age children should review California laws which provide certain rights to take time off from work to deal with school-related issues.
Transfer While On Medical Leave Did Not Violate California Medical Leave Law
California’s medical leave act, the CFRA, requires an employer to reinstate an employee to the same or equivalent position upon the conclusion of the protected leave. It prohibits retaliation for taking the leave. Does that mean an employer is always prohibited from reassigning an employee during a leave? Not necessarily. A recent California appellate court in a case titled Rogers v. County of Los Angeles addressed this scenario.
New Federal Labor Poster Mandated by NLRB; Business Group Sues To Stop It
The National Labor Relations Board has issued a new rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act. Employers must comply with this new mandate by November 14, 2011.
Vacation or Sabbatical? California Court Defines The Difference
What is a sabbatical? The devil is in the details. Some employers offer these extended paid leaves to long-term employees. But in the muddy waters of California employment law, a poorly designed sabbatical program may in fact be deemed vacation by the court. A recent appellate case titled Paton v. Advanced Micro Devices, Inc. attempted to define the difference between sabbaticals and vacation.
Download the entire September 2011 Legal Update by clicking the link below:
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Legal_Update_September_2011.pdf |
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August 2011 Legal Update
California Court Finds Labor Law Loophole In U.S. Supreme Court’s Arbitration Ruling
Employee arbitration agreements must be carefully drafted in California, because courts scrutinize them and often refuse to enforce them when they find “unfair” provisions. For example, California courts do not typically enforce “class action waivers” whereby employees signing arbitration agreements. forfeit the right to participate in class action claims. Will this change in light of the U.S. Supreme Court’s recent decision in AT&T Mobility LLC v. Concepcion? Maybe not, as we saw in a new California appellate court case, Brown v. Ralphs Grocery Store Co.
California Legislative Update.
Although Governor Brown vetoed a mandatory commuter benefit for employees, a few other employment laws are winding through the California legislature, including a ban on credit checks and bereavement leave entitlements.
EEOC Sues Taco Bell Franchise After It Fires Long-Haired Employee
The EEOC issued a press release in late July announcing that it had sued a North Carolina corporation that operates a chain of Taco Bell restaurants after it fired a male employee who refused to cut his long hair. Employers should review the EEOC’s recommendations regarding religious accommodation in the workplace.
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July 2011 Legal 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, do overtime provisions of the California Labor Code apply during the assignment? The answer, according to the California Supreme Court in a case captioned Sullivan v. Oracle Corp., is “yes.”
Unlicensed Professionals Might Qualify For White Collar Exemption?
California’s professional exemption covers certain licensed professionals such as accountants, lawyers and doctors. Does that mean that an unlicensed professional cannot qualify for this white collar exemption? Not necessarily. A federal Ninth Circuit Court of Appeal recently ruled that unlicensed accountants might qualify as exempt employees in a case titled Campbell v. PricewaterhouseCoopers LLC. The same rationale may apply to other unlicensed professionals.
EDD Modifies Regulations Providing Benefits For Employees Who Quit Due To Compelling Family Reasons
U.S. Supreme Court Ruling In Wal-Mart Case Won’t Affect Most Employers> The U.S. Supreme Court issued a ruling in favor of the employer in the largest civil rights lawsuit ever filed in the United States. But the ruling in the case titled Wal-Mart Stores, Inc. v. Dukes probably won’t affect most employers.
Sexual Harassment PreventionTraining Record Requirements
Q: My company is required to conduct supervisor sexual harassment prevention training according to California’s training law, AB 1825. What are the record keeping requirements associated with the training?
Click below to download Entire July 2011 Update in PDF format.
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June 2011 Legal Update
Car Dealer Defeats Overtime Claim By Commissioned Salesperson.
California’s Labor Code allows for an overtime exemption for commissioned salespersons. One requirement for this exemption is that the employee is paid on a commission basis. Commonly, “commission” means a percentage of the sales price, but is that necessarily so? A California appellate court recently examined the meaning of “commission” in a case titled Areso v. Carmax.
Quitting to Care for Child Might Not Disqualify Employee from Unemployment Benefits.
In California, employees who voluntarily quit their jobs are generally disqualified from receiving unemployment benefits. However, there are a number of exceptions to this general rule. One exception may apply where the employee quits in order to care for a child.
Ninth Circuit Rejects Employee’s Disability Accommodation Claim.
California disability law imposes stringent requirements on employers when it comes to accommodation. Employees and their lawyers will criticize an employer’s participation in the “interactive process” and second-guess decisions regarding what is or is not a “reasonable accommodation.” In a recent Ninth Circuit Court of Appeals case titled DFEH v. Lucent Technologies, Inc., the court reviewed one employer’s actions and found no fault.
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May 2011 Legal Update
Employee With Mental Disability Properly Terminated For Threats
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 recent California case titled Wills v. Superior Court examined the question but issued a narrow ruling.
HR Managers: Are You A Cat’s Paw? (You Don’t Want To Be)
What does it mean to hold an employer liable for discrimination under a “cat’s paw” theory of liability? The concept has been addressed in court decisions for a number of years, and recently the U.S. Supreme Court addressed it in a military service discrimination case titled Straub v. Proctor Hospital.
California Mandatory Sick Pay Legislation Returns
For several years now, members of the California legislature have proposed legislation which would mandate paid sick leave for private industry employers in California. The legislation is back in 2011, with a vengeance.
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April 2011 Legal Update
EEOC Issues ADAAA Regulations.
The ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of “disability” under federal law. The EEOC published its final regulations for the amendments on March 25, 2011.
Arbitration Agreement Update Employee Entitled to Labor Commissioner Hearing Despite Signing Arbitration Agreement.
In recent case titled Sonic-Calabasas A Inc. v. Moreno, the California Supreme Court considered whether employers may require employees to submit wage and hour claims to binding arbitration rather than the state’s Labor Commissioner.
Employer Repels Rehabilitated Drug Addict’s ADA / FEHA Discrimination Case.
The ADA and California’s Fair Employment and Housing Act protect rehabilitated drug addicts from employment discrimination. Does that mean that employers must hire or rehire qualified rehabilitated addicts, all other things equal? Generally, yes, but there are narrow exceptions, according to a Ninth Circuit court of appeal in a case titled Lopez v. Pacific Maritime Association.
Discrimination Against the Unemployed?
Times have been tough and millions of Americans are unemployed. In reaction, a member of Congress has introduced the Fair Employment Act of 2011, which would amend the Civil Rights Act of 1964 to protect against discrimination on the basis of unemployment status. Basically, this would give unemployed applicants the right to sue an employer for failing to hire them.
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March 2011 Legal Update
Can You Fire Someone For A Facebook Posting? Facebook Firing Case Ends In Settlement
Social networking has a dark side. Any yahoo with a Facebook page has a platform to maliciously tear down your company. If that yahoo is on your payroll, you should have the right to press “delete” and terminate, right? Maybe not. The National Labor Relations Board reported that a settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page. The case highlights legal issues confronting companies wishing to deal with disparagement by employees on various social media websites.
California Legislative Update
The California legislature wasted no time in 2011. Politicians in the Golden State’s Assembly and Senate have already introduced pro-labor employment law legislation. It remains to be seen how our new governor, Jerry Brown, will respond to such legislation if it is passed on both the Assembly and Senate.
Starbucks Dodges California “Reporting Time” Pay Claim
If you instruct an employee to report to work, only to promptly send him home, does the employee get paid? Yes, if he works in California. California wage and hour law contains a number of requirements not found in federal law or in other jurisdictions. One such requirement is the rule known as “reporting time pay.” California law requires employers to pay a minimum number of hours when an employee is called into work but is not put to work or is furnished fewer hours than scheduled. In a recent unpublished opinion titled Price v. Starbucks, a California appellate court examined this wage law.
DOL Adds Budget Dollars for Independent Contractor Misclassification Enforcement
Do you have independent contractors? The federal government may soon come a knockin’. The U.S. Department of Labor has highlighted its ongoing and increased enforcement in the area of independent contractor misclassification.
Court Determines California Maximum Daily Penalty for Missed Meal/Rest Periods
Labor Code section 226.7 requires an employer who fails to provide an employee with a meal or rest period to pay that employee a penalty of one additional hour of pay (or premium payment) “for each work day that the meal or rest period is not provided.” Does this mean one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day – one for failure to provide a meal period and another for failure to provide a rest period? A California appellate court examined this issue in a recent case titled United Parcel Service, Inc. v. Superior Court.
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February 2011 Legal Update
Where Love Abounds: Dealing With 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? Yes; employers should develop a strategy to minimize the risks of liability.
Job Bias Charges Hit Record High of Nearly 100,000 in 2010 The U.S. Equal Employment Opportunity Commission (EEOC) has announced that private sector workplace discrimination charge filings hit the highest level ever with 99,922 filed during fiscal year (FY) 2010. The statistics reveal developing trends in certain areas of employment litigation.
Title VII Protects Employee’s Fiancé From Retaliation. If an employee files an EEOC charge, clearly the federal law protects her from retaliation by the employer. But what if the company leaves the employee alone, and instead targets her co-worker fiancé? Does the fiancé have the right to sue for retaliation under Title VII? The U.S. Supreme Court addressed this issue in a recent case titled Thompson v. North American Stainless LP. Ruling in favor of the employee, the Court has dramatically expanded the definition of workplace retaliation.
Sit On It: Ongoing California Class Action Trend Addresses Employee Right to A Seat. Most California businesses are generally familiar with provisions in California’s labor regulations relating to minimum wage, overtime, and exempt classifications. But the regulations include a number of lesser known provisions, which some businesses may inadvertently violate. Of course this creates an opening for class action lawyers to prey on employers. One such provision relates to the provision of seats for employees. A recent class action lawsuit titled Home Depot USA v. Superior Court illustrates this developing litigation trend.
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January 2011 Legal Update
2011 New Year’s Resolutions For Human Resources.
So what’s it going to be for 2011? Get up and go to the gym every morning? Finally pay off those credit cards? Learn to speak Dutch? Before you finish the list of New Years resolutions, let’s suggest a few on the human resources front. Sure, some of these seem obvious, but then again, so is losing ten pounds (again). Pick a few and knock them off early in the year, and call it a good start.
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.
Pension Fund Withdrawal Liability Can Cripple Companies When Terminating Union Relationships.
Terminating a union contract can be an expensive proposition for a business. Under federal law, the union pension fund can assess a “withdrawal liability” to cover unfunded pension benefits.
Some businesses have set up a separate enterprise to take on unionized projects, but this is not a panacea for withdrawal liability. In a recent 9th Circuit Court of Appeal decision titled Resilient Floor Covering Pension Fund v. M & M Installation, Inc., the court addressed the issue of whether a non-union company may be liable on an alter-ego theory for pension fund withdrawal liability incurred by a union company when there is commonality between the union and non-union firms.
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December 2010
Employer's Essential 2010-2011 Update
Happy Holidays! This issue reviews 2010 legal developments and new state and federal laws in effect for 2011 affecting employers. Among developments on the state level, a new paid leave law for organ donors is on the books, and Cal/OSHA has become more stringent. On the federal level, we have major health care reform.
We also look back on 2010 and review significant court decisions that will affect the way you interact with your employers. The California Supreme Court broadened the types of evidence admissible to prove employment discrimination, making it more difficult for employers to defeat claims. It made narrow rulings on wage and hour issues related to tipping and kin care leave. The U.S. Supreme Court tackled workplace privacy, arbitration agreements, and disparate impact discrimination 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 2011 through this publication, educational seminars, and one-on-one consultation.
Have a happy and prosperous 2011!
Sincerely, Chris Olmsted
Labor & Employment Law Legislation: New California And Federal Laws Enacted In 2010
Significant 2010 California and Federal Labor & Employment Law Cases
2010 Labor & Employment Regulatory And Agency Update
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November 2010 Legal Update
Arbitration Fail: Employer Who Should Have Handed Out Arbitration Rule Book Now Faces A Jury
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. A recent California appellate court case titled Trivedi v. Curexo Technology Corporation addressed the question of whether presenting an arbitration agreement referencing AAA rules, without including a copy of the rules, was so unfair as to void the agreement.
California Adds New Paid Leave Law Rights For Organ Donors At Employer Expense
California lawmakers have added a new leave entitlement for qualified private sector employees who volunteer to donate an organ or bone marrow. As an incentive to encourage people to save lives, the legislature provides that employees who participate will receive generous leave rights, including paid time off. Employers should become familiar with the new law’s provisions.
Lawyer’s Insensitive Statements Not Harassment, Says State Commission. But He’s Ordered To Attend Harassment Training Anyway
There is a line between illegal harassment and just plain asinine conduct. But the line is ill-defined, and employers and employees often find themselves in litigation arguing over where the line should be drawn. In a recent California state agency enforcement action titled Department of Fair Employment and Housing v. Lyddan Law Group, a lawyer stayed on the legal side of the line (barely), but was still ordered to attend harassment training.
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October 2010 Legal Update
Will California Go To Pot? Proposition 19 Would Limit Control Over Pothead Employees.
California is on the verge of legalizing the possession and use of marijuana. The California November 2nd ballot includes Proposition 19. Unlike the Compassionate Use Act of 1996 (Proposition 215), which legalized only the medical use of marijuana, Proposition 19 would legalize recreational use. Moreover, unlike the 1996 law, Proposition 19 includes specific protections for pothead employees. What should California employers know about the proposed law?
California Legislative Roundup 2010.
Although the California legislature has been preoccupied with a near melt down relating to budget fights, several labor and employment bills were passed by the legislature. However, Governor Arnold Schwarzenegger vetoed bills that would have affected the private sector.
FMLA Military Leave Has Its Limits.
An employer asks: One of our employees has a son who is an army recruit and he is about to complete basic training. There will be a ceremony which the employee would like to attend, but she would need to take two days off for work. Would this leave be protected under the FMLA? A review of FMLA regulations reveals the answer.
FMLA UPDATE: New Company Taking Over Store Location Not Required To Give FMLA Leave To Retained Employee.
What happens to an employee’s FMLA eligibility when she begins working for a company who has recently acquired her former employer? The Ninth Circuit Court of Appeals examined this issue in a case titled Sullivan v. Dollar Tree Stores, Inc. The answer depends on whether the acquiring company is a “successor in interest” as defined by the Act.
What Happens In Vegas Stays In Court: Court of Appeal Reinstates Sexual Harassment Case By Male Worker At Vegas Airport.
Most sexual harassment complaints are made by women against men. But employers should remember that sexual harassment can occur between any employees, regardless of gender. A recent case involving a female worker’s harassment of a male employee at the Las Vegas airport, in a case titled EEOC v. Prospect Airport Services, Inc., illustrates what can go wrong when an employer ignores the broad definition of sexual harassment.
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September 2010 Update
Employer Punished For Enforcing Employee Non-Compete Agreement.
A competitor was sued after firing an employee upon learning that she had signed a non-competition agreement with her prior employer. In a case titled Silguero v. Floor Seal Technology, Inc. , the company received some bad news from a California appellate court.
Workers Deemed Independent Contractors With No Right To Sue For Discrimination.
There have been a lot of cases lately where courts have determined that businesses have misclassified workers as independent contractors rather than employees. Legal liability for such misclassifications can be high. On the other hand, there are many benefits associated with hiring true independent contractors. Legally, for example, such workers are not “employees” and therefore they have no standing to sue for employment discrimination. In a recent Ninth Circuit case titled Murray v. Principal Financial Group, Inc. an appellate court upheld the dismissal of a Title VII discrimination claim on the ground that the worker was an independent contractor.
California Supreme Court Makes Employer Summary Judgment Motions More Improbable.
When an employee sues his employer alleging discrimination, he often lacks direct evidence that the decision maker acted on an illegal motive. The evidence is often circumstantial. Sometimes, among other evidence, employees seek to establish discriminatory decision by offering evidence that a co-worker or other uninvolved employee made a “stray” derogatory remark. Should that evidence be admissible? Under federal law, the evidence is often excluded, but in California the admissibility of such stray remarks has been up in the air—until the recent California Supreme Court case Reid v. Google.
Appellate Court Reinstates Disability Claim By Employee Disabled By Stroke
What happens when a company terminates a poor-performing employee who has recently suffered a stroke? It depends. Can the company demonstrate objectively poor performance, or are the reasons subject to debate? Has management made questionable comments regarding the disability, or focused only on legitimate business concerns? The wrong answers lead to litigation, as an employer recently discovered in a California case titled Sandell v. Tylor-Listug, Inc.
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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.
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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.
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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.
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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.
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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.
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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: |
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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:
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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).
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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?
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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.
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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.
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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
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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.
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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.
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Legal_Update_April_2008.pdf |
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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.
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Legal_Update_March_2008.pdf |
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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?
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Legal_Update_February_2008.pdf |
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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!
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Legal_Update_January_2008.pdf |
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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.
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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.
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PLUS_Article.pdf |
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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. |
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AB_392_Military_Spouse_Leave_Text.pdf |
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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.
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Legal_Update_November_2007.pdf |
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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.
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Legal_Update_October_2007.pdf |
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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.
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Legal_Update_September_2007_s.pdf |
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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.
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Legal_Update_August_2007.pdf |
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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
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ExecutiveSummary_FMLA_report.pdf |
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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
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Legal_Update_July_07.pdf |
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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!!
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Legal_Update_June_2007.pdf |
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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!!
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Legal_Update_May_07.pdf |
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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!!
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Legal_Update_April_07.pdf |
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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!!
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Legal_Update_March_2007.pdf |
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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!!
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Legal_Update_February_2007A.pdf |
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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.
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Legal_Update_January_2007_1.pdf |
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_______________________________________________________
Legal Update Archives
Want to read more? Click the links below to explore our publication in prior years. |
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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
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