join our network! affiliate login  
Custom Search
Daily and Weekly Editions • Articles • Alerts • Expert Advice • Learn More

Total Articles: 213

California Attorney General Seeks Supply Chain Transparency Information from Businesses

Executive Summary: Recently, a number of large retail and manufacturing companies doing business in California may have been surprised to receive a letter from the California Attorney General asking them to demonstrate compliance with the California Transparency in Supply Chains Act. The Act was enacted in 2010 and became effective in 2012; however, the recent round of letters sent out by the California Attorney General has focused more attention on the Act. Recipients of the letters have 30 days to respond by providing a link to their disclosure or providing information showing they are not covered by the Act.


Many employers have struggled with the issue of disciplining an employee for misconduct while he or she is on a leave of absence under the California Family Rights Act (“CFRA”) and federal Family Medical Leave Act (“FMLA”). Employers legitimately fear that the employee will claim that the discipline was taken because of the legally protected leave. In Richey v. AutoNation, the California Supreme Court provided some reassurance to employers who terminate employees on leave based on well-documented evidence of policy violations.

California Legislature: First out of the Starting Gate

California's State Legislature is now producing the labor and employment bills that will be the subject of its attention this year.

Oakland Minimum Wage and Paid Sick Leave Law Effective This Week

In addition to having to comply with the new statewide paid sick leave law, California employers with employees in Oakland need to ensure that they are complying with a new Oakland minimum wage and paid sick leave measure that took effect March 2, 2015.

Court of Appeal Finds Insufficient Evidence Attributing Electronic Signature to Employee

Employers increasingly rely on electronic acknowledgements of policies and procedures. An "electronic signature" is valid under California law. But the reason those signatures exist is so that employers can prove the employee read and signed the document. That's what Moss Bros. Auto found out in a recent case.

California Issues Draft of Proposed Regulations Implementing Hospital Violence Standards

California’s Senate Bill 1299, enacted in the fall of 2014, requires the State’s Occupational Safety and Health Standards Board to adopt standards requiring certain hospitals to implement a workplace violence prevention plan by July 1, 2016. On February 5, 2015, the Division of Occupational Safety and Health (the “Division”) issued a draft regulatory proposal that would require healthcare employers (including hospitals, clinics, drug-treatment facilities, home health care, and other healthcare operations) to develop workplace violence prevention plans specific to the hazards and corrective measures for each unit, service or operation of the employer. Covered employers could incorporate their workplace violence prevention plans into an existing injury and illness prevention program or maintain the plan as a separate document.

California eAuthority (March 2015)

California Court Rules on Whether to Compel Arbitration Where Employer Could Not Authenticate Employee’s Electronic Signature; House Painter With Vertigo and Restriction to Work “at Ground Level” Loses FEHA Case; Worker’s Failure to Perform His Job Duties Satisfactorily Dooms FEHA Retaliation Claim;Being on Call in California Does Not Impede on Rest Breaks;From the Blog: California Labor Commissioner Revises Sick Pay Notice Obligation.

A Pot Pourri of Recent Employment Law Decisions

Here are some recent significant California employment law developments I missed. Long post, but chock full of employment law goodness. Or something:

Will California’s recent law on anti-bullying training begin a nationwide move toward passage of the Healthy Workplace Bill?

The Healthy Workplace Bill (HWB) has been discussed by state and federal legislators for nearly 15 years, and has been the subject of substantial debate and interest. During that time, 26 states have introduced the HWB, or one modeled on it. No state has yet passed the bill (although Tennessee has passed a bill limited to public-sector employees), and several state legislatures have vetoed it.

California Supreme Court Decision Barring Waiver of Representative Claims is Left Intact by U.S. Supreme Court

The U.S. Supreme Court has declined to review the California Supreme Court’s decision that representative claims under the California Labor Code Private Attorneys General Act (“PAGA”) cannot be waived in employment arbitration agreements. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (Cal. 2014), cert. denied, No. 14-341 (U.S. Jan. 20, 2015).

California Legislative Update for 2015 – Notable Changes

As in recent years, California remained a hotbed of legislative action in the labor and employment field. The legislature passed several new laws and amended many others in significant ways. With changes taking effect on January 1, 2015, unless otherwise stated below, employers are encouraged to review their policies and practices to ensure compliance. Below is a summary of many of the most notable changes coming in 2015:

New Year’s Resolutions for the California HR Manager

So what’s it going to be for 2015? Get up and run three miles every morning? Finally pay off those credit cards? Learn to speak French? Before you finish the list of New Year’s resolutions, consider adding a few on the human resources front. Below are a few recommendations for HR leaders—the payoff will be much better than losing 10 pounds (again). Pick a few and knock them off early in the year, and call it a good start.

An Update on the Epidemic: California’s Statewide Paid Sick Leave Law

On January 1, 2015, California 's Healthy Workplaces, Healthy Families Act of 2014 (California paid sick leave act) went into effect. When Governor Edmund G. Brown, Jr. signed the Act into law on September 10, 2014, California became the second state to mandate that certain employers provide paid sick leave to employees.1 In addition, at least 18 cities, three of which are in California, have passed their own mandatory sick leave laws.2 In December 2014, the Office of the Labor Commissioner issued Frequently Asked Questions (FAQs) that clarified employers’ responsibilities under the new law.


Beginning on July 1, 2015, California employers must provide paid sick leave to employees. The Healthy Workplaces, Healthy Families Act (AB 1522) applies to all employers, regardless of size. The law requires either one hour of sick leave for every 30 hours worked or three days of sick leave per year. Employees accrue sick leave upon hire, although they may be restricted from taking earned leave until they have completed 90 days of employment.

New Year Brings New Liability When Using Outsourced Labor

Beginning January 1st, California law requires “client employers” to share certain compliance responsibility and liability with the companies that provide them with contract labor, such as staffing agencies. Client employers are defined as private employers with at least 25 employees that utilize at least six temporary workers from a staffing contractor, subject to limited exceptions.

Countdown To July 1st: Preparing For California's Mandatory Paid Sick Leave

Beginning July 1, 2015, California employers, with limited exceptions, must grant every employee 24 hours or three paid sick days each year. Even employers who are already providing paid sick leave face potential liability for failing to comply with the new law’s accrual, notice and recordkeeping requirements. Employers should start preparing now for this regulatory challenge as this state-mandated benefit will likely be fertile ground for new wage and hour class actions.

California eAuthority (December 2014)

Two California Appellate Decisions Expand the Scope of Tameny Claims Based on Whistleblower Laws; Ninth Circuit Defends Employer’s Discharge of Worker With a History of Intimidation and Threats; LA County Employee’s Retaliation Claim Fails but Disability Bias Claim Moves Forward; California Court Revisits Employer’s Duty to Reasonably Accommodate Disabled Employee Under FEHA; San Francisco Board of Supervisors Approves “Retail Workers’ Bill of Rights”

DLSE's Digest of New California Employment Laws

The California Division of Labor Standards Enforcement compiled a booklet of new California employment laws, as well as some bills that did not make the cut.

California Confusion over Paid Sick Leave

Per Labor Code 2810.5, employers must provide non-exempt workers with a Wage Theft Notice at the time of hire and after certain changes to wages and other covered matters.

Another State Requires Paid Sick Time

We have reported on jurisdictions such as New York City and Connecticut passing sick leave laws. We can now add California to this growing list. The Golden State recently passed the Healthy Workplaces, Healthy Families Act of 2014 requiring employers to provide sick leave to their employees.

California Supreme Court Denies Review of Cell Phone Reimbursement Case

The California Supreme Court has denied a petition to review Cochran v. Schwan’s Home Service, Inc., Court of Appeal of California, Second Appellate District, Division Two, No. B247160 (August 12, 2014). As a result of the court’s decision, an appellate court ruling that found that employers must reimburse employees for the business use of personal cell phones in some circumstances will stand. Employers should consider taking measures accordingly to minimize the risk of class action litigation.

California eAuthority (November 2014)

Who Decides the Issue of Class Arbitration? Ninth Circuit Dismisses Worker’s “‘Sweeping Conclusory Allegations’ of Unequal Treatment”; California Court Overturns Employee’s Jury Verdict in Reverse Discrimination Case; California’s New Sick Leave Landscape—Your Paid Leave Questions Answered; From the Blog: FAAAA Does Not Preempt California Meal and Rest Period Requirements.

How Different is California From the Rest of the United States?

It has been said that in many ways—including politically—the Golden State seems to march to the beat of its own drum. Accordingly, it comes as little surprise that the red Republican breaker that swept across the United States in last Tuesday’s election caused only a small wave in deep blue California.

California Legislation 2014

California Governor Jerry Brown has signed into law a number of bills that will impact the employer community. A brief summary of these new laws, along with links to the bills, can be found below.

California Court Finds Lack of Evidence Undermines False Claims Act and Retaliation Claims

The Southern District of California recently issued a favorable ruling for employers under both the False Claims Act and California’s retaliatory discharge provision codified at California Labor Code section 1102.5. The court not only rejected the relator’s claims, but it also resolved all issues in the employer’s favor on summary judgment.

San Diego Minimum Wage Ordinance Put On Ice

San Diego’s hotly contested minimum wage ordinance has been put on ice until at least 2016. The City Council approved the ordinance in July and then later overrode the mayor’s veto. A petition drive by San Diego business leaders has now succeeded in forcing the issue to the ballot.

California Law Expands Scope of Liability of Employers that Use Labor Contractors

Executive Summary: California employers that hire temporary workers now share liability with staffing agencies for certain violations of the state's labor laws. On September 28, 2014, California Governor Jerry Brown signed into law Assembly Bill 1897, a controversial bill that significantly expands the scope of liability of employers that contract with staffing agencies. The full text of the bill is available on the California Legislature's website:

Bullying in the Workplace: California’s New Training Requirement

Everyone remembers a bully in junior high school. She might have been the mean girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some people never graduate from junior high—mentally, at least—and some of those miscreants are now employed in your workplace. What is an employer to do? California has an answer.

Governor Brown Signs End of Session Employment Laws Part II

Here are some of the other employment laws that Governor Jerry Brown has signed, which will result in new obligations and liabilities in 2015.

California Expands Training and Staffing Requirements for Assisted Living Facilities and Enacts Workplace Safety Bill to Address Violence in Hospitals

California recently enacted two laws that expand the training and staffing requirements for assisted living facilities in the state and another measure that requires hospitals to implement a workplace violence prevention plan.

California Takes the Lead Again in Data Breach Laws

California has taken the lead once again in the area of data breach notification laws. In 2002, California was the first state to pass a law requiring companies to notify affected individuals of the breach of their personal information. On September 30, 2014, California’s governor signed into law the first statute requiring businesses to provide free identity theft prevention services to subjects of a breach.

California Becomes First State to Require Credit Monitoring Services Information Following a Data Breach

An amendment to the California data breach notification statute requires companies that experience a data breach to include information in the notification that if identity theft prevention and mitigation services are provided, they must be provided for at least 12 months to affected persons at no cost if the breach exposed or may have exposed certain personal information. This is the first time any state has imposed such mandates. The new law, AB 1710, signed by Governor Jerry Brown on September 30, 2014, also expands the application of safeguard requirements for personal information and further prohibits certain uses and disclosures of Social Security numbers. The new law becomes effective January 1, 2015.

California Law Protects Unpaid Interns and Volunteers from Harassment and Discrimination

California has become the third state in the country, after New York and Oregon, to ban sexual harassment and discrimination in the workplace directed toward unpaid interns.

Bullying Be Gone – New California Law Makes Anti-Bullying Training For Employers' Supervisors A Must

Since 2004, California employers with 50 or more employees have been required to provide their supervisors with sexual harassment training. Effective January 1, 2015, these employers will have an additional responsibility. Governor Jerry Brown signed A.B. 2053 into law on September 9, 2014, mandating that covered employers add anti-bullying training into their current sexual harassment training curriculum.1 While the new law codifies much of what employers may already be doing, it sets forth specific requirements they must follow starting January 1, 2015.

California eAuthority (September 2014)

Quit or Retired? It Makes No Difference When It Comes to Paying Final Wages in California; California Legislative Update: September 2014; Ninth Circuit Finds Police Officer with ADHD Not Disabled Under ADA; A Bird’s Eye View of the DFEH (Part 3): An Interview with Patti Perez on Reasonable Accommodations, the Interactive Process, and Companion Animals; California Court: Exceeding Break Times and Falsifying Time Records Is Grounds for Disqualification from Unemployment Benefits: From the California Blog: California Appellate Court Rules That California’s Prevailing Wage Laws Do Not Apply to Off-Site Fabrication.

California Governor Brown Signing More New Employment Laws at End of 2014 Session (Part I)

The 2014 legislative session is over. But employers will be remembering this one for a long time. California Governor Jerry Brown signed a host of new laws at the end of the session. Many deal with narrow-cast and public sector-related funding issues, which I won't cover here. (You're welcome).

California's 2014 Bill Signings and Vetoes are Almost Complete

California Governor Jerry Brown has until next Tuesday, September 30, to sign or veto bills recently passed by the California Legislature.

Recent Changes to California Laws—the Healthcare Perspective

The efforts made by professional athletes seeking workers’ compensation benefits for injuries that they sustained on the playing field has resulted in a considerable amount of drama in the press. As a result, the California legislature has amended the state Workers’ Compensation Act to include coverage for some athletes. In-state athletes are covered. Out-of-state professional athletes may be covered if (a) the athlete played at least two years for a California sports team; or (b) played more than 20 percent of his or her career for a California sports team. While the situation is unlikely to arise for most healthcare providers or institutions, if a professional athlete seeks medical treatment, it may be wise to consider asking if the injury is work-related.

More New California Employment Laws... Anti-Bullying Training and Unpaid Intern Harassment

The Governor has signed or is about to sign two more employment laws:

The California Law-Making Baton Passes From Legislature to Governor

By its own declaration, the California Legislature finished its 2013-2014 session in the early morning hours of Saturday, August 30 – a day early. Those bills it passed are now on the way to, or pending before, Governor Jerry Brown. The Legislature is in recess, with adjournment scheduled for November 30, 2014.

Who's in Control Here? California's Supreme Court Establishes New Standards for Potential Franchisor Liability for Employee Tort Claims

On August 28, 2014, the Supreme Court of California, in Patterson v. Domino's Pizza, LLC, decided whether a franchisor was entitled to summary judgment on the plaintiff's claims that the franchisor was vicariously liable for alleged tortious conduct by the franchisee's employee. In a 4-3 decision, the court held that a franchisor becomes potentially liable for the actions of a franchisee's employees only if the franchisor:

California Becomes Second State to Offer Paid Sick Leave

Over the holiday weekend, California became only the second state (after Connecticut, which began granting paid sick leave in 2012 and just passed more tweaks to it) to guarantee at least some annual paid sick leave for most full and part-time employees. Assuming Governor Brown signs the bill, California’s law would be the tenth in the nation at the state or local level that requires employers to provide paid sick leave. The bill, entitled the “Healthy Workplaces, Healthy Families Act,” passed with hefty majorities in the Assembly and Senate, and Governor Brown has indicated that he plans to sign it. That total would match the ten states that have passed preemption laws that ban any locality from passing paid sick leave legislation.

California Enacts Paid Sick Leave

The Governor signed AB 1522, which confers upon most California employees paid sick leave. The law is somewhat similar to San Francisco's paid sick leave ordinance.

California Supreme Court Rejects Attempt to Hold Franchisors Responsible for Franchisee’s Employment Actions

On Aug. 28, the California Supreme Court handed down an important decision addressing vicarious liability for franchisors in the employment context.

California Legislature Passes Mandatory Paid Sick Leave Bill

On Saturday, August 30, 2014, in the early morning hours and amid controversy among labor supporters, the California legislature passed a bill that provides workers with three paid sick days per year. Governor Brown enthusiastically endorsed the law’s passage and is expected to sign it very shortly. Assuming the governor signs the legislation, it will take effect on July 1, 2015.

California eAuthority (August 2014)

California Supreme Court: Holding Franchisor Liable as Employer Depends on Level of Control Over Day-to-Day Employment Decisions; California Court Interprets Vague Language in Arbitration Agreement in Favor of Employee; California Legislative Update: August 2014; A Bird’s Eye View of the DFEH: An Interview with Patti Perez (Part 2); From the California Blog: Employer Required to Reimburse Employees for Personal Cell Phone Use Despite Unlimited Minutes Plans

California Court of Appeal Issues Expansive Expense Reimbursement Ruling

A California Court of Appeal recently issued a decision in Cochran v. Schwan’s Home Services, Inc., B247160 (Aug. 12, 2014) that took an expansive view of an employer’s obligation to reimburse employees’ business expenses. The trial court determined that no expense was incurred, and no reimbursement owed, unless the employee had to pay something out of pocket, above and beyond the expense to maintain the employee’s cell phone for personal use. The appellate court disagreed, finding that an employer is obligated to reimburse an expense, even if the employee has incurred no additional cost associated with the business use of the phone. In light of this decision, employers should conduct a careful and wide-ranging review of their reimbursement policies and take a hard look at what actually happens “in the field.” - See more at:

CA Governor Signs Two Wage-Hour Bills

Governor Jerry Brown signed a couple of wage-hour laws, which will take effect 1/1/15. Neither is earth-shattering, but affected employers take note:

Last 2014 Lap for the California Legislature

The California Legislature returned from its summer recess on August 4 for the sprint through the last days of the final year of the 2013-2014 session.

Back to School! 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-aged children should review California’s laws, which provide certain rights to employees to take time off from work to deal with school-related issues.

Can You Hear Me Now: Employers in California Must Reimburse Employees for Mandatory Work-Related Calls on Personal Cell Phones

Executive Summary: A California Appeal Court has held that employees are only required to show that they were required to use their personal cell phone for work-related calls to be entitled to reimbursement under California Labor Code § 2802. In reaching this conclusion, the appeal court held that it does not matter whether the phone bill is paid by a third person or not paid at all. See Cochran v. Schwan's Home Service (Aug. 12, 2014).

California Court of Appeal: Employers Must Reimburse Employees for Cell Phone Use - Even if Plan is Unlimited

The Court of Appeal made an unprecedented ruling regarding the employer's obligation to reimburse employees for business use of personal items; here, a cell phone.

Federal Law Does Not Preempt State Unfair Competition Claim, California Supreme Court Rules

A lawsuit against a trucking company for allegedly misclassifying drivers as independent contractors under California’s Unfair Competition Law (“UCL”) was not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”), the California Supreme Court has ruled unanimously. P. ex rel. Harris v. Pac Anchor Transp., Inc., No. S194388 (Cal. July 28, 2014). The Court found the lawsuit did not relate to the company’s “price, route or service,” the concerns of the federal law. Therefore, the Court allowed the State of California’s lawsuit for unfair competition arising from the company’s alleged violations of California’s labor and insurance laws to proceed.

California eAuthority (July 31, 2014)

Motor Carriers Face Uphill Battle After California Supreme Court Decision; A Bird’s-Eye View of the DFEH: An Interview with Patti Perez; Ninth Circuit Allows Deputies to Proceed with Sex Discrimination Suit; California Legislative Update: July 2014; California Family Rights Act Interference Claims Proceed; Court Endorses PTO Use for Exempt Employee Partial-Day Absences; San Diego City Council Approves Minimum Wage Increase and Sick Pay Ordinance; From the California Blog: Single Act of Disobedience Does Not Disqualify Employee From Unemployment Benefits, California High Court Rules.

Pot Pourri of Recent Cases I missed

There have been so many recent employment law decisions that I can't long-form blog them all. So, here's a quick roundup of three recent, significant rulings -

City of San Diego Imposes Minimum Wage Hike and Sick Pay Ordinance

Rejecting a call to place a proposed minimum wage hike on the November ballot as a referendum item, on July 14 the San Diego City Council approved an ordinance raising the city’s minimum wage to $11.50 per hour by 2017.

California Governor Signs Bill Giving Small Businesses Extra Time To Comply With ACA 07/11/2014

On July 7, 2014, Governor Jerry Brown signed legislation that will give small business owners additional time to comply with the Affordable Care Act (ACA). The bill takes effect immediately as an urgency statute.

Court Determines California Teacher Tenure Laws Are Unconstitutional

On June 10, 2014, Judge Rolf M. Treu of the Superior Court of California for the County of Los Angeles issued an opinion in Vergara v. California,[1] striking down provisions of the California Education Code as unconstitutional. The sections of the California Education Code in question concerned teacher tenure (the so-called “Permanent Employment Statute”), dismissal (the “Dismissal Statutes”) and layoffs (known as “Last-In-First-Out” (LIFO)).[2] The court held that these statutes violate the equal protection clause of the California Constitution because they prevent students from accessing their fundamental rights to equal education by adversely affecting the quality of the education they are afforded. The statutes were held to “cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students but with particular detriment to minority and/or low income students.” Vergara at 4.

"Pay Me, Or Else...": California Court Rules Employee's Pre-Litigation Qui Tam Threat is Extortionate

A California appellate court recently issued a warning to employees who try to negotiate settlements with their employers by making veiled threats to report an employer's real or imagined criminal activity. In Stenehjem v. Sareen, No. H038342 (Cal. Ct. App. June 13, 2014), the court held that an employee's pre-litigation settlement demand was extortionate where the employee threatened to expose criminal activity by filing a qui tam action under the federal False Claims Act unless the employer tendered payment. This is an encouraging legal development for employers, and may signal an increasing willingness of the courts to curtail over-the-top pre-litigation settlement practices.

Employers Are Not Required to Provide Transit Fringe Benefits—Except in California

Since the Golden State sometimes can be a bellwether for national trends, employers nationwide may want to keep an eye on what’s occurring in California regarding commuter benefits. Certain employers in the San Francisco Bay Area have less than six months to comply with a new law that requires them to provide commuter benefits to employees. The law is intended to help reduce air pollution and alleviate traffic congestion in the Bay Area by encouraging employees to take mass transit, vanpools, carpools, or bicycles, or to walk rather than drive alone to work.

California Court Rules Teacher Tenure Statutes Unconstitutional

On June 10, 2014, the trial court judge in Vergara v. State of California issued a decision striking down as unconstitutional five provisions of the California Education Code regarding public school teacher tenure procedures.1 The plaintiffs, nine California public school students, argued that the five challenged statutes violate their fundamental rights to an equal education by adversely affecting the quality of the education they receive from the state.

Court of Appeal: Extortion Is Not a Legally Protected Pre-Litigation Demand

Jerome Stenehjem sued his former employer, Akon, Inc., and Surya Sareen, Akon‘s president and chief executive officer, for defamation, among other causes of action.

An Employer’s Guide to California’s Heat Illness Prevention Regulations

As the days grow warmer, California employers with outdoor places of employment should think about compliance with California’s Heat Illness Prevention Regulations (Cal. Code of Regs. tit. 8, § 3395). To comply with the regulations, California employers should take four essential steps:

California eAuthority (April 2014)

California Court Finds Employers Can Seek Evaluation After Employee Returns From FMLA Leave; California Court Gives the Green Light for Arbitration of Wrongful Termination Suit; Contract That Shortens Time for Bringing Employment Claims Rejected by California Court.


To combat high unemployment rates amongst individuals with criminal histories, in recent years many state and local government have enacted “Ban the Box” laws. These laws are so named because they generally prohibit employers from asking applicants about their criminal histories early in the hiring process—including by requiring applicants to check a box on an employment application indicating the existence of a criminal history. San Francisco recently enacted such a law, which tightly regulates employers.

California Court of Appeal: Fitness for Duty OK after Reinstatement from FMLA Leave

Susan White was an investigator for the LA County District Attorney. She makes a number of errors and acted erratically over the course of several months. She was making her co-workers nervous about her judgment. She was in a dangerous job, sometimes involving arrest warrants and the like. She had problems giving testimony at trials, resulting in a defense lawyer filing perjury charges against her.

California Supreme Court Hears Arguments on Whether Discrimination Claim Barred if Employee Used Another’s Social Security Number When Applying for Position

The California Supreme Court recently heard oral arguments in an appeal brought by a former employee who claims the lower courts incorrectly determined that his disability discrimination claim was barred because he misappropriated someone else’s Social Security number to apply for the job.

California Supreme Court Hears Arguments on Whether Discrimination Claim Barred if Employee Used Another’s Social Security Number When Applying for Position

The California Supreme Court recently heard oral arguments in an appeal brought by a former employee who claims the lower courts incorrectly determined that his disability discrimination claim was barred because he misappropriated someone else’s Social Security number to apply for the job.

California Chamber's Job Killer List - Employment Law

Contrary to what you may think, the California Legislature has not finished perfecting the laws governing the California workplace. But, they persevere.

Undocumented Worker Case Before California Supreme Court

The California Supreme Court has decided to hear a case that could impact the ability of undocumented workers to collect back wages or sue employers for discrimination in California, and may prove instructive in other courts that periodically have to tackle these issues. The case is Salas v. Sierra Chemical Co. (Case No. S196568), and the California Supreme Court will consider whether an employee’s use of false documentation (in this case, a Social Security number) to obtain employment precludes future actions by that employee for discrimination (disability discrimination here).

Former Employee Ordered to Pay $100,000 in Attorneys’ Fees for Bringing “Vexatious” FEHA Action After Being Fired for Sexual Harassment

Robert v. Stanford University, H037514 (February 25, 2014): The California Court of Appeal recently affirmed an award of $100,000 in attorneys’ fees to a prevailing employer in a case in which a former employee brought a frivolous and unsubstantiated claim of discrimination under the Fair Employment and Housing Act (FEHA). The Court of Appeal upheld the award, even though the trial court had not issued a separate written order regarding the attorneys’ fees, because the trial court had made express oral findings on the record and applied the appropriate standards.


The California Immigrant Policy Center recently estimated that there are approximately 2.6 million undocumented immigrants working in California. Over the years, their advocates claim employers take advantage of their “illegal” status, e.g., by paying substandard wages. According to the National Employment Law Project, employers threaten to turn over these workers to Immigration and Customs Enforcement (“ICE”), after they try to organize a union or seek the benefits of wage and hour laws. Other acts can include (1) improperly conducting I-9 self-audits after employees filed workplace-based complaints, or in the midst of labor disputes or collective bargaining; (2) the misuse of the federal “E-Verify” system, which matches employees identification information against databases maintained by the Social Security Administration; (3) threatening to report employees’ family members immigration status to ICE; and (4) filing false reports to law enforcement causing review of employees’ immigration status.

Ninth Circuit Holds California PAGA Representative Actions Are Not Eligible for Removal Under CAFA

Last week, in Baumann v. Chase Investment Services Corporation, the Ninth Circuit Court of Appeals held that representative actions brought pursuant to the California Labor Code Private Attorneys General Act (PAGA) are not sufficiently similar to Rule 23 class actions for removal to federal court under the Class Action Fairness Act (CAFA).

The De Minimis Doctrine Is Alive and Well in California

On March 7, 2014, in Troester v. Starbucks Corporation, the U.S. District Court for the Central District of California applied the de minimis doctrine and granted summary judgment to the employer in a putative class action seeking allegedly unpaid minimum and overtime wages, along with derivative penalties, for time spent after the plaintiff clocked out for the day.

CA Supreme Court Will Answer Ninth Circuit's Suitable Seating Questions

We wrote an article about the California wage orders' "suitable seating" requirement here.

California Court of Appeal SLAPPs Claim for Breach of Settlement Agreement

Perhaps you have read about the EEOC's recent lawsuits attacking severance agreements as allegedly containing illegal provisions, because they impede the EEOC's work. The EEOC is challenging everything from "cooperation clauses," to general releases that broadly preclude the releasing employee from bringing future claims. You know, in exchange for money. Here's an example of what the EEOC is doing.

Poisoning a Coworker is Outside the Scope of Employment, California Court Rules

A California Court of Appeal has ruled that a medical staffing company was not vicariously liable for its medical assistant who poisoned a coworker while on assignment at a hospital. Montague et al. v. AMN Healthcare, Inc., No. D063385 (Cal. Ct. App. Feb. 21, 2014). The Court found the medical assistant’s “highly unusual and startling” actions occurred outside the scope of her employment and affirmed summary judgment in favor of the staffing company.


Suppose an employee complains of sexual harassment by a supervisor. The supervisor admits that sexually inappropriate conduct took place, but claims the complainant was the instigator. Neither the employee nor the supervisor offers other witnesses who might shed light on what really occurred. What do you do?

University Entitled to Fee Award after Defending Meritless Discrimination Claim, California Court Rules

Finding an employee’s lawsuit under the California Fair Employment and Housing Act (“FEHA”) was “without merit[,] frivolous and vexatious,” the California Court of Appeal has affirmed an award of attorneys’ fees in the amount of $100,000 in favor of the employer. Robert v. Stanford Univ., No. H037514 (Cal. Ct. App. Feb. 25, 2014). The Court further ruled that the trial court was not required to issue a separate written opinion to support its ruling.

California Regulatory and Legislative Developments: The 2014 Session of the California Legislature

So far, as the second year of a two-year California legislative session, 2014 has been more noteworthy for what hasn’t happened, than for what has. The Legislature made no attempts to override any of the Governor’s 2013 end-of-session vetoes. Rather, legislators have re-introduced bills to try again to pass them and get the Governor’s signature, or to tweak previous unsuccessful proposals in an effort to win the Governor’s approval.

California eAuthority (February 28, 2014)

San Francisco Mayor Signs Ordinance to “Ban the Box” on Employment Applications and more....


All employers will be faced at some point with ending an unsuccessful employment relationship. California is an “at-will” state, so an employer may terminate an employee for any reason except an illegal one (for example, because of an employee’s race or gender). Sound simple? Not so fast. The numerous legal restrictions surrounding the termination process give employers pause even when making legitimate personnel decisions. Of course, a hasty personnel decision can cost an employer far too much—in legal fees, management time, damaged client relations, and negative employee morale. To reduce the legal risk associated with terminations, employers should keep a few key concepts in mind.

Getting Down to Business: Highlights of New California Employment Laws

With the start of the new year, it is the perfect time for employers to ensure that their policies reflect the changes in California law. We covered many of the laws affecting employers in our “California Legislative Update 2013” article and in my three-part blog series, “How the New California Laws Will Impact Your Business in 2014 and Beyond.” Part one of the series covered recent wage and hour legislation; part two covered EEO, disability, and leave legislation; and part three covered immigration-related legislation.


We previously wrote about protecting employee privacy when responding to subpoenas for personnel records. (See “Employee Privacy: Responding to Subpoenas,” September 27, 2013.) This article addresses the related topic of employee medical privacy during litigation and the discovery process. Even if your company is not currently involved in litigation, it is essential to understand the privacy issues that may affect the organization’s defenses down the road.

California Employment Laws That Will Take Effect in 2014

As usual, the California legislature has been busy. The following is a summary of new employment-related laws that will take effect in the new year. Unless otherwise stated, the effective dates are January 1, 2014.

California Legislative Update for 2014

California has one of the most proactive legislatures in the nation with respect to labor and employment matters. The coming year will bring several significant changes, new laws and obligations of which businesses with California operations should be aware. We hope you find the below summary informative and look forward to working with you to ensure compliance as you move into 2014.

California Employers Must Timely Post Undertaking to Appeal Labor Commissioner Ruling

Must. Igor Palagin was a welder. He filed a labor commissioner claim for underpayment against Paniagua Construction. Paniagua claimed Palagin was not its employee; rather, he was a subcontractor. The DLSE found in favor of Palagin.


Several new laws taking effect in 2014 will significantly change the practices of California employers. This article summarizes them and includes tips on how to comply. The bills become law on January 1, 2014, unless otherwise noted.


This article is Part 2 of a two-part series providing an overview of new federal and California employment laws.

New California Employment Laws Effective in New Year

Employers with operations in California should ensure their policies and practices are in compliance with the state’s new employment laws going into effect on January 1, 2014. The new laws will affect the day-to-day operations of many businesses.

CalChamber's List of New California Employment Laws for 2014 and Beyond

Our friends at the California Chamber of Commerce posted this long list of new, California employment laws that will take effect in 2014. You can review the list here. The list also includes the San Francisco ordinance allowing requests for flexible schedules.

How the New California Laws Will Impact Your Business in 2014 and Beyond, Part 3: California Immigration Related Legislation

The final post in this three-part series on the newly-signed legislation in California covers the three immigration-related bills that Governor Brown recently signed. I also discuss two significant bills that the governor vetoed.

Court of Appeal: State Anti-Hacking Criminal Statute Applies to Employee

Childs was a senior engineer for the City and County of San Francisco. Via a series of events, he assumed significant control over a major part of the city's IT infrastructure, against the wishes of management. I'm oversimplifying here. The opinion contains all the gory IT details, and there are many.

California Legislative Update 2013

Governor Jerry Brown recently signed bills enacting several new employment statutes, marking the end of the California Legislature’s 2013 regular session. A brief summary of these new laws, along with links to the bills, can be found below.

The Going Gets Steeper: 2013 California Employment Legislation Affecting Private Sector Employers

The California Legislature concluded its 2013 regular session on September 12 with a flourish, sending a total this year of 896 bills to Governor Jerry Brown for approval (of 2,256 introduced). By the signing deadline last Sunday evening, Governor Brown had signed 800 bills into law, and vetoed 96 (11%).

New California Law Protects Stalking Victims from Discrimination and Retaliation

Protection from discrimination and retaliation has been extended to employees who are victims of stalking under an amendment to the California Labor Code, Sections 230 and 230.1. The prior version of the law covered only victims of domestic violence and sexual assault. The amended law prohibits employers from discharging, discriminating against, or retaliating against employees who need to take time off from work to address issues related to domestic violence, sexual assault, and stalking. It also prohibits discrimination and retaliation based on the employee’s status as a victim of domestic violence, sexual assault, or stalking and requires employers to provide certain accommodations for the safety of such victims. The law becomes effective on January 1, 2014.


In the next two years, two new laws will affect millions of workers providing home care to the elderly, disabled, and/or children. In California, the Governor recently signed AB 241, which gives “personal attendants” the right to overtime in certain circumstances. AB 241 will be effective on January 1, 2014, but will expire on January 1, 2017, unless the Legislature extends the date. Similarly, the Department of Labor (“DOL”) created new rules significantly limiting the scope of the Fair Labor Standards Act’s (“FLSA”) existing overtime exemptions for domestic service workers providing “companionship” and those who live in the households where they provide care. The new FLSA rules are effective on January 1, 2015.

The Going Gets Steeper: 2013 California Employment Legislation Affecting Private Sector Employers

The California Legislature concluded its 2013 regular session on September 12 with a flourish, sending a total this year of 896 bills to Governor Jerry Brown for approval (of 2,256 introduced). By the signing deadline last Sunday evening, Governor Brown had signed 800 bills into law, and vetoed 96 (11%).

California Increases Regulation of Home Care Agencies

On the heels of the U.S. Department of Labor’s expansion of the Fair Labor Standards Act’s minimum wage and overtime rules to home care workers, California home care agencies will face another challenge with the recent passage of the Home Care Services Consumer Protection Act (AB 1217). This law provides for the licensure and regulation of home care organizations and registration of home care aides. It takes effect on January 1, 2015 and will be administered by California’s Department of Social Services.

The Going Gets Steeper: 2013 California Employment Legislation Affecting Private Sector Employers

The California Legislature concluded its 2013 regular session on September 12 with a flourish, sending a total this year of 896 bills to Governor Jerry Brown for approval (of 2,256 introduced). By the signing deadline last Sunday evening, Governor Brown had signed 800 bills into law, and vetoed 96 (11%).

The California Grizzly Elbows Uncle Sam: New California Immigration Requirements For Private Sector Employers

Partly in response to the inaction in Washington on immigration reform, the California Legislature, in the annual session concluded in mid-September,1 passed several bills which were signed by Governor Brown that either create or increase penalties for employers that consider an applicant's or employee's immigration status, or retaliate against an employee because of that status.2

Punitive Damages May Be Suitable Where Employee Complaints were Ignored, California Court Finds

A female construction worker who repeatedly complained about inadequate and unclean toilet facilities, and whose complaints were not addressed or remedied by her employer, could pursue her claim for punitive damages under the California Fair Employment and Housing Act, the California Court of Appeal has ruled. Davis v. Kiewit Pacific Co., No. D062388 (Cal. Ct. App. Oct. 8, 2013). Reversing summary judgment in favor of the employer, the Court ruled that sufficient questions of fact existed regarding whether the project manager on a $170-million construction project and the employer’s equal employment officer were “managing agents” who participated in or ratified the discriminatory conduct, thereby warranting the imposition of punitive damages against the employer.

Bills Signed into Law in California will Benefit Undocumented Residents

On October 5, 2013, California Governor Edmund G. Brown, Jr. signed several pieces of immigration-related legislation that will benefit undocumented residents. The office of the Governor described the laws as designed to “enhance school, workplace and civil protections for California’s hardworking immigrants.” The Governor added that “While Washington waffles on immigration, California’s forging ahead, . . . I’m not waiting.”

Two More Changes to California Employment Law

California Governor Jerry Brown signed into law two more employment law-related bills.

California Private Sector Employment Legislation Update: September 23, 2013

Saving the best for last: The hundreds of bills passed in the California Legislature’s last two weeks of the 2013 session are either on, or still making their way to, Governor Jerry Brown’s desk. He has until the second weekend in October to sign or veto them. Historically, the governor’s veto rate in his second administration has been around 15 percent. Governor Brown traditionally waits until it is close to the signing deadline to make his decisions on end-of-session bills, so expect most of the action to occur in the second week of October.

California Private Sector Employment Legislation Update: September 12, 2013

It’s all over now but for the gubernatorial pen strokes – or not.

California Private Sector Employment Legislation Update: September 6, 2013

The week of September 9 is the last week of the 2013 session of the California Legislature. Of the 2,256 regular bills introduced in the Senate and Assembly, the finalists will be sent on to Governor Brown’s office for approval or veto. The Governor has a maximum of 30 days to sign or veto a measure once it is presented to his office.

Court of Appeal: No Duty to Pay for Defendant Employee's Choice of Lawyer

Several years ago, a radio station conducted a contest that involved consuming water. The one who "held it in" the longest would win a prize. Unfortunately, one contestant died from drinking too much.

Half a SLAPP Still Hurts

Jessica Chang sued her former employer and an individual named Howard Cho for sexual harassment. Cho counter-sued Chang for IIED and defamation.


Many employers believe that “assistive animals” are limited to service dogs for the visually or hearing impaired. What if an employee wants to bring a chinchilla, snake, or ferret to work for “emotional support?” Under state and federal regulations, employers may have to allow these and other animals in the workplace as a “reasonable accommodation” for disabled employees.

California Governor Signs Bill Limiting Attorneys’ Fees for Employers in Wage Cases

California Governor Jerry Brown on August 28, 2013, signed into law a measure limiting the ability of employers to obtain attorneys’ fee awards if they are prevailing defendants in wage disputes.

New California Law Limits Successful Employers’ Right to Recover Fees and Costs in Wage Cases

California Governor Jerry Brown has signed legislation (S.B. 462) amending the California Labor Code to limit employers’ ability to recover attorney’s fees and costs in actions for nonpayment of wages. Previously, California case law left open the possibility that Labor Code Section 218.5 permits the prevailing party, either the employee or employer, to recover fees and costs. Effective January 1, 2014, employers may recover their defense costs only if they prove that an employee brought the action in “bad faith.”

California Private Sector Employment Legislation Update

We are now in the last two weeks of the 2013 California legislative session. August 30 was the formal deadline for any bills to be acted upon to clear the fiscal committees of either house this session. From here on out, according to the legislative calendar, there will be floor sessions only -- no committee, other than conference committees and the Rules Committee, may meet for any purpose. And Friday, September 6, is the last day to amend a bill on the floor – again, according to the legislative calendars. But be alert for the notorious “gut-and-amend” bills in these final weeks.


This article is the first installment of a two-part article in which we summarize recent California Supreme Court decisions in employment law. The California Supreme Court issued several employment law-related decisions during the past year, all of which may affect California employers.

California Leave Law Expanded to Cover Emergency Rescue Personnel and Reserve Peace Officers

An amendment to the California Labor Code mandating temporary leaves of absence for firefighters, reserve peace officers, and emergency rescue personnel (Labor Code Section 230.4) will become effective on January 1, 2014.

California eAuthority (August 2013)

California Supreme Court Action in Piece-Rate Pay Case Causes Concerns About Alternative Pay Systems; Restricting the Activities of California On-Call Employees May Mean Having to Pay Them for Their Time; California Agencies Don’t Get Two Bites at the Apple When It Comes to Misclassification.

California Private Sector Employment Legislation Update

The California Legislature began its summer recess at the end of the day on Wednesday, July 3. It will return to work on Monday, August 5, for its final push towards adjournment on Friday the 13th of September. The following outlines major California legislative developments, as well as a summary of significant pending bills affecting California private employers.

California Wage/Hour Update (July 2013)

Appellate Court Attacks Piece-Rate Compensation – Again;Court Clarifies Impact Of Multi-Tasking On Exempt Status.

California EAuthority (June 2013)

No Administrative Exemption Under California Law Where Worker Did Not Receive Fixed Salary California Employer’s Policy of On-Duty Meal Periods Will Be Litigated as a Class Action Implied Covenant of Good Faith and Fair Dealing Saves California Employer’s Arbitration Agreement

Restaurant Industry Legal Alert: Answers To Frequently Asked Questions Concerning California's Human Trafficking Notice Requirements

In response to our June 6, 2013 Restaurant Industry Newsletter, we received several questions about whether California's human trafficking statute applies to all restaurants and drinking establishments. As a result, we are providing the following answers as a guide to help you determine whether you must comply with the statute.

California Private Sector Employment Legislation Update

May 31 was the deadline for most California state bills to pass their house of origin to be further considered in this year’s legislative session, so the winnowing proceeds.

Legal Alert: In An Effort To Raise Awareness Of Human Trafficking California Requires Certain Businesses And Establishments to Post Public Notices Regarding Victims' Rights

Executive Summary: The California Legislature has enacted a new law that requires certain businesses in the hospitality, transportation, and healthcare industries to post public notices regarding slavery and human trafficking or face stiff penalties. This new law became effective on April 1, 2013 and is the latest in California's efforts to combat this unlawful multi-million dollar industry.

CA Supreme Court: LA County Union Entitled to Home Addresses and Phone Numbers of Non-Union Employees

The California Supreme Court in a unanimous opinion addressed employees' privacy rights in the public sector union context. The decision has implications for non-union, private sector employers as well, so read on.

California Private Sector Employment Legislation Update

As many are aware, the California Legislature and Governor’s office are controlled by one party, unlike Washington, D.C. Thus, unlike in Washington, legislation introduced by the majority party in Sacramento has an excellent chance of passage by the Legislature. In fact, to date, virtually all committee and floor votes on bills affecting most private sector employers have been essentially party-line votes. There is less certainty in predicting what bills passed by the Legislature will be signed by Governor Brown, and thus become law.

California eAuthority (April 29, 2013)

California Piece-Rate Employees Entitled to Compensation for Each Hour Worked; One-Sided Arbitration Agreement Found Unconscionable by California Court; Suitable Seating Class Action Cases Are on the Rise in California; California Court Rejects Managers’ Overtime Misclassification Class Action.

Private Attorneys from Same Firm Cannot be Public Entity’s Advisor and Advocate in Single Matter, California Court Rules

“Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter,” the California Court of Appeal has ruled in an arbitration case involving the termination of a police officer. Sabey v. City of Pomona, No. B239916 (Cal. Ct App. Apr. 16, 2013).

California Chamber Releases First 2013 List of "Job Killer" Bills

The California Chamber of Commerce released this week its first 2013 edition of pending legislation it considers to be "job killers" if passed by the California Legislature and signed by the Governor.

Catching Up - Friday Pot Pourri

Here are a few of the cases I should have mentioned;.

California Employers Have Another Notice Posting Obligation – Have You Posted Your Human Trafficking Notice?

Human trafficking is one of the 21st century’s buzz phrases. There is some disagreement on exactly what human trafficking means, but regardless of precisely how it is defined, it is widely accepted as a detrimental practice that should be stopped. Accordingly, a wide variety of local, national and international governments and institutions have taken or enacted measures to address trafficking. Likewise, a number of businesses have promulgated internal self-governance policies with the aim of eradicating human trafficking from their supply chains.

Me Too? Too Far

"Me too" evidence is when the plaintiff attempts to prove discrimination against him or her by offering evidence that others suffered similar discrimination. The courts admit this evidence as proof of intent or motive, where it otherwise would be excluded as "character" evidence.

California Employers Facing Many Changes in 2013

In this podcast, Littler’s Christopher Cobey elaborates on employment laws that were recently passed in California. He provides insight on the significance of these laws for employers and human resources professionals and explains how they must comply in 2013.

California eAuthority (March 2013)

California Appellate Court Holds Employee Entitled to Reasonable Accommodation After Pregnancy Leave Ends; Court Rejects FEHA Claim Brought by Fired Department Manager; California Employer Should Have Engaged in Interactive Process Before Firing Employee; Tip Pooling Policy Held Lawful by California Court—So Long As Recipients Are Not Management Level.

California Supremes Expanding Employment Law Docket

The California Supreme Court is taking up several cases for review that will have significant effects on California employment law. Once the Supreme Court grants review, the lower court opinion is not precedent and cannot be cited in briefs or relied upon unless the Court says otherwise.

Annual Compliance Checklist for Employers

Employers periodically must comply with certain obligations imposed by law. These requirements arise annually or at other intervals, and are separate from those that arise when the employer hires or discharges employees. The following are some of the obligations employers should ensure are on their calendars for annual review.

California DIR: Friendly Reminder: Post Your Annual Injury and Illness Summary

A message from the California Department of Industrial Relations (online here):

Court of Appeal: Discharge of Executive Uncooperative in Investigation

Applied Signal fired John McGrory. One of his reports, Dana Thomas, complained to human resources that McGrory harassed / discriminated against her because of her sex / sexual orientation. Applied hired an outside investigator. McGrory did not like the investigator, but she exonerated him of mistreating Thomas. She did find, though, that McGrory was untruthful and uncooperative during the investigation. She also found that McGrory violated the company's anti-harassment policy because he made off-color jokes related to sex and national origin.

Legal Alert: California Rings In 2013 With New Employment Laws

Executive Summary: After the Mayans failed to predict the end of the world on December 21, 2012, it became apparent that California employers would have to comply with a string of new laws that take effect on January 1, 2013. Here is a summary of seven new employment laws to be aware of so you can revise your employment policies accordingly.

California Employers - Don't Forget your EITC Notice....

EITC? Huh? The California Legislature requires employers to give annual notices to all employees of their right to claim an Earned Income Tax Credit. Information and sample notices

Court of Appeal Endorses Business Judgment Jury Instruction in Discrimination Cases

The court of appeal in Veronese v. Lucasfilm issued a highly significant ruling that will bring some balance to jury instructions in discrimination cases.

New California Laws Effective January 1, 2013

The following chart lists the major pieces of employment legislation introduced in the California State Senate and Assembly during 2012 that were signed into law by Governor Jerry Brown. All of the bills listed become effective January 1, 2013.

The West Coast Employer Winter 2012

An update on current labor, employment, benefits and immigration issues for employers.


New federal and California laws affecting California employers will take effect on January 1, 2013. Employers should begin preparing for changes to their policies and practices in advance of the new year.


This article is Part 2 of a two-part series regarding new federal and California employment laws.

New California Law Expands Employee Access to Personnel Files

California Governor Jerry Brown has signed into law new requirements specifying when and how employers must respond to their employees’ requests for inspection and copying of their personnel files. The new requirements become effective January 1, 2013.

California Supreme Court to Review whether Car Insurance Stuffer Opens Employer to Suit

In a case that will impact employers whose employees use their own vehicles for work, the California Supreme Court is about to address whether an employer’s insurance covered a deadly automobile accident caused by an employee driving his own car. American States Ins. Co. v. Ramirez, No. S205073 (Cal. Oct. 24, 2012). The Court will consider whether a form included with the employee’s own insurance policy documents that listed him as a driver was part of the insurance policy, even though the employee’s vehicle was not listed as a covered vehicle in the policy’s declarations. The Court also will review whether this form created an ambiguity in coverage that should be construed against the insurer.

California eAuthority (November 2012)

California Appellate Court Allows Time Clock Rounding No Implied-in-Fact Arbitration Agreement Where Employee Had No Intention of Signing Court of Appeal Relies on “Motivating Factor” as Standard of Causation in FEHA Case California Court Affirms that Customer Lists Can Qualify as Trade Secrets

2013 New California Employment Laws

Our friends at the California Chamber of Commerce sent out this list of new California employment laws taking effect in 2013 (here). These new statutes are only part of the story though, as the California courts are busy issuing rulings that shape California employment laws. Let's not forget the federal agencies and courts doing their part as well.

California's New Social Media "Password Protection" Law Takes a More Balanced Approach by Accounting for Employers' Legitimate Business Interests

After a series of alleged incidents reported in the news media of employers (principally public employers) requesting or requiring access to employees' or applicants' personal social media accounts, legislators around the country rushed to introduce legislation in response to the public outcry. Maryland and then Illinois enacted the country's first two "password protection" laws. On September 27, 2012, California Governor Jerry Brown signed into law the nation's third such law that generally prohibits employers from requiring or requesting that an employee or applicant provide access to personal social media content. Unlike the Illinois and Maryland laws, however, California's law embodies a more balanced approach, taking into account employers' legitimate business interests. It is effective January 1, 2013.

What's New? California's Major 2012 Employment Laws Affecting Private Sector Employers

The members of the California State Senate and Assembly introduced 1,899 bills this year, and the legislature passed and sent to the governor 568 of them. On September 30, Governor Jerry Brown completed his work of signing or vetoing the bills presented to him.

California Joins Maryland and Illinois in Restricting Employers' Access To Employees' "Social Media"

On September 27, 2012, California Governor Jerry Brown signed into law Assembly Bill 1844, which prohibits employers from requiring or requesting an employee or applicant for employment to: (1) disclose a username or password for personal social media, (2) access their accounts in the presence of employers, or (3) divulge any personal social media. It also makes it illegal to discipline or retaliate against an employee or applicant for not complying with a request or demand for access to personal social media.

A Good Week for California's Pro-Labor Movement

Last week was a busy one at the Governor's office, where Governor Jerry Brown signed into law no less than three new laws with a pro-labor, pro-employee theme. The first two laws were a package deal, making California is the first State to enact legislation that prohibits employers and educators from requesting employees' and students' social-networking passwords. Gov. Brown announced that he'd signed the twin bills into law via a Twitter post on Thursday.

California (Surprisingly) Becomes First State to Take a More Balanced Approach to Social Media "Password Protection" Laws

Following the lead of Maryland and Illinois, California’s legislature, last week, sent to the governor for signature the nation’s third “password protection” law. Unlike the Maryland and Illinois laws, California’s pending statute takes into account employers’ legitimate business interests.


This article is Part 2 of a two-part series regarding recent California Supreme Court decisions in employment law.

California on the Verge of Pension Reform

After months of waiting, California Governor Jerry Brown presented a sweeping package of pension reform measures to the California Legislature. The reform measures primarily affect the pension benefits available to government employees who are hired on or after January 1, 2013.


This article is Part 1 of a two-part series providing an overview of recent California Supreme Court decisions in employment law. Part 2 of this article will be featured soon.

Court of Appeal: Desperate Housewives Case

A jury deadlocked on whether Touchstone wrongfully terminated Sheridan in violation of public policy (retaliation for her complaint she was battered). The trial court repeatedly rejected Touchstone's argument that non-renewal of annual contracts do not give rise to wrongful termination claims.

The West Coast Employer Summer 2012

An update on current labor, employment, benefits and immigration issues for employers.

Who's in Charge Here? Recent Decision May Cause Headaches for California Franchisors

California is the birthplace of the franchise business model. Today, there are approximately 62,000 independent franchisees operating in California, employing more than 1.1 million state residents.

Employer SLAPPed for Suing Ex-Employee

Robert Rogers is a former officer of Summit Bank, a local, Oakland bank. When Summit learned there were a number of anonymous, negative posts about it on Craigslist, it decided to sue Rogers for defamation. Here are some of his posts, according to the court

The West Coast Employer Spring 2012

Can Your Safety Program Take the Heat? Requirements of California’s New Wage Theft Protection Law. Courts Continue to Limit Arbitration Agreements in California. Educational Opportunities. Jackson Lewis News

California Public Policy Invalidates Parties’ Choice-of-Law Agreement, Federal Appeals Court Holds

A Georgia choice-of-law provision in a contract entitled, “Independent Truckman’s Agreement,” between California truck drivers and a Georgia company was unenforceable based on California public policy, the federal appeals court in San Francisco has held. Ruiz v. Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2012). The Court also ruled that California law applied in determining whether the drivers were employees or independent contractors. Vacating the lower court’s judgment in favor of a Georgia transportation company in a wage-hour class action suit, the Court remanded the case to the lower court for further proceedings to determine whether the drivers were employees or independent contractors.

California's Interests and Public Policy Trump Contract's Choice-of-Law Provision

Earlier this month in Ruiz v. Affinity Logistics Corporation [pdf], the Ninth Circuit ruled that California’s interests and public policy superseded a choice-of-law provision stating that Georgia law would govern disputes between a company and its purported independent contractor.

California Implements Significant Changes to the Agricultural Labor Relations Act

Effective January 1, 2012, California's Agricultural Labor Relations Act (ALRA) was amended in ways that will likely help unions to organize agricultural employees in California and obtain favorable labor contracts with agricultural employers.

The West Coast Employer (December 2012)

California Governor Signs New Employment Laws; Minimum Salary Requirement Increases for California Computer Professional Exemption Announced; New Nevada Law Bans Cell Phone Use While Driving; Viability of Key Defense to Be Considered by California Supreme Court; NLRB Workplace Posting Rule; State Posting Rules

California Businesses Cannot Let Guard Down

A lot is going on here in the Golden State. Governor Jerry Brown was reelected to a third term (after a hiatus of almost 30 years since the end of his second term), and since that time, California employers have been on edge wondering what type of anti-business measures he would sign into law. Although several bills that businesses feared either did not pass or were vetoed, the governor has signed into law a number of measures that should give employers concern.


Much of the legislation passed in 2011 goes into effect on January 1, 2012. Employers should update their employee handbooks or other policies to reflect these legislative and other changes. Here are some of the most significant changes facing California employers.

Court Takes the Legs Right Out from Underneath Plaintiff's Seating Case

In the first significant ruling of its kind, the Los Angeles Superior Court in Bright v. 99¢ Only Stores granted the defendant’s motion to strike the plaintiff’s representative Private Attorneys General Act (PAGA) allegations. The plaintiff, Eugina Bright, filed a complaint against 99¢ Only Stores in June 2009 alleging that the store failed to provide her, and all other cashiers, with suitable seating.

New California Employment Laws for 2012

A number of new employment bills making significant changes in California employment law and requiring review of employer human resources policies and employee handbooks has been signed by California Governor Jerry Brown. The new laws are effective January 1, 2012, unless otherwise indicated. We highlight what we believe to be the most significant below.

California Supply Chain Law Affects Large Retailers and Manufacturers Doing Business in California

Responding to a stated concern over human trafficking and goods that are produced by forced or child labor, the California Legislature passed the California Transparency in Supply Chains Act of 2010 with the goal of "ensur[ing] large retailers and manufacturers provide consumers with information regarding their efforts to eradicate slavery and human trafficking from their supply chains."1 This is the first state or federal law of its kind. Beginning January 1, 2012, every retailer and manufacturer doing business in California with annual worldwide gross receipts exceeding $100 million must conspicuously disclose on its website the extent to which it does the following:


Recently, Governor Brown signed into law a few key bills that mark significant changes for California employers. Employers should prepare now to comply with these new laws (most of which become effective January 1, 2012) and adjust their practices accordingly. Full texts of each of these laws can be found at:

Retailer Readiness is Key to Compliance with California’s Transparency in Supply Chains Act

On January 1, 2012, retailers must be in compliance with the California Transparency in Supply Chains Act of 2010. Compliance with the Act is relatively simple: retailers are not required to take any affirmative action to ensure that products in their distribution channel do not emanate from companies that rely on slave labor, but must post on their website what, if anything, they are doing to eliminate slave labor from their supply chains.

New Year Brings New Laws for California Employers

During Arnold Schwarzenegger's tenure as governor of California few new employment laws were enacted. This has changed under Gov. Jerry Brown. As the first year of his term concludes he has signed into law several bills that will affect California employers on January 1, 2012. From consumer credit reports to health care benefits, leaves of absence, and new wage and hour requirements, every California employer has something to prepare for in 2012.

Paddling on Each Side: How California Private Sector Employers Must Change Their Operations in 2012

In 2011, for the first time since 2003, California's legislative process was controlled by a governor and a legislature of the same party. Yet the results at the end of this year's session were not as one-sided as some had predicted or expected.

Employer Who Sues Ex-Employee Does Not Have to "Indemnify" Ex-Employee for His Attorney Fees

Nicholas Laboratories, LLC sued its former employee, Chen. Ultimately, the parties resolved the case. Chen sought reimbursement of his fees under Labor Code Section 2802.

California Governor Signs New Employment Bills

Below are brief explanations of these new laws that affect private employers along with links to the actual bill language. Each of these bills will become effective January 1, 2012. Ogletree Deakins is sponsoring seminars in Los Angeles (October 18), Orange County (October 19) and San Francisco (October 20) where attorneys will discuss these new legislative updates in more detail. On December 7, the firm also will conduct a webinar on the new California laws. For more information or to register for the webinar, contact Moira Cue at (310) 217-8191 (ext. 221).

California Governor Brown Signs Employment Bills at Last Minute

In my last post, I said that Governor Jerry Brown vetoed a bunch of ill-conceived laws. Well, I posted too soon, and I take that back.

California Bill Would Prohibit Mandatory E-Verify

On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

Court of Appeal: False Social Security Number = Unclean Hands = No Case

Vicente Salas worked for Sierra Chemical Company. He was seasonal, and was repeatedly laid off and re-hired. Along the way, he injured himself. The company allegedly denied him re-hire after he did not produce a release from his doctor. Salas claimed he was told he had to be 100% healed, which is one of those ADA no-nos. He sued for a variety of employment based claims, including disability discrimination, failure to provide reasonable accommodation, etc.


Every year, the California Supreme Court decides cases that have significant impact for California employers. In its most recent term, the Court addressed a variety of relevant employment issues. Below, we summarize some important cases, and also address additional key issues awaiting the Court’s review.

California Legislature Clarifies Paid Bone Marrow Leave

Governor Brown just signed SB 272, which clarifies last year's paid bone marrow /organ donation leave law. That law requires employers to grant up to five days' paid leave for bone marrow donation and up to 30 days' paid leave for organ donation.

Calif.'s Canary In The Employment Mine Shaft

California Department of Fair Employment and Housing (DFEH) Director Phyllis W. Cheng, speaking at the Jackson Lewis LLP-sponsored Association of Corporate Counsel (ACC) Labor and Employment Committee Meeting on Feb. 22, 2011, told the gathering of business lawyers that the agency would continue to pursue high-impact cases of “systemic discrimination” in the workplace as a means of leveraging its resources in a time of government austerity.

An Ounce Of Prevention Is Worth A Pound Of Litigation

Wading through complex employment laws is often a challenging endeavor for employers. This has been especially true during the last several years, as companies have been reorganizing their workforces, cutting costs and tightening their budgets to stay competitive. If you were one of these employers, it's likely that you were required to reexamine the classification of certain employees who, as a result of the change in their duties, no longer met the exemption requirements.

Court of Appeal: Employer's Lawsuit Against Terminated Employees Beats Anti-SLAPP Motion.

Overhill Farms received notice from the IRS that hundreds of its employees' social security numbers were invalid. The company gave employees a chance to correct the problem. Those who did not were terminated. The law imposes fines and potential criminal liability on employers who permit employees to work with false social security numbers.

California Court Rules Employer Had No Right to Eliminate Reduced Sales Quotas for Senior Agents.

In a case brought by insurance agents, the California appeals court has ruled that an employer may not unilaterally eliminate certain obligations to employees contained in a policy that did not have an indefinite duration. McCaskey v. California State Auto. Ass’n, No. H032186 (Cal. Ct. App. Oct. 29, 2010). Reversing summary judgment for the employer, the Court held that a triable issue of fact existed regarding the duration of the policy and allowed the case to proceed to trial.

California Court Allows Employer's Defamation Lawsuit to Proceed against Protestors.

An employer’s defamation lawsuit against protesters who wrongly accused it of racially motivated firings could proceed, the California Court of Appeal has ruled in an unpublished opinion. Overhill Farms Inc. v. Lopez, No. G042984 (Cal. Ct. App. Nov. 15, 2010). Affirming the denial of the protestors’ motion to dismiss the employer’s complaint, the Court rejected their argument that the accusations were a form of protected expressions of opinion. Instead, the Court found the protestors’ statements were factual assertions that the employer could challenge. The Court further ruled that Section 425.16 of the California Civil Code, commonly known as the “anti-SLAPP” law, did not preclude the employer’s defamation claim.

California Court Rules State Law Allows Cashier Not Given Suitable Seating to Pursue Civil Penalty Claim

Employers in California may be at risk for significant penalties under California’s requirement that employees be provided with “suitable seating,” under a ruling of a state appeals court in Bright v. 99¢ Only Stores, No. B220016 (Cal. Ct. App. Nov. 12, 2010). The case was brought under state Industrial Welfare Commission (“IWC”) Wage Order No. 7-2001(14), specifying the requirement, and the Labor Code’s Private Attorneys General Act (“PAGA”), which permits aggrieved employees to sue for civil penalties for a violation of the state Labor Code.

"Suitable Seating" Class Action Goes Forward

Retailers must provide "suitable seating" in accordance with the California Industrial Welfare Commission's Wage Order 7-2001, section 14. It says: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."


Elections have consequences for employers and their lawyers. Governor Brown may turn out to be a pro-business governor, sensitive to the delicate economic conditions employers face, persistent high unemployment, and the incredible patchwork of laws and regulations already daunting employers. Sure, and the Easter Bunny is on his short list for Labor Commissioner.


This year, as in years past, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a number of bills that would have significantly impacted employers, and signed a few about which employers should be aware. We summarize the key laws below.


The California Supreme Court decided significant employment law cases since our last review in 2009. The Court’s opinions address a number of topics of interest to employers: wage and hour law, harassment, arbitration agreements, attorney-client privilege, and the significance of “stray remarks.” However, the Court also left many issues for lawyers to wrangle with in the future. We summarize below the recently decided cases.


There are a number of ways employers can raise a former employee's ire. These include contesting an unemployment claim or reporting the former employee to a licensing agency. Sometimes ex-employees retaliate with litigation they would not have filed were it not for the employer's action. The ex-worker's claim may involve significant potential liability and defense costs, possibly motivating the employer to settle or dismiss the initial action.


The daily commute would be more pleasant if workers were paid for their time. The only thing that could make listening to music, talking on the phone, and sipping a hot beverage while driving more fun would be wages accruing with each lurch forward. Traffic jams, the risk of accidents, and insufferably bad driving no doubt would be less frustrating, too.


Whether it is menu planning, budgeting, negotiating leases or franchise agreements, monitoring the internet for the latest customer reviews, or getting food prepared and to the table, restaurateurs are pulled in many directions every day. With such diverse and unrelenting pressures, it is easy to overlook compliance with the many employment laws governing the workplace. Many restaurants are small employers, without the resources to employ human resources management. It is left to the chef, general manager, or owner to know the law and apply it correctly.

Retail Industry: Sanity Prevails in California.

It's true: the California appeals court struck down a particularly nutty employment law, one which required anyone who bought a Los Angeles supermarket to retain the prior owner's employees. The California Supreme Court is due to review the decision.


Every year, the California Supreme Court decides cases that affect the workplace. Here are some of the most important employment law opinions since our last update in July 2008.


An on-going debate regarding whether certain provisions of California’s Labor Code apply to public entities may be a bit closer to resolution. The Labor Code clearly applies to private employers. In some areas, however, it is silent as to its application to public employers. Fortunately, the California Court of Appeal recently shed some light on this issue. In Johnson v. Arvin-Edison Water Storage District, the Court held that California’s Labor Code provisions governing daily overtime, meal periods, and payment of wages upon separation of employment do not apply to water storage districts.


Like all employers, public-sector employers (such as government agencies) conduct internal investigations concerning a variety of issues. Some investigations are occasioned by claims of unfair treatment. Others result from possible unlawful activity in the workplace.


California law prohibits employees from waiving or releasing their rights to minimum wages, overtime, and other minimum protections. For example, Labor Code section 1194 prohibits agreements by employees to work for less than minimum wage or without receiving overtime. Section 206.5 prohibits releases of wages concededly due. Section 2804 prohibits an employee from waiving the right to indemnification under Labor Code section 2802 for expenses incurred in the scope of employment. Section 5001 bars the release of an employee’s claim for workers’ compensation benefits unless approved by the Workers’ Compensation Appeals Board.


Employers based in other states may send their workers to California on sales or service calls, for long-term consulting assignments or for brief meetings. Employers regularly employing workers in California learn - sometimes the hard way - about the many unique employment laws and regulations they must follow, particularly in the "wage and hour" arena. But then there are businesses whose workers enter California only sporadically or for short periods of time. Can it be that an employee who lives and works in Arizona is covered by Arizona law on Monday and California law on Tuesday just because she takes a business trip? Hint: If the answer were "no," this article would be much less interesting.


Lawsuits claiming harassment, discrimination or retaliation are expensive to defend. In an effort to resolve equal employment opportunity (EEO) issues before they become legal liabilities, most employers have developed and implemented procedures for dealing with internal EEO complaints. These internal procedures often involve a multi-step process used to evaluate whether the conduct at issue violates the organization’s policy and identify solutions to prevent inappropriate conduct from continuing.


Once again, Governor Schwarzenegger vetoed a majority of the workplace-related bills passed by the Legislature. Only a handful of new laws will directly affect employers. We summarize those laws, various bills that may reappear in the next legislative session, and a few additional developments below.


The California Supreme Court decided several significant employment law cases since our last summary in September 2007. The Court’s opinions address a number of topics, including expense reimbursement, employee privacy, government employee due process rights, leaves of absence, drug testing, and retaliation. The Court also accepted review of several decisions that will affect employment law in the months to come. We summarize below the recently decided and pending cases.

The Differences Between State and Federal Anti-Discrimination Laws.

President Bush recently signed into law the Genetic Information Nondiscrimination Act (“GINA”). The new law, when it takes effect at the end of 2009, makes it unlawful for employers to discriminate against employees based on genetic characteristics. Yet, California’s Fair Employment and Housing Act (“FEHA”) already prohibits discrimination on the basis of genetic information. In fact, the FEHA has traditionally provided broader protections against discrimination than federal law. This creates confusion for employers who do not understand the many distinctions between the federal and state statutes. While this article does not address all of those distinctions, below are some of the key differences.

A Kin Care Conundrum.

Many employers provide some form of paid sick leave to their employees. In fact, employers are required to do so for employees working in San Francisco. Don’t be jealous. The Legislature is considering a bill that would mandate paid sick leave statewide. See Assembly Bill 2716.

Two New California Employment Laws Now In Effect.

January 1, 2008, is the effective date of the Earned Income Tax Credit Information Act (the Act). This legislation evolved from a California Franchise Tax Board study showing that approximately 460,000 California families qualified, but did not file, for the federal earned income tax credit (EITC.) The EITC Act requires employers on an annual basis to notify their employees of their potential eligibility for the EITC.

New Laws for California Employers in 2008.

With the New Year comes new legislation. This year, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a significant number of bills that would have significantly impacted employers, and signed a few with which employers will need to comply come January. In addition to the legislation the Governor signed this year, a few laws from past years become effective in 2008. The key laws are summarized below.

Judge Strikes Down Controversial Supermarket Ordinance.

A Los Angeles County Superior Court judge issued a tentative ruling last month, voiding a Los Angeles city ordinance that required supermarkets, occupying more than 15,000 square feet and which changed ownership, to retain existing eligible workers for 90 days after the transfer of ownership.

The Breach of the Duty of Loyalty - What Employers Can Do About It.

A recent report called The Walker Loyalty Report for Loyalty in the Workplace, released in September 2007, noted more than 35% of employees are likely to leave an employer within the first two years of employment. Yet, employers’ investments in training, recruiting, and compensation continue to rise. Turnover is even more damaging when employees take clients, employees and trade secrets with them. Do employers have the legal right to expect their employees’ loyalty? And what can an employer do to protect itself from competitive conduct by employees during employment?

California Supreme Court Issues Two Big Decisions.

The California Supreme Court ended the summer with a bang by announcing two major decisions which could have far-reaching effects. Here is a brief overview of the implications of each case to California employers.

California Supreme Court Employment Law Decisions 2006-2007.

The California Supreme Court decided several significant employment law cases since our last summary in August 2006. The Court’s opinions address a number of topics, from employment at will to class actions. The Court also has accepted review of several decisions that could be blockbusters in the months to come. We summarize below the recently decided cases and those that remain pending.

California Alert - CA Supreme Court Issues Three Key Decisions.

California employers should be aware of three decisions in the last week that will impact the way they do business here.

Employment Lawsuits Against Individuals.

Plaintiffs in employment law cases frequently name individual employees as defendants. Sometimes, they sue co-workers. More frequently, they name supervisors or managers, and even high-level executives up to the CEO.

California Employment Law Protects Employees Unauthorized to Work.

As anyone paying attention to the news is aware, immigration is a politically charged and volatile issue. Employers as a result must sort through a morass of laws and regulations. There are specific laws and procedures applicable to the employment of non-citizens. It is illegal to employ and retain aliens who are unauthorized to work.
  • No Subtopics.