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Total Articles: 242

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: http://www.littler.com/wage-hour-counsel/california-court-appeal-issues-expansive-expense-reimbursement-ruling#sthash.PGeeYDVx.dpuf

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).

EMPLOYERS MUST PAY EMPLOYEE CELL PHONE EXPENSES

Employers get out your checkbooks. The California Court of Appeal has ruled that employers must reimburse employees for the reasonable cost of using their personal cell phones to make or receive business calls.

Court Approves Suing Ex-Employee for Extortion

It happens every day. A current or ex-employee threatens to "blow the whistle" on some perceived employer misconduct to leverage the employer into providing a beneficial change at work or a hefty severance package. If this happens, it turns out that, in certain cases, such threats constitute an illegal threat of extortion, says a recent California Court of Appeal decision. Here is what happened.

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.

Staffing Company Not Liable for Poisoning

Workplace disputes between employees cause headaches for employers who are often caught in the middle. In rare cases, disputes get out of hand and someone gets hurt. A recent California case will make most workplace disputes seem minor by comparison. In Montague v. AMN Healthcare, Inc., a staffing agency employee poisoned her co-worker after a disagreement. The court examined whether the employer may be held liable for this criminal act.

LOCAL JURISDICTIONS “BAN THE BOX”

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.

CALIFORNIA’S NEW LAWS PROTECT UNDOCUMENTED WORKERS

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.

A NEW OBLIGATION TO INVESTIGATE?

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....

Is California Next To Legalize Pot?

Colorado has joined Washington in legalizing “recreational” use of marijuana. Could California be the next state to legalize marijuana? If so, setting aside any political or social issues, what would this mean for employers? Changes could come as early as 2015. Three initiatives have already been introduced for possible inclusion on the November 2014 election ballot.

EDD Paid Family Leave May Integrate With Employer Leave Benefit Program

Today, many employers are faced with employees taking leave due to pregnancy, illness, or to care for family members. Employers may not be aware the Employment Development Department (EDD) has an integration/coordination program that allows an employee’s to coordinate state benefits with employer leave benefits.

“Suitable Seats” Litigation Landslide Continues

California labor regulations require employers to provide suitable seating to employees when practicable. Retail industries in California have recently been very hard hit by class action lawyers. Businesses should review all positions to determine whether seating ought to be provided to employees.

New Laws Effective in 2014

When it comes to employment legislation, 2013 was yet another big year of changes. The California Legislature continued its long-established trend of increasing employee protections and entitlements, while strengthening the enforcement powers of State regulators. The following is a summary of new employment laws taking effect on or after January 1, 2014.

A CHECKLIST FOR ENDING EMPLOYMENT

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.

California Amends Various Employee Leave Rights

In 2013 the California legislature expanded employee leave rights for many employees. Employers should review the amendments, determine applicability, and where necessary update their handbooks and train their supervisors to implement these modified rights.

Global Warming + CA Labor Law= New Lawsuits

This summer is going to sizzle – in the courts. California companies who send workers outdoors to work could face substantial new liabilities under a new California law, SB 435. The new law imposes penalties where employees are not provided with a “heat illness recovery period.” Before the temperatures rise, consider taking steps to avoid getting cooked in court.

LITIGATION AND EMPLOYEE MEDICAL PRIVACY

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.

NEW CALIFORNIA EMPLOYMENT LAWS FOR 2014 (PART 1)

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.

NEW CALIFORNIA EMPLOYMENT LAWS FOR 2014 (PART 2)

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

Commute in Company Vehicle Creates Legal Quandary

Company risk managers are rightly concerned about avoiding liability any time an employee drives on the job, or commutes in a company vehicle. Although a few recent California cases have blurred the line for employers, the court in alliburton Energy Services, Inc. v. Department of Transportation gave one California employer a break.

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.

2014 New California Employment Laws Final List

Governor Brown has signed eleven new employment bills into law that will become effective in 2014.

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.

California Reduces Section 409A State Income Tax Penalty

On October 4, 2013, California signed into law an amendment to the California Revenue and Taxation Code that reduces from 20% to 5% the additional state income tax penalty imposed on non-compliant deferred compensation arrangements governed by Section 409A of the Internal Revenue Code of 1986, as amended and the regulations thereunder (collectively, "Section 409A"), with such reduction effective for taxable years beginning on or after January 1, 2013 (the "California Amendment").

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.

MORE “DOMESTIC WORKERS” ENTITLED TO OVERTIME AND OTHER RIGHTS

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.”

Governor Signs Labor Laws, With More To Come

So far this year, California’s Governor Brown has signed into law four labor laws of significance. Another seven are currently on his desk awaiting signature or veto by the October 13th deadline. Below is an overview of the new and pending laws.

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.

End of Summer Brings Wave of New Laws Affecting California Employers

End of Summer Brings Wave of New Laws Affecting California Employers

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.

California Bill Raises Barrier To Employer Attorney Fees

Did you know that there is a Labor Code provision that actually allows employers to recover attorney fees if they win a wage lawsuit? Don’t get too excited, because it is going away soon.

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.

ASSISTIVE ANIMALS IN THE WORKPLACE

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.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2012-2013, PART I

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 Employers Walloped By State Labor Agency

It turns out that your Human Resources Director’s anxiety over possible labor agency audits is not mere paranoia; the government really is out to get you. The California labor agency, the Division of Labor Standards Enforcement (DLSE) released a report last month revealing that it dramatically increased enforcement actions and assessments in 2012. The trend will likely continue.

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.

Maritime Operator’s Fishy Conduct Deemed Unlawful Retaliation

What happens when an employer leaks the terms of a “confidential” settlement agreement and sets into motion a series of crude, rude, and offensive conduct that ends with one employee quitting? As you might expect, it can lead to a lawsuit. But not all of the bad behavior leads to actionable claims. In McCoy v. Pacific Maritime Association, et al., the court explained how that series of crude, rude, and offensive behavior was not enough to hold the employer liable for sexual harassment or intentional infliction of emotional distress, but it was enough to impose liability for retaliation.

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.

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?

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.

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.

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.

CA ENACTS NEW EMPLOYMENT LAWS

The California State Legislature has enacted a series of new employment-related laws that will affect a wide range of areas, including wage-and-hour compliance and California's anti-discrimination laws. Except as noted below, these new laws go into effect on January 1, 2013.

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 LAWS FOR CALIFORNIA EMPLOYERS - PART 1

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.

NEW LAWS FOR CALIFORNIA EMPLOYERS - PART 2

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.

GOVERNOR SIGNS BILL OUTLAWING MOST EMPLOYER REQUESTS FOR SOCIAL MEDIA ACCOUNT INFORMATION

Governor Brown has signed a new law prohibiting employers from requiring or even requesting user names and passwords for social networking sites from employees or job applicants. The new law goes into effect on January 1, 2013.

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.

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.

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.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012 - PART 2

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.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012

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.

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.

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.

UPDATING EMPLOYEE HANDBOOKS FOR 2012

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.

New California Employment Laws in 2012

On October 9th, Governor Brown signed AB 22 into law. Effective January 1, 2012, the new law prohibits the use of a consumer credit report for employment purposes, with certain exceptions listed 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:

NEW LAWS FOR CALIFORNIA EMPLOYERS

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: http://leginfo.legislature.ca.gov/faces/homeTemplate.xhtml.

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.

New California Employment Laws Signed by Governor Jerry Brown

On October 9, 2011, California Governor Jerry Brown signed into law a series of bills impacting the landscape of California employment law. Employers will want to take note of these new laws, which may require revision of existing employment policies and practices. Except where indicated, the new laws are effective January 1, 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:

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. Unlike vacation, unused sabbaticals are not cashed out upon termination of employment. 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.

SABBATICAL PROGRAMS UNDER ATTACK IN CALIFORNIA

A recent California Court of Appeal ruling involving sabbatical programs typifies what is meant by the old adage "no good deed goes unpunished."

GOVERNOR BROWN SIGNS BILL ENHANCING STATE'S PAID ORGAN AND BONE MARROW DONATION LEAVE LAW

Senate Bill No. 272 amends Labor Code Section 1510, clarifying and enhancing California's law mandating paid leaves of absence for employees participating in organ or bone marrow donation. The law provides that employers with 15 or more employees are required to grant as much as 30 days of paid leave, within a one year period, for employees serving as organ donors, and up to 5 days of paid leave within a one year period for employees donating bone marrow.

EFFECTIVE DISCIPLINE: SURVIVING LABOR BOARD SCRUTINY

When disciplining employees, employers must communicate to employees the effects of their misconduct, rather than simply cite the workplace rule that was violated, according to a recent ruling from the National Labor Relations Board. Employers who ignore this directive risk having disciplinary action overturned if the rule which the discipline is based upon is successfully challenged by an employee or a union.

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.

CALIFORNIA SUPREME COURT’S EMPLOYMENT LAW DECISIONS: 2010-2011

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.

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.

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.

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.

EFFECTIVE JANUARY 1, 2011: NEW PAID ORGAN AND BONE MARROW DONATION LEAVE LAW

Effective January 1, 2011, employers with 15 or more employees are required to grant as much as 30 days of paid leave, within a one year period, for employees serving as organ donors, and up to 5 days of paid leave for employees donating bone marrow. These new provisions were added to the California Labor Code and are intended to encourage participation in organ and bone marrow donation programs by easing the financial burden on employees when missing work to undergo transplant procedures.

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.

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.

NEW IRS MILEAGE REIMBURSEMENT RATE

The IRS just announced an increase in the standard mileage rates, effective January 1, 2011. The new rate will be 51 cents per mile for all business miles driven. This increase is important because California employers have a legal duty to reimburse employees for all necessary expenses incurred in performing their jobs. This includes reimbursing employees who drive their own vehicles for business purposes.

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.

Labor & Employment Law Legislation: New California And Federal Laws Enacted In 2010.

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.

Significant 2010 California and Federal Labor & Employment Law Cases.

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 2010 California Supreme Court case Reid v. Google.

2010 Labor & Employment Regulatory And Agency Update.

California's Division of Workers' Compensation issued new regulations in the fall of this year. The new regulations require all employers to post a notice of certain workers’ compensation rights. As a result of recent amendments to the Division’s regulations, a the poster has been revised and all employers are required to post the updated version.

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."

NEW GOVERNOR, NEW EMPLOYMENT LAWS COMING

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.

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.

PROPOSITION 19 UPDATE: OBAMA ADMINISTRATION PROMISES VIGOROUS ENFORCEMENT OF FEDERAL DRUG LAWS IF BALLOT MEASURE PASSES

When Californians go to the polls on November 2nd, one of the measures on the ballot will be Proposition 19. Officially known as "The Regulate, Control and Tax Cannabis Act of 2010",the ballot measure seeks to legalize the recreational use of marijuana in a private residence (or other non-public place) by anyone over the age of 21. If passed, the initiative will create a host of very serious problems for California employers.

NEW LAWS FOR CALIFORNIA EMPLOYERS.

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.

PROPOSITION 19 PRESENTS MANY CHALLENGES FOR EMPLOYERS

When Californian's go to the polls on November 2nd, one of the measures on the ballot will be Proposition 19. Officially known as "The Regulate, Control and Tax Cannabis Act of 2010", the ballot measure seeks to legalize the recreational use of marijuana in a private residence (or other non-public place) by anyone over the age of 21. If passed, the initiative will create a host of very serious problems for California employers.

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. Below is a summary of the dead bills.

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 SUPREME COURT EMPLOYMENT LAW DECISIONS 2009-2010.

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.

California Legislature Seeks New Employer Restrictions; Cal Supreme Court Defines “Employer”.

In addition to AB 482, described in the previous article, regarding restrictions on the use of credit checks, a few other bills hostile to employers are pending in Sacramento.

California and Federal Law Regarding Teenage Employment During The Summer.

Summer is here (almost) and many teenagers will be hitting the workforce to earn a few extra dollars. Companies who hire teenagers should be aware that state and federal law restricts the use of minors or “child labor.”

SLAPPING THE BOSS.

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.

DRIVING FOR DOLLARS.

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.

Survey Illustrates Cost of Defense and Liability In Employment Discrimination Claims.

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.

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.

California Earned Income Tax Credit Notice Must Be Delivered This Month.

The California legislature has added yet another notice that must be given to employees. 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).

EMPLOYMENT LAW ON THE MENU.

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.

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. Below is a summary of the new laws of major significance.

2009 Government Agency Employment Law Opinions and Regulations.

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.

2009 California Supreme Court Labor & Employment Law Cases.

In a case involving secret videotaping, the California Supreme Court ruled that although employees may sometimes have a reasonable expectation of privacy in the workplace, an employer may sometimes intrude upon that privacy for legitimate business reasons.

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.

GOVERNOR SIGNS CALCHAMBER-SUPPORTED BILL PROTECTING BUSINESSES FROM MERITLESS LAWSUITS.

A California Chamber of Commerce-supported bill that protects businesses from meritless lawsuits was signed by Governor Arnold Schwarzenegger last week.

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. Below is a summary of the more significant ones.

USE OF CONTRACTORS CARRIES HIDDEN RISK.

If you hire a contractor to perform construction, farm labor, garment, janitorial, or security services, there is a huge financial risk you need to know about. Under a little known provision in the California Labor Code, your company could be held liable to the contractor's employees in the event the contractor skirts its labor law obligations.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS: 2008-2009 TERM.

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.

PUBLIC ENTITIES ARE EXEMPT FROM CERTAIN PROVISIONS OF CALIFORNIA’S LABOR CODE.

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.

California’s Discrimination Claim Rate Outpaces National Average.

California's Department of Fair Employment and Housing (DFEH) published an annual report in May, and the statistics reveal a much higher rate of some types of employee discrimination claims than is seen on the national level.

Taking Stimulus Money Requires Following Rules (pdf).

The American Recovery and Reinvestment Act of 2009 (ARRA) is infusing billions of dollars into the private sector. To ensure that the monies are actually used for their intended purpose, Congress added a powerful whistleblower provision into the law.

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.

INVESTIGATIONS OF GOVERNMENT EMPLOYEES RULED CONSTITUTIONAL.

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.

CHINDARAH V. PICK UP STIX, INC.: A BONA FIDE VICTORY FOR EMPLOYERS.

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.

New California Laws In Effect For 2009.

Effective July 1, 2008, Senate Bill 1613 provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. A violation of this law will be punishable by a fine of $20 for a first offense and $50 for each subsequent offense.

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.

GOLDEN STATE OF MIND.

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.

RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES.

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.

EDD Offers Alternative To Layoffs For California Employers.

Some companies are facing tough choices during the current economic downturn. Layoffs may allow the company to survive. But when the economy rebounds, those laid off workers may not be available for rehire. Hiring and training a new workforce is time consuming and expensive.

NEW LAWS AND OTHER DEVELOPMENTS FOR CALIFORNIA EMPLOYERS.

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.

Workplace Policies Update: California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies.

California has banned text messaging while driving, and employers need to respond promptly by updating policies.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008.

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.

New Director Aims To Reinvigorate Department of Fair Employment and Housing.

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.

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.

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.

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.
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