Articles Discussing The Practice Of Employment Law In California.

Technology is rapidly changing the manner in which businesses operate. This is equally true for professionals, who must incorporate and adapt to technological advances in order to thrive in a competitive marketplace. However, keeping up to date with technology is not merely a matter of protecting the bottom line. Professionals who fail to stay on the cutting edge could violate ethics rules and jeopardize their client’s interests.

Section 2810 of the California Labor Code prohibits businesses from entering into contracts for certain services, such as security and janitorial services, where the contracting party “knows or should know” the contract does not include enough funds to allow the contractor to comply with applicable labor laws. But mere boilerplate allegations are not enough, the California Court of Appeal has ruled. It dismissed a putative class action against several airlines for alleged unpaid wages, overtime and uniform reimbursement due to employees of a defunct security services firm because employee’s complaint for violations of the statute failed to allege facts sufficient to state a claim. Hawkins v. TACA Int’l Airlines, S.A., et al., No. B242769 (Cal. Ct. App. Jan. 27, 2014).

California’s Rules of Professional Conduct generally prohibit an attorney, directly or indirectly, from communicating with a represented party, including the party’s employees. However, this rule did not apply to prohibit communications between two qui tam plaintiffs and the defendant-employer’s current employees, the California Court of Appeal has held in a case under the California False Claims Act (FCA). San Francisco United Sch. Dist. ex. rel. Contreras v. First Student, Inc., No. A134405 (Cal. Ct. App. Feb. 19, 2013). Vacating the injunction granted by the trial court, the Court also ruled that the injunction violated the state law’s prohibition against employer interference with employee communications and raised First Amendment concerns.

A trial court erred in not instructing the jury that the employer’s possible error in business judgment is not tantamount to a discriminatory motive in a female job applicant’s pregnancy discrimination case under the California Fair Employment and Housing Act (“FEHA”), the California Court of Appeal has ruled. Veronese v. Lucasfilm Ltd., Nos. A129535 & A131660 (Cal. Ct. App. Dec. 10, 2012). The Court also held that the trial court’s decision to instruct the jury regarding the potential harm to the female job applicant’s unborn child was erroneous. Accordingly, the Court reversed a jury verdict of $113,830 and an attorney’s fee award of approximately $1.1 million in favor of the applicant, returned the case to the trial court and ordered a new trial.

Recordings of witness interviews conducted by investigators employed by counsel and the identity of witnesses from whom counsel obtained statements are subject to at least a qualified work product protection, the California Supreme Court has ruled. Coito v. Superior Court, No. S181712 (Cal. Jun. 25, 2012). In addition, the Court held such statements and information could be subject to absolute privilege if disclosure would reveal an attorney’s tactics, impressions, or evaluation of the case. The Court reversed an order compelling discovery and returned the case to the trial court.

California Labor Code section 2802 generally requires employers to indemnify their employees for losses the employee incurs within the scope of employment. As one common example, section 2802 requires an employer to indemnify an employee for attorneys’ fees if the employee is sued by a third party, such as a customer, concerning conduct that falls within the scope of employment. But what about legal fees incurred by an employee in defending against a lawsuit by the employer itself, such as for unfair competition or misappropriation of trade secrets?