California
In a unanimous decision, the California Supreme Court holds that the state's "kin care" law does not apply to sick leave policies providing an indefinite number of paid sick days.
California litigants are now required to meet and confer regarding the discovery of electronically stored information before the initial Case Management Conference.
California's appellate court rejects overly broad customer noncompete and nonsolicitation clauses
In its recent decision in Roby v. McKesson, the California Supreme Court issued two principal holdings: (1) the court concluded that a supervisor's "business and management" actions may be properly considered in determining whether a plaintiff was subject to a hostile work environment; and (2) the court affirmed the right of an appellate court to review and determine the constitutional maximum amount of a punitive damages award (rather than remanding to the trial court for further determination) and, in fact, engaged in its own analysis to further reduce the punitive damage amount recalculated by the court of appeal.
The California Supreme Court has held that communications between an outside counsel and his/her corporate client, providing advice regarding whether certain management positions are exempt from overtime, are privileged even if: the outside counsel gathers facts in the process of rendering advice; summaries of those facts are included in written communications prepared by the outside counsel; and those facts are otherwise discoverable in litigation.
The California Supreme Court finds valid a forfeiture provision in a restricted stock plan, even though the plan is funded from employees' wages.
Federal district court in California holds that time spent interviewing by staffing agency employees for temporary customer work assignments is compensable under California Law. However, time spent preparing for and commuting to the client interviews is not compensable.
Following a summer of battles over the state budget, very few bills affecting private employers in California made it successfully out of the legislative process. The bills that were passed include, a new unpaid leave for Civil Air Patrol members, adjusted tax withholding requirements, laws affecting the alternative workweek arrangement and new industry specific laws regarding licensing and contracting requirements.
California increases payroll tax withholding November 1, 2009, and introduces back-up withholding requirements effective January 1, 2010. This means more work for payroll and accounts payable departments and for employees payrolled in California - potentially smaller net paychecks.
California's Fourth District Court of Appeal in The Retirement Group, Inc. v. Galante issues new opinion spotlighting the pitfalls and hazards of trade secret litigation.
An important new opinion letter from the California Division of Labor Standards Enforcement (DLSE) withdraws a 2002 opinion letter precluding partial week furloughs of exempt employees, and in the process conforms California law on furloughing exempt employees to federal law.
In a recent opinion, Hernandez v. Hillsides, Inc., the California Supreme Court held that an employer acted lawfully when it surreptitiously installed a video camera in a shared office even though both employees had a reasonable expectation of privacy there. While binding only in California, the court’s decision is instructive for employers throughout the United States because the court’s analysis is based upon legal principles applicable to invasion-of-privacy claims in virtually every jurisdiction.
The California Supreme Court has held that an "aggrieved" employee can bring a representative action on behalf of other employees for civil penalties under the California Private Attorneys General Act (PAGA) without first having the action certified as a class. Nevertheless, because the court has not defined what is meant by a "representative action," many questions about PAGA actions are left unanswered.
New California OSHA regulations impose significant obligations on healthcare employers and on certain other types of employers whose employees are exposed to aerosol transmissible diseases. The new regulations are effective August 5, 2009.
On June 30, 2009 California became the 22nd state to enact separate rules that specifically address electronic discovery. The new California Electronic Discovery Act is effective immediately. It makes comprehensive changes to California's discovery rules and is designed to modernize California's discovery laws to reflect the growing importance of discovery of electronically stored information in today's digital world where paper is the exception and most information is stored electronically. While similar rules have been in effect in the federal courts since December 2006, as a result of the California EDA, California employers now need to be prepared to face the challenges associated with e-discovery when litigating in California state courts as well, taking into account unique twists that the California EDA places on the treatment of inaccessible data as well as mandatory cost-shifting for producing data from back-up media.
The California Court of Appeal in Etheridge v. Reins International California, Inc. has held that mandatory tip-pooling policies that allow tips to be shared with staff who do not provide direct table service are enforceable. California restaurant employers and other employers that allow tips would be well advised to review, and if necessary, amend mandatory tip-pooling policies.
On March 10, 2009, the California Court of Appeal in Franco v. Athens Disposal Company, addressed the enforceability of a class action and "private attorney general" waiver clause in a written arbitration agreement signed by the plaintiff. The plaintiff filed his complaint as a potential class action under the California Private Attorneys General Act, alleging, among other claims, denied meal and rest breaks in violation of the California Labor Code. The court of appeal refused to enforce the arbitration agreement and remanded the case to the trial court for further proceedings.
In a case of first impression regarding the application of California's Private Attorneys General Act (PAGA) to class action settlements, a California Court of Appeal in Deleon v. Verizon Wireless holds that a settlement agreement of a non-PAGA class action waiving "all claims" bars a subsequent PAGA action on behalf of the same class, even if the state never approved the settlement.
On January 1, 2009, a new law went into effect requiring the issuance of weekly paychecks for most workers on temporary assignment with a client or customer. Although intended to apply only to the temporary services industry, as enacted, the law extends outside traditional notions of that industry.
In Speilbauer v. County of Santa Clara, the California Supreme Court held that public employers may threaten job discipline in order to compel employees to answer questions about job performance so long as the employees are not required to choose between dismissal or waiving their Fifth Amendment protection against self-incrimination.
In Starbucks v. Superior Court, a California Court of Appeal dismisses a class action lawsuit seeking millions of dollars against Starbucks for allegedly violating California's restriction on asking job applicants about prior marijuana-related convictions.
Governor Schwarzenegger continued his pattern of vetoing much of the employment-related legislation put on his desk by the Democratically controlled legislature. Employers in California should review their policies and procedures to ensure compliance with the bills that were successfully enacted.
San Francisco has enacted a commuter benefits ordinance requiring all non-governmental employers with 20 or more employees, no matter where located, to provide its San Francisco employees with one of three options in subsidized commuting benefits. The ordinance, which requires compliance by January 19, 2009, is intended to encourage employees to use public transit to reduce air pollution and carbon dioxide emissions.
The Ninth Circuit Court of Appeals holds that California's overtime laws may have extraterritorial application to nonresidents working temporarily within the state. However, the court limits the reach of California's unfair competition law outside of the state.
The California Supreme Court has held in McDonald v. Antelope Valley Community College District, that the statute of limitations for an employee's discrimination claim could be equitably tolled, or extended while the subject employee voluntarily pursued her employer's internal administrative remedy. The court reasoned that because the employer had notice of the claims alleged, it could gather and preserve evidence, and the public policy behind the statute of limitations was satisfied.
The California Supreme Court has granted review in Brinker Restaurants v. Superior Court. California employers now await a definitive answer to the question: Are employers responsible for ensuring that employees take their required meal breaks or is it sufficient for employers to provide the opportunity for breaks?
In a last-minute legislative move, California relaxes the overtime exemption for computer professionals.
The Ninth Circuit Court of Appeals has upheld the employer spending requirement of San Francisco's health care security ordinance , reversing an earlier lower court ruling that the ordinance was preempted by ERISA.
The California Supreme Court's opinion in Edwards v. Arthur Anderson L.L.P., reinforces California's public policy against enforcing covenants not to compete but at the same time found that broad releases of "any and all claims" in agreements are valid and do not include unwaivable claims.
A California Court of Appeal has issued its decision in Brinker Restaurants v. Superior Court, holding that employers only have to provide employees with an opportunity to take a meal period, and not ensure they take it. The court also ruled favorably for employers on meal and rest period timing and denied class certification based on its determinations of what the meal and rest period law requires.
In Kenny v. Supercuts, Inc., a third U.S. District Court in California rules that employers need not "ensure" that employees take state-mandated meal periods, so long as meal periods are made available for employees. This case is the latest battleground over one of the most significant unsettled issues in California wage and hour law - whether employers must "provide" or "ensure" that their employees take meal periods.
A California Court of Appeal holds that the state's "kin care" law applies to sick leave policies providing an indefinite number of paid sick days, and also holds that employers may apply attendance disciplinary rules to the use of kin care to the same extent as applied to the use of paid sick days.
The California Supreme Court holds that the state's Constitution guarantees the right to marry to same-sex couples as well as to couples of the opposite sex.
In a case of first impression, a California Court of Appeal finds that the definition of employer or deemed employer under the California Labor Code and Business and Professions Code does not include individual supervisors, managers or owners unless the statute specifically imposes individual liability.
A California employer may still argue that an employee is unqualified for CFRA leave, even if it does not seek a tie-breaking third medical opinion. Nevertheless, employers are advised to make informed decisions about whether employees are entitled to CFRA medical leave.
The California Supreme Court rules that individual nonemployers are not liable for retaliation, but leaves open the issue of individual liability for retaliation that is in response to a complaint of harassment.
California Supreme Court holds that employers no longer face the Hobson's choice of hiring an applicant who is using "medical marijuana" or refusing to hire that applicant and risking an expensive lawsuit.
For San Francisco employers, another new ordinance imposes challenging health care requirements. The San Francisco Health Care Security Ordinance (HCSO) mandates spending requirements for employee health care. The ordinance is effective January 1, 2008 for employers with 50 or more employees and April 1, 2008 for employers with 20-49 employees.
Effective January 1, 2008, all employers covered under the California Unemployment Insurance Code are required to provide all employees with a special notice of their possible eligibility to take advantage of the federal Earned Income Tax Credits (EITC or EIC). There are logistical issues that employers need to consider when complying with the new laws requirement that the notice be either hand-delivered or mailed within one week of the date of sending to employees the annual wage summary (IRS Form W-2).
California Supreme Court holds that employers may reimburse employees for business-related expenses by paying increased commissions or base salaries; so long as employers apportion between compensation for work performed and reimbursement for business-related expenses.
California employers grapple with wage and hour issues arising from the closure of businesses and the displacement of employees due to the Southern California wildfires.
The net result for private sector employers of the California government's 2007 policymaking was more significant for bills that were not signed by the Governor, than those that were.
California's Governor Schwarzenegger signs new family military leave law providing family leave for spouses of military members who return on leave from deployment in a combat zone.
By a narrow majority and over vigorous dissent, the California Supreme Court broke new ground regarding the validity of class action waiver clauses in employment arbitration agreements. While upholding the validity of such clauses, the court created a new standard that may create formidable obstacles to enforcement as applied to overtime class action claims.
In Prachasaisoradej v. Ralphs Grocery Company, No. S128576 (Cal. Aug. 23, 2007), the California Supreme Court ruled that employers may lawfully use net-profit based incentive plans to provide supplemental income to employees. The court leaves in place earlier decisions that found some deductions of expenses from incentive income to be unlawful, leaving unanswered questions about how widely it will apply the principles it announced.
The California Supreme Court holds that a disabled employee bears the burden of proving under the California Fair Employment & Housing Act that he or she is a "qualified individual" capable of performing "essential" job functions with or without "reasonable accommodation."
A recent Ninth Circuit case illustrates the potential benefits of certain types of employment agreements to deter competitors from raiding employees. Consider our tips for maximizing your retention of employees.
San Francisco enacts the first law mandating paid sick leave for employees. Employers must adopt or adjust paid leave policies, and face several uncertainties.
California's Fair Employment and Housing Commission signs off on its sexual harassment training regulations.
Other than the increase in the minimum wage, there were few significant changes in California’s workplace laws as a result of the Legislature’s 2006 session.
California joins ten other states that, so far this election year, have acted to increase their minimum wage — and there may be more states doing so before the year ends.
Cal-OSHA releases final regulations designed to prevent heat illness of employees working outdoors. The regulations require that employers provide sufficient drinking water, access to shade and training.
California Supreme Court holds that, even in a case filed before Proposition 64 took effect, the plaintiff can only sue under California's Unfair Competition Law (the "UCL") if he or she suffered some actual harm from the defendant's actions.
The California Supreme Court holds that undisclosed recording of telephone calls with California residents violates California law, even if the recording is made outside of California and is lawful where made.
The California Supreme Court holds that the end of a short-term assignment is a "discharge" requiring the immediate payment of final wages.
In Gelfo v. Lockheed Martin Corporation, No. B178676 (June 2, 2006), the California Court of Appeal for the Second District held for the first time that California employers must engage in the "interactive process" with, and potentially reasonably accommodate, workers who are "regarded as" disabled. The case underscores the importance of making informed decisions based upon a worker's inability to safely perform "essential job functions."
A new California Court of Appeal decision invalidates a wage order's collective bargaining exemption from meal period requirements, raising questions about the validity of other exceptions in California's wage orders.
In a closely watched case involving the line to be drawn between creative freedom and harassment, the California Supreme Court unanimously holds that vulgar and sexual language by itself does not constitute sexual harassment under California law.
The California Supreme Court will consider two significant wage and hour issues: the statute of limitations that applies to meal and rest period violations, and how employers reimburse employees for work-related expenses.
The first published case interpreting "mass layoff" under California WARN held that where employees are transferred as the result of a sale and keep the same positions and compensation, California WARN notice is unnecessary.
Class Claims Dismissed by Court of Appeals for Failing to Comply with California's Private Attorneys General Act Notice Requirements.
California Governor Arnold Schwarzenegger signs only a handful of bills impacting employers in California.
Corporate officers and directors are not personally liable for non-payment of wages. However, individual liability is still a possibility under a number of other codes provisions not at issue in this case.
Employees in California need not explicitly say they are opposing discrimination in order to claim retaliation, and can show opposition simply by refusing to comply with an employer's directives. This decision will make it correspondingly more difficult for employers to get retaliation cases dismissed prior to trial.
The Court held unequivocally that a predispute contractual waiver of the right to a jury trial is not enforceable in a civil action in California, creating additional difficulties for California employers trying to avoid litigating matters in front of a
California Labor Code section 96(k) prohibits employers from taking adverse actions against employees for engaging in lawful off-duty conduct. However, employers must take steps from preventing romantic relationships from resulting in "sexual favoritism" at work.
California domestic partnership law has expanded, and the conflicting obligations some employers may encounter in the areas regulated by both the state and federal family leave laws.
The Unveiling of California's new Megan's Law website leads to some precautions employers should take when making employment decisions.
Employers will have the opportunity to regain full control over medical treatment by selecting the treating doctors who will provide treatment to their industrially injured workers.
Following years of runaway, pro-employee bills, Schwarzenegger both passed and vetoed a slew of new legislation, with the intention of restoring balance. Littler reviews his handiwork and previews upcoming controversial ballot propositions.
The Court recently held that the Sav-on trial court did not abuse its discretion in certifyig a class action brought by managers and assistant managers of the drug retailer. The decision is likely to promote a new and devestating wave of wage and hour class action litigation.
SB 899 reformed the workers' compensation system in order to roll back runaway costs to employers and carriers. Littler summarizes the most significant changes instituted by this bill.
While the federal government does not recognize same-sex marriages, recent state-level legislation has left employers guessing as to their legal oblications. Littler sorts through the mountain of new legislation to present a clear picture of this rocky legal landscape.