Maybe I should have titled this:  How I Learned to Stop Worrying and Love My Exorbitant Expert Fees.

Because as much as employers like to complain about the cost of employment litigation, including the often substantial expert fees, those very same expert fees might just be the ticket to discouraging future employment lawsuits. 

Or at least that’s one way to interpret the California appellate court’s opinion in Holman v. Altana Pharma Us, Inc., (June 30, 2010, Cal. App. Ct.). 

But to understand how this works, it helps to take a step back for a minute and look at how California’s legislature and courts have altered the fee-shifting landscape in two potentially-conflicting ways.

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Pausing on our trip down memory lane, we take a quick peek around the corner at what the California Supreme Court will be soon be waxing so eloquently about.  Here are this reporter’s favorites:

Shorten Those Pesky Statutes Of Limitations?:  Why can’t employers simply impose an Armendariz-compliant arbitration requirement on their employees as a condition of employment, and (while they are at it) include a provision whereby the parties “agree” that the statute of limitations will be shortened to something less than that permitted by FEHA?  Seems reasonable (if you are an employer), doesn’t it?  The Supreme Court will help us with this when it rules in Pearson Dental Supplies, Inc. v. Superior Court (No. S167169.)  The matter is fully briefed.  (Check here for latest court update or to request automatic email notifications about the case.)

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As promised, we continue our trip down memory lane by looking at some of the more significant California Supreme Court employment decisions in 2009.  Don’t bother putting on your shoes, it’s a really short trip.  In fact, in this reporter’s humble opinion, the 2010 journey will be much more interesting as there are a number of novel issues fully briefed just waiting for that splash of Supreme Court brilliance.  For now, we look at employer spying, supervisor harassment, punitive damages, and the infamous 17200 unfair competition law.

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Now what has the California Supreme Court done to employment law here in the Golden State?

In Roby v. McKesson (S149752), the latest masterpiece from the state’s top court, it looks as if both employees and employers can claim a modicum of victory. 

The employees will find it easier to assert and prove harassment claims against individual supervisors, which will make it easier to (a) defeat removal to federal court based on diversity jurisdiction; and (b) defeat summary judgment of harassment claims by individual supervisor defendants.

For the employers?  The Court may be signaling further disenchantment with high punitive damages, particularly in cases involving high non-economic (emotional distress) damages where there is little evidence that upper management knew about the bad conduct.

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We’ve had it backwards all these years!

For decades, employers have been trying to insert arbitration clauses in their employment contracts.  Why?  Because they are afraid of the unpredictability of juries.  Especially those whacky California ones.

And during this same time period, employees (actually their attorneys) have been trying to avoid those arbitration clauses.  Why?  Because they like the unpredictability of juries.  Especially those whacky California ones.

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Just how "unique" is California employment law?

We asked our panel of experts to come up with their TOP 10 list of uniquely California employment laws, rules, and regulations.  Here were the first ten to pop to mind:

1) VACATION PAY– Unlike virtually every other state, California does not allow employers to have “use it or lose it” vacation policies.  Instead, California requires employers to either cash out their employees’ accrued vacation at the end of the year or allow them to carry it over up to a “reasonable cap” on accrual.

^{[thanks to Alan Light for the photo
of the Top 10 King!]}

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Wrongful termination, sexual harassment, discrimination and virtually every other employment-related claim begins with a turf war, a fight over which court will hear the case.  Employee plaintiffs prefer California state courts due to the generous scheduling and unfussy adherence to the rules.  Out-of-state employer defendants want to remove to federal court on diversity grounds and pressure plaintiffs with tight deadlines and judges bent on strict compliance. 

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