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WELCOME TO THE ALSTON plus BIRD LABOR AND EMPLOYMENT BLOG

Thu, 10 Jun 2010 13:21:00 GMT

Welcome to the Alston & Bird Labor and Employment Blog.

CHAVEZ SIGNALS THE END OF MERITLESS EMPLOYMENT LAWSUITS IN CALIFORNIA – OK, Not Really, But It May Be A Step In The Right Direction

Mon, 18 Jan 2010 18:48:53 GMT

There are people out there who believe the rules are stacked in favor of employees when it comes to employment lawsuits here in the Generally Sunny State. Why? Look no further than the rules on the recovery of attorney’s fees.

Despite a very neutral sounding statute that allows for “the prevailing party” in FEHA cases to recover his, her, or its attorney’s fees from the non-prevailing party, the reality is (as interpreted by our Courts of Infinite Wisdom) that prevailing employees “ordinarily” recover their fees, whereas prevailing employers are only entitled to their fees if they can show the plaintiff’s case was frivolous or brought in bad faith.

In other words, prevailing employees get damages and their attorney’s fees; prevailing employers get ... nothing.

This has had quite an impact on how employment cases, especially small ones, are filed and litigated in the state. The value of a $10,000 case becomes $10,000 plus attorney’s fees. How much in attorney’s fees? Well, that depends, does it not, on how much work the employee’s attorney puts into the case? Do you see the incentives here? If the attorney works the case up more and more and more, then the employee can recover more and more and more...even if the actual damages to the employee are pretty small.

Could you turn an $11,500 employee verdict into an attorney’s fee application for $870,000?

The employee in Chavez v. City of Los Angeles thought so. In fact, so did the appellate court, which ordered the trial court to grant the plaintiff’s fee application, thereby obligating the employer to pay over $1 million (if you count its own attorney’s fees) to cover an $11,500 verdict for the employee.

In its infinite wisdom, the Supremes reversed. (Here is the Supreme Court's decision.) And in the process, the Court may have swung the Giant Employment Law Pendulum (the GELP for short) just a wee bit back in the employer’s direction.

Here’s what happened....

HOW MUCH IS TOO MUCH? NEW CALIFORNIA CASE SUPPORTS EMPLOYERS' SUMMARY JUDGMENT CHANCES IN HOSTILE WORK ENVIRONMENT CASES

Thu, 07 Jan 2010 00:08:22 GMT

Good news for California employers in sexual harassment cases arrived recently in the 4th District Court of Appeal's opinion in Haberman v. Cengage Learning, Inc., 2009 DJDAR 17689 (12/18/09). In Haberman, the court held that a plaintiff who alleges upwards of 10-20 "incidents" of so-called sexual harassment comprised of comments like, "You look really hot today" or "My customer says he really wants to date you" or asking plaintiff if she has any friends "who just want to have sex" - failed to establish a hostile environment sexual harassment claim and summary judgment was proper.

In Haberman, the plaintiff alleged sexual harassment against two individuals, based on six incidents against one and 13 against the other. As to the first individual, the court held that most of the incidents alleged against him were not sexual in nature and the few that were were not sufficiently severe or pervasive to constitute sexual harassment. As to the other individual, the court determined two of the 13 alleged incidents were not sexual in nature and the remaining 11 incidents, while possibly vulgar, were brief and isolated and insufficient to constitute a hostile environment.

Haberman is important for defendants/employers....

2009 EMPLOYMENT LAW IN REVIEW: DID WE ACCOMPLISH ANYTHING THIS YEAR?

Tue, 05 Jan 2010 12:30:50 GMT

Part 5 (The Final Entry): The California Courts In Action

This is where the action has been in 2009 employment law -- in the appellate courts. From commuting to class actions, tip pools to trade secrets, California’s courts were busy. In this, our final installment of the year in review, we look at just a few employment decisions we found particularly interesting.

On The Subject Of Commuting…:

A few commuting technicalities were cleared up for employees and employers in 2009, including a clarification of exactly what constitutes the commute. (And all this time I thought it was all that sitting in traffic I do twice a day, along with tens of thousands of my closest smog-spewing friends.)

2009 EMPLOYMENT LAW IN REVIEW: DID WE ACCOMPLISH ANYTHING THIS YEAR?

Thu, 24 Dec 2009 18:19:28 GMT

Part 4: The Legislative And Executive Bodies

As we continue our journey through some of the more noteworthy employment developments in 2009, we note that Congress and the California legislature each had its hands in the works, as did the Executive branch who, judging by the 750 pages of regulations it propounded in interpreting the FMLA, clearly needs more to do. While there were scores of new laws and regulations touching upon the minutiae of our daily worklife existence, a few stand out.

2009 EMPLOYMENT LAW SUMMARY: DID WE ACCOMPLISH ANYTHING THIS YEAR?

Fri, 18 Dec 2009 11:50:45 GMT

Part 3: The California Supremes Circa 2010

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.)

RETURN OF THE TEXT POLICE? QUON TO BE HEARD BY THE U.S. SUPREME COURT; AT STAKE, EMPLOYER MONITORING OF EMPLOYEE TEXTS AND EMAILS

Mon, 14 Dec 2009 20:48:31 GMT

NOTE FROM THE EDITOR: We reported on the Quon v. Arch Wireless case many moons ago (see here for our summary). In that opinion, the Ninth Circuit held that -- in the case before it -- the employee police officers had a reasonable expectation of privacy in the text messages they sent and received on their employer-provided PDAs.

The media had a field day, proclaiming the end of employer monitoring of employee electronic communications. However, as we explained in our summary, the case didn't go that far. It was limited to situations where the electronic communication did not reside on the employer servers (contrary to the practice of most company email systems), and where there was an informal policy that the employer would not monitor the communications (contrary to most employers' express policy permitting monitoring).

Guess what? This may not be the end of the story. According to Alston & Bird employment and privacy specialist Jesse Jauregui, today the U.S. Supreme Court has just picked up the case for review (under the caption City of Ontario, California v. Jeff Quon, et al.). See here.

Based on how the Ninth Circuit usually gets treated by the U.S. Supremes, anyone want to bet how this one will come out?

Here's Jesse's take on the Supreme Court's action:

EMPLOYERS - THE UNWITTING DEPUTIES IN THE IMMIGRATION WARS

Mon, 14 Dec 2009 14:07:21 GMT

NOTE FROM THE EDITOR: I am soooo happy I have colleagues like Eileen Scofield who love immigration law...so I don't have to. I don't even have to like it very much. In fact (just between us), I don't even have to understand it. Eileen does. And boy does she ever. Understand it, that is.

Here's what I mean. Eileen is a member of the AILA's (American Immigration Lawyers Association) National Verification & Documentation Liaison Committee and chairperson of the E-Verify National Liaison Committee, and recently wrote up a summary of executive level meetings she and her Committee had with the Obama administration's Department of Homeland Security to discuss immigration and verification issues. I tried really hard to follow it, but it is simply over my head.

But it's right up the alley of fellow immigration specialists (affectionately known as Immigration Geeks, or IGs), and so it is for all you IGs out there that this post is dedicated.

For the rest of us mortals, well, when faced with an immigration issue, I recommend you do what I do (after plugging my ears, closing my eyes, and saying "nah nah I can't hear you"): Call Eileen.

INTRO: Way back in 1986, with the passage of the Immigration Reform and Control Act (IRCA), employers were officially deputized as pseudo-immigration officers in the battle against illegal immigration, charged with screening and enforcing various immigration laws. Initially, this was through the use of the I-9 Employment Verification Form, whereby every employer was to verify the identity and work authorization of every new employee hired. However, not surprisingly, in the last 24 years, this process, and the related liability, has expanded and now includes other employer tools such as social security number verification processes (SSNVS), E-Verify processes, and more.

What follows is Eileen's summary of her Committee's discussions with the Department of Homeland Security, particularly as to those issues with the greatest impact on employers, including DHS search tools, E-Verify changes, and fines for I-9 violations. (MDY)

2009 EMPLOYMENT LAW SUMMARY: DID WE ACCOMPLISH ANYTHING THIS YEAR?

Fri, 11 Dec 2009 12:21:14 GMT

Part 2: The California Supremes

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.

IRONY AT ITS BEST....

Thu, 10 Dec 2009 13:38:48 GMT

A jury found the California Unemployment Insurance Appeals Board, one of the most notoriously employee-friendly governmental bodies in the State, liable under FEHA for unlawful retaliation against one of its employees.

On appeal, the court affirmed the judgment, finding there to be sufficient evidence to support the jury's verdict. [George v. Cal. Unempl. Ins. Appeals Bd. (CA5 F055385 12/9/09)]

Am I the only one who finds this incredibly ironic???

2009 EMPLOYMENT LAW IN REVIEW: DID WE ACCOMPLISH ANYTHING THIS YEAR?

Mon, 07 Dec 2009 18:08:54 GMT

Part 1: The U.S. Supremes

We here at Alston & Bird’s Who’s The Boss? employment blog have taken a look in the rearview mirror to see what has happened in our insular world over the past 12 months or so. We looked at court cases, legislative enactments, and regulatory developments, particularly those impacting California. What we found was pretty interesting, even entertaining.

While the developments seem more along the lines of moderate refinements than any earth-shattering alterations in the basic power balance between employers and employees, their impact will nonetheless be felt in various degrees as we head into the next decade.

With no promises that these are the “most significant’ employment law developments of 2009, we nonetheless share what we think are some of the more interesting highlights of the year.

We’ll do this in stages.

• Today, we’ll highlight four U.S. Supreme Court opinions impacting employers.

• We’ll follow this with highlights from the California Supreme Court. Don’t blink, there aren’t many.

• Next, we’ll look at some of the more interesting issues still on the California Supreme Court’s docket for next year. There are a bunch.

• Then comes legislative and executive developments (were 750 pages of FMLA regulations really necessary?)

• Finally, we’ll take a look at some of the California appellate court employment opinions that made headlines or simply impacted employers, employees, or their attorneys.

[Our thanks to Employment Law 360, which ran a version of this article in two parts in its influential employment law publication.]

ROBY V. MCKESSON -- THE CALIFORNIA SUPREMES MAKE IT EASIER TO PROVE INDIVIDUAL SUPERVISOR HARASSMENT LIABILITY…WHILE DIALING BACK ON PUNIES

Mon, 30 Nov 2009 20:06:17 GMT

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.

EMPLOYER’S CATCH A BRAKE – COMMUTE TIME IN EMPLOYER VEHICLES STILL NOT COMPENSABLE IN CALIFORNIA…MAYBE

Fri, 16 Oct 2009 15:00:51 GMT

If only I could be paid for my commute. See, I live in the South Bay (the Southern California version) and commute to downtown Los Angeles along the 405, 105 and 110 freeways. It's neither quick, nor particularly attractive. (I save a little time in my Natural Gas Honda Civic, which gets me in the carpool lane, but not nearly as much as I did P.H. (pre-hybrid). Now that those pesky Prius’ are allowed in the carpool lanes, I often go no faster than the carbon monoxide spewing Hummers two lanes over.)

So imagine if I could get paid for commuting. I’d be rich!... and wouldn’t need to commute to work anymore. Think of the incentives in car-happy California? I might even want to drive in the slow lanes (which is redundant, especially during “rush hour,” which isn’t an hour and no one rushes.)

But getting paid to sit in morning gridlock listening to NPR (fine, Mark & Brian) would be wrong, wouldn’t it?

Mike Rutti decided to find out (or perhaps his attorney did). Rutti v. Lojack Corp. is the result.

SUPREME COURT'S TWOMBLY AND IQBAL GIVE CORPORATE DEFENDANTS NEW TOOLS TO STAVE OFF EMPLOYMENT PLAINTIFFS SEEKING TO DEFEAT DIVERSITY

Wed, 07 Oct 2009 12:04:17 GMT

Martha Doty, one of our California L&E specialists, has been railing for years (at least it seems like years to those of us who have to listen to it in group meetings and lunchroom therapy sessions) against the ease by which employees can destroy diversity jurisdiction – and hence prevent removal to federal court – by the simple artifice of naming sham defendants. Indeed, at the risk of further educating and emboldening the plaintiff’s bar, Martha even wrote a piece on the apparent upsurge in the use of defamation claims as the diversity-killing tool de jour: “Defamation: The New Diversity-Killing Claim For Employment Actions.”

Well, for once, there is some good news for diversity employers. As Martha explains in her new piece, the U.S. Supreme Court has provided employers with a little help in the battle against sham defendants. Read on to find out how Twombly and Iqbal are changing the removal landscape.

---------------------------------------------------------------------

Plaintiffs have grown increasingly clever at frustrating defendants hoping to remove cases to federal court, by joining non-diverse defendants based on the barest of allegations.

Given the high bar required for defendants to establish fraudulent joinder, district courts are increasingly finding even those thin allegations sufficient to defeat removal, particularly in employment cases.

For example, a plaintiff alleging slander based on a supervisor’s statement that the plaintiff had a conflict of interest was held to have stated facts sufficient to defeat fraudulent joinder where the plaintiff had alleged in conclusory fashion that the alleged defamatory statement “was made with malice,” that the defendants knew the statements “were false when they made them,” and that the plaintiff “could allege facts sufficient to support malice.” The district court remanded the case to state court, ruling that these boilerplate and conclusory allegations were sufficient because the defendant had not established that “there was no possibility” the plaintiff could recover. In other words, merely pleading the basic elements of a cause of action, with no added facts about the particular employment relationship at issue, defeated diversity.

The standard should be higher. Two recent U.S. Supreme Court decisions may bolster defendants’ efforts to establish the insufficiency of boilerplate allegations, force plaintiffs to plead more facts, and defeat remand motions to keep cases in federal court.

EEOC EXPANDS ADA'S DEFINITION OF "DISABILITY"

Mon, 28 Sep 2009 20:23:25 GMT

From time to time, our firm sends out advisories to our clients regarding labor and employment issues that are particularly topical. Today's introduction to the new proposed disability regulations is an example. In the advisory that follows, Rory Diamond summarizes the EEOC's proposed new definition of "disability" and some of its expected consequences. Employers everywhere should keep abreast of these important changes.

---------------

On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect, greatly expanding the definition of “disability” in the Americans with Disabilities Act (ADA). The ADAAA overrides the holdings in several U.S. Supreme Court decisions and some EEOC regulations that Congress felt construed the definition of “disability” too narrowly.

On September 23, 2009, the EEOC published in the Federal Register a long-awaited Notice of Proposed Rulemaking (NPR) seeking to implement the ADAAA. [See “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 74 Fed. Reg. 48431, 48440 (Sept. 23, 2009) (to be codified at 29 C.F.R. pt. 1630).] The new proposed definition of “disability” incorporates many medical impairments. The changes apply to both the ADA and the Rehabilitation Act (covering Federal employees).

Outlined below is a guide to the more significant changes we can expect should the NPR become regulation.

BATTLE OF THE TITANS: WHEN TRADE SECRET PROTECTION AND THE PROHIBITION ON NON-COMPETES HIT HEAD ON IN CALIFORNIA – ONE COURT GETS IT RIGHT

Wed, 23 Sep 2009 20:46:26 GMT

We all know that non-competes are generally verboten in California. If you aren’t sure, read this brilliant blog entry (and this one). California is very protective of its workers’ rights to move from job to job, shopping his or her talents to the highest bidder (so to speak).

We also know that California is very protective of an employer’s right to protect its intellectual property, including especially its trade secrets. This includes, of course, customer lists and client information under proper circumstances.

So what happens when these two important and closely protected public policies crash head on into one another?

What happens when workers want to compete with their former employer by soliciting business from the employer’s customers…and the customer contact information is both stored in the employer’s database and (with a little digging) available from public sources? Who wins this one?

A new California case helps us sort it all out.

STARBUCKS HANGS ON TO ITS $86 MILLION TIP MONEY -- BUT WHAT'S NEXT?

Thu, 10 Sep 2009 12:57:17 GMT

Remember way back when, when we reported on the reversal of the $86 million Starbucks tip pool verdict? You can read about it here. At the time, we agreed with the court's decision, opining that:

It made no sense to deprive hard working baristas, who happen to also be shift supervisors, of tips they helped generate. These folks steam the soy and press the espresso, standing shoulder to shoulder with their barista brethren, doling out caffeinated charm to an often charmless public, and deserve the tips just as much as those they supervise.

Not surprisingly, the winners of that $86 million windfall were not pleased to see their tip money evaporate like the steam off a freshly foamed decaf cappuccino, dusted with cinnamon (I'm telling you, with similes like this, I should have been a novelist!). They did what anyone would do in their shoes, they pleaded with the Supreme Court to review the appellate ruling.

Alas, it was to no avail. Yesterday, the Supremes in their infinite wisdom declined to hear the case (only Justice Werdegar voted in favor of review), thereby leaving the tip jar $86 million short, according to the plaintiffs.

So now what? It's not clear there is any more steam in this engine (I'm on a roll). The appellate court ordered that judgment be entered in Starbuck's favor, and that's apparently the end of it.

Or is it? According to the IWW Starbucks Workers Union, it is already gearing up for a new class action, this one (according to the Union's website) based on alleged use of "harsh police-style interrogation tactics" that has led to "numerous false confessions, which Starbucks has then used to terminate or extort 'restitution' from employees."

As I said before: "I think I’ll grab my decaf cappuccino and watch the show."

SECONDARY EMPLOYMENT FOR FURLOUGHED EMPLOYEES – WATCH THOSE CONFLICTS…AND UNFORTUNATE WORD CHOICES

Mon, 24 Aug 2009 16:57:40 GMT

A small splash was made recently when a Sacramento television news station reported that the California Department of Public Health had issued a memo to furloughed employees that they should consider taking a second job at Target or Macys.

It seemed the government workers at the DPH didn’t like the idea of being told to moonlight at local retailers. And who can blame them.

Only that’s not really the way it happened. (I know, hard to believe a local television news report might have misinterpreted something and then blown it all out of proportion.)

Nonetheless, this provides a few valuable lessons for both employers and employees when circumstances are such that secondary employment may become necessary.

WORKPLACE VIDEO SURVEILLANCE -- A NEW STANDARD

Fri, 14 Aug 2009 15:02:00 GMT

What does the California Supreme Court's recent decision in Hernandez v. Hillsides, Inc. mean to California employers who have legitimate needs for workplace video surveillance of its employees and work areas? Plenty.

Alston & Bird workplace privacy specialist Jesse Jauregui not only explains the case, but offers valuable insights and tips to California employers. (Our thanks to Employment Law 360 for publishing the article in its August 13, 2009, edition.)

The two ends of the workplace privacy spectrum have been fairly well defined by prior California law. On the one hand are those cases that have allowed covert videotaping in open and accessible workplace areas.

On the other hand are those cases that find a violation of the right to privacy by videotaping areas reserved for personal acts such as employee restrooms and dressing areas.

In Hernandez v. Hillsides, Inc., S147552 (August 3, 2009), the California Supreme Court was confronted with a scenario that falls between those extremes and further delineated the extent to which an employer may conduct workplace video surveillance of its employees without violating their right to privacy.

$1.6 MILLION SANCTION AWARD SENDS A LOUD MESSAGE THAT INEVITABLE DISCLOSURE REALLY IS DEAD AND BURRIED IN CALIFORNIA

Fri, 03 Jul 2009 01:19:00 GMT

_{[A Flir infrared imaging system utilizing a microbolometer array]}You’ve probably heard about the inevitable disclosure doctrine. It’s a great trick for employers. It’s like getting all the benefits of a non-compete without actually having to bother with those nettlesome non-compete agreements.

Just don’t try it here in California.

At least not without a sizeable bankroll and a Get Out Of Jail Free card, as Flir Systems, Inc. learned the hard way. It was sanctioned $1.6 million for seeking to invoke the doctrine in a California trade secret case.

This is just one of the many lessons provided to us by the California appellate court in the case of Flir Systems, Inc. v. Parrish (2d Civ. No. B209964, June 15, 2009).

For those of us who practice trade secret law, it’s a good read.

$4.1 BILLION SINGLE PLAINTIFF ARBITRATION AWARD ... CONTINUED

Wed, 17 Jun 2009 12:22:00 GMT

While we are getting accustomed to hearing the "Billion" word associated with "dollars" these days, a $4.1 billion award for a guy who suffered a firing in these times is still pretty remarkable. We are even willing to go out on a limb here and say "unprecedented."

Hence, it is not surprising that the news of California's $4.1 Billion wrongful termination arbitration award, first reported here on June 8, 2009, has raised some eyebrows and made its way around the blogosphere. Vickie Pynchon, author of the wildly popular Settle It Now negotiation blog, first picked up on the story on June 3. The Associated Press picked it up a few days later. (See, e.g., here, in the Minnesota Star Tribune.)

The news has struck a chord with the national legal community as well. The National Law Journal published an interview with our own Michael D. Young here as he broke down the award to explain how a single individual's firing let to the stratospheric damages.

New York's Ben Hallman's June 12, 2009, article in the AmLaw Litigation Daily is here. (Our only question here on the west coast is...what's Crunch & Munch?)

$4.1 BILLION ARBITRATION AWARD FOR A SINGLE FORMER EMPLOYEE? ONLY IN CALIFORNIA.

Mon, 08 Jun 2009 13:43:00 GMT

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.

Arbitration is supposed to be more stable, more predictable, more conservative.

Tell that to iFreedom Communications International Holdings Limited and it's founder Timothy Ringgenberg. But don’t be within swinging distance when you do.

iFreedom and Ringgenberg just got tagged for over $4.1 Billion (yes, with a B) in a single plaintiff wrongful termination employment arbitration.

COURT ADDS SENSE TO STARBUCKS TIP POOL -- REVERSES $86 MILLION CLASS ACTION VERDICT

Wed, 03 Jun 2009 13:04:00 GMT

It had to happen, didn’t it? The $86 million class action verdict against Starbucks had to be reversed, didn't it?

It made no sense to deprive hard working baristas, who happen to also be shift supervisors, of tips they helped generate. These folks steam the soy and press the espresso, standing shoulder to shoulder with their barista brethren, doling out caffeinated charm to an often charmless public, and deserve the tips just as much as those they supervise.

So it was strange indeed when, in March of 2008, a San Diego superior court judge ordered Starbucks to pay its non-supervising baristas $86 million in restitution. This was based on a state Labor Code statute (Calif. Labor Code Section 351) that stated:

"No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.”

According to trial judge Patricia A.Y. Cowett after a bench trial, the shift supervisors were “agents” of the employer, and hence were ineligible to share in the tips left in the communal tip jar despite the fact that these supervisors were also Vente vendors who “earned” the tips in the first place.

TOP 10 “UNIQUE” CALIFORNIA EMPLOYMENT LAWS

Mon, 01 Jun 2009 20:06:00 GMT

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!]}

MANDATORY PAID SICK LEAVE? IT MAY BE THE LAW!

Mon, 01 Jun 2009 19:09:00 GMT

_{[Our thanks to xaminmo and jeremias11 of Flickr}

_{for making this photo available!]}

Swine flu hit your office?

If the recently introduced "Healthy Families Act" makes its way through Congress, employers will with more than 15 workers will be obligated to provide up to 56 hours of paid sick or health-related leave per year for all of its U.S. employees.

The "Healthy Families Act," which had been introduced in the two previous sessions of Congress with little forward momentum, may find a more receptive audience this time around, with Senator Edward Kennedy sponsoring the bill in the Senate, and Congresswoman Rosa L. DeLauro sponsoring it in the House. For those of you who were really paying attention, President Obama co-sponsored a similar 2007 bill and is likely to support this version.

AT&T CORP. v. HULTEEN - THE SUPREMES RULE NO RETROACTIVE APPLICATION OF THE PREGNANCY DISCRIMINATION ACT

Tue, 19 May 2009 13:17:00 GMT

Does the 1978 Pregnancy Discrimination Act apply retroactively? That was the question before the U.S. Supreme Court as it reviewed the Ninth Circuit’s decision in AT&T Corp. v. Hulteen (U.S., No. 07-543). (See here for the formal Questions Presented.)

“Nope.” That was the answer the Supreme Court provided as it once again overturned the Ninth Circuit.

In Hulteen, the Supremes reviewed AT&T’s pension calculations which, since 1914, were based on a seniority system…with an exception. Specifically, in the 1960s and early to mid-1970s, AT&T employees on “disability” leave got full service credit for the entire periods of absence, but those who took “personal” leaves of absence received maximum service credit of 30 days. Leave for pregnancy was treated as personal, rather than disability.

Between 1914 and today, the social landscape has changed a bit here and there.

EMPLOYEE'S PAYCHECK DEDUCTION LEADING TO CLASS ACTION?

Thu, 14 May 2009 20:39:00 GMT

Can you deduct from an employee's paycheck a debt owed by the employee to the employer? What about the cost of a computer the employee purchased from the employer? Parking charges? Personal mailing charges? The dry cleaning bill to get the coffee stain out of the rug in the employee's office?

Beware! Deducting anything but taxes and health insurance premiums from employees’ paychecks could set up a ready-made wage class action.

LEGAL DANGERS OF VIDEO RESUMES – HAS ELLE WOODS MET HER MATCH?

Mon, 27 Apr 2009 20:39:00 GMT

I must be too cloistered here at the law firm because I only see paper resumes. I’m talking about the old fashioned kind with "Education" and "Experience" filling the bulk of the page, and maybe some "Hobbies" or "Personal" (“I like movies”) at the bottom to give me something to talk about if the interview is going poorly. ("I like movies too.")

Which is not to say I didn’t notice Elle Woods’ video application to Harvard Law School in Legally Blonde. (Uh, my wife made me see it. Three times.)

Well, apparently, there is a raging debate out there (o.k., “raging” may be a little excessive) over the use of video resumes. Time and MSNBC have produced articles about it. Web sites have sprung up to exploit it. And blogs are out there lambasting the worst of them. (Did these people really expect to land a job with these things?)

Some (those helping create them for a fee) see video resumes as de rigueur for the new technology generation. Others see them as a dying fad that never caught on for a variety of reasons, not the least of which is employers can’t skim through them.

But what about the legal aspects of video resumes? Should employers fear potential discrimination lawsuits if they receive them? Are the candidates themselves at risk for what they put on their videos?

SLY STALLONE’S PUDDING CLARIFIES CALIFORNIA TRADE SECRET LAW…SORT OF

Mon, 20 Apr 2009 18:27:00 GMT

Tempting as it is, I won’t title this post something stupid like:

Rambo Reduced To Low Carb Pudding Theft, or

Stallone Steals Secret Soufflé Specs

(nice alliteration, though). Besides, who knows whether the pudding recipe is a secret at all, or whether Stallone even stole it. That’s for the jury to decide, at least it is now that the California appellate court has sent the dispute back to the trial court in Brescia v. Angelin (2009) 172 Cal.App.4th 133.

But the court opinion is not about Stallone (though I suspect the reason the dispute arose in the first place is all about Stallone). The Brescia opinion is significant because it is the first time in years that the California appellate courts have tried to provide California trade secret practitioners with a little guidance about a slippery discovery statute that has probably caused more problems (aka “legal expense”) than it has cured: Section 2019.210 of the California Civil Procedure Code.

Time will tell whether the effort was successful. But I’m getting ahead of myself.

DEFAMATION: THE NEW DIVERSITY-KILLING CLAIM FOR EMPLOYMENT ACTIONS

Fri, 17 Apr 2009 12:17:00 GMT

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.

DODGING FEDERAL COURT

In September 2008, the Daily Journal reported on a study published by the Harvard Law & Policy Review finding that plaintiffs’ lawyers handling employment discrimination claims are “increasingly trying to dodge federal courts.” For years, plaintiffs’ most potent weapon to avoid federal court was naming the plaintiff’s immediate supervisor as a defendant, destroying diversity. In order to successfully remove, defendants have to establish the supervisor as a “sham defendant” against whom no possible cause of action can be stated, a high hurdle. Federal courts, generally disfavoring diversity jurisdiction, are happy to remand state employment claims back down to the plaintiffs’ favored ground.

CAN EMPLOYERS REALLY FORCE CALIFORNIA EMPLOYMENT CLAIMS TO BE HEARD IN OTHER STATES?

Wed, 15 Apr 2009 20:24:00 GMT

Assume you were an Oregon employer who had hired hundreds of California workers; and let’s just say you had to be sued in a class action lawsuit over wage and hour issues. Where would you prefer the lawsuit to be held, in California or in Oregon? (Don’t answer that, it’s rhetorical.)

^{(Our thanks to dok1 for the photo)}

Now answer this question honestly: What are the odds of being able to force California workers -- who have never worked outside the state and who have filed a California wage and hour class action in California Superior Court -- to travel up to Oregon in order to litigate their California employment rights? Personally, I would have put my money on the Clippers winning the NBA title next year over that.

Good thing I’m not a betting man. Oregon home design and decorating specialists, Custom Decorators, Inc., pulled it off.

FINALLY, A CITABLE CALIFORNIA CASE CONFIRMING TRADE SECRET PREEMPTION!

Tue, 24 Mar 2009 18:58:00 GMT

It has always been a mystery to me why we in California, home of the Silicon Valley, Goleta, Manhattan Beach, and other hot beds of trade secret development – and trade secret theft – don’t have our very own trade secret preemption case law. Why have we never had a judicial opinion squarely holding that the California Uniform Trade Secret Act (CUTSA) preempts other related causes of action? Well, the wait is over....

A RISE IN EMPLOYMENT CLASS ACTIONS A NEW PHENOMENON? HARDLY.

Mon, 16 Mar 2009 16:56:00 GMT

There seems to be no end to the depths to which the stock market can sink, nor the heights to which new employment class action lawsuits can rise. Coincidence? A direct correlation makes sense. As the economy sputters, jobs are lost. When jobs are lost, lawsuits are filed. When many jobs are lost all at once, class actions abound. But this seems pretty simplistic.
_{^{(Our thanks to Heartlover1717 for the photo)}}

A quick trip through Memory Lane (thanks to Google)suggests that perhaps the correlation is false. By that I mean it seems that throughout this decade, regardless of the year or the state of the economy, one can find declarations (mostly by defense attorneys, but some empirical studies as well) that “employment class actions are on the rise.” Consider the following nuggets I found trolling the Net.

LEDBETTER FAIR PAY ACT AND PAYCHECK FAIRNESS ACT -- SURVIVAL TIPS UNDER THE NEW EMPLOYEE-FOCUSED ADMINISTRATION

Thu, 12 Mar 2009 20:04:00 GMT

[Originally posted Feb. 2, 2009]

As anticipated, less than two weeks into the new administration and employment compliance has already grown more complex.

On January 29, President Obama signed the Lilly Ledbetter Fair Pay Act, taking the first step in what is expected to be a series of pro-employee changes to the employment laws that will bring significant new challenges to employers. What can or should employers do to protect themselves?

PICKING OFF THE PLAINTIFFS -- How Chindarah v. Pick Up Stix Allows Employers To Undercut A California Wage and Hour Class Action

Wed, 11 Mar 2009 18:12:00 GMT

You may not be able to do it with claims brought under the Federal Labor Standards Act (FLSA), but you can do it with claims brought under the California Labor Code.

Addressing the issue head-on for the first time, the California appellate court in Chindarah v. Pick Up Stix allowed an employer, when faced with a California wage and hour class action, to pick off the putative class members one employee at a time through a settlement agreement and release. Before a class certification motion could even be brought there was nary a class member left!

CORPORATE RAIDING OR PLAIN OLD COMPETITION? -- What's Wrong With The Vistakon Pharmaceutical v. Bausch & Lomb Anti-Raiding Lawsuit

Tue, 10 Mar 2009 14:30:00 GMT

What ever happened to good old-fashioned competition?

And this includes competition for top employees.

Since when has it become a tort, or the ever popular “unfair competition,” to offer top employees more competitive salaries and benefits in an effort to entice them away from their current at-will employment situations?

Yet, this is the essence of the claim recently filed in Florida by Vistakon Pharmaceuticals (a subsidiary of Johnson & Johnson) against competitor Bausch & Lomb. Vistakon, maker of “ocular anti-bacterial products” (among other things) has sued Bausch & Lomb claiming that B&L, in entering the “ocular anti-bacterial products” market, is trying to steal (actually to “flagrantly pirate”) Vistakon’s at will sales force by…offering them better employment. (The nerve!)

NO NONCOMPETES IN CALIF. – SO WHAT ELSE IS NEW?

Thu, 18 Sep 2008 19:43:00 GMT

It is well known in the employment world that California is not the state to try out your new noncompete language. In the state that created the legislative Task Force to Promote Self-Esteem, employee interests have always been paramount to those of the employer; and nowhere is this better reflected than in California’s venerable 136-year-old statutory prohibition on noncompete agreements.

In refreshingly clear and concise language (for a law drafted by politicians anyway), California’s Business and Professions Code Section 16600 stands out like a sentinel, protecting the right of California’s workers to find the best work available to them, and barring any contracts that seek to prevent workers from engaging in healthy, lawful competition.

Edwards Is No Surprise – Trade Secrets Next?

Sat, 09 Aug 2008 18:42:00 GMT

An interesting footnote to the Edwards v. Arthur Andersen non-compete opinion is the Supreme Court’s refusal to address the so-called trade secret exception to the non-compete prohibition of California’s B&P Section 16600. In essence, the Court rejected the Ninth Circuit’s effort to imply a “narrow restraint” exception into 16600’s otherwise straightforward prohibition on restrictive covenants, but then stated: “We do not here address the applicability of the so-called trade secret exception to section 16600….”

No More Non-Solicitation Agreements?

Thu, 07 Aug 2008 13:03:00 GMT

What’s An Employer to Do?

Most California employers are well aware that non-compete agreements are generally unlawful in this State. And most California employers are none too pleased about it. But a statute that has been on the books for over 136 years is a statute that must be reckoned with, and – according to the recent California Supreme court opinion in Edwards v. Arthur Andersen - strictly obeyed.

Supreme Court To Consider No-A**hole Rule?

Mon, 07 Jul 2008 13:14:00 GMT

Can supervisors be held individually liable for being boorish (the closest legal term I could think of for “a**hole”) when most of that supervisor’s conduct is well within his or her employment duties? The California Supreme Court will be heading back to the workplace soon to address whether conduct that falls within the scope of the supervisor’s duty can nonetheless be considered in a “harassment” analysis. Click here for the appellate court opinion in Roby v. McKesson.

Can Employers Be The Text Police?

Mon, 07 Jul 2008 13:02:00 GMT

The Ninth Circuit just came out with a new opinion that seems to implicate an employer’s ability to monitor employee text messages. In Quon v. Arch Wireless , the Court established some privacy protection for employer-provided texting capabilities, but it may be fairly limited to the facts before it. Any thoughts on the opinion and its impact on employers?

Employers As Text Police – The Full Story

Mon, 07 Jul 2008 13:00:00 GMT

The Media have reported recently that a new Ninth Circuit decision – Quon v. Arch Wireless – has increased employee privacy rights in their company emails and text messages, and prohibited employers from monitoring their employees’ electronic communications. Can this possibly be right? Do employers now need to change their email policies? Can employees now use their company-provided Blackberries and pagers with impunity, free from any employer monitoring or oversight? Are employers now subject to liability for monitoring their employees’ electronic communications? Not so fast...