Personnel File from Liebert Cassidy Whitmore

2012 Employment Law Update For California Private Sector Employers

Wed, 04 Jan 2012 12:00 AM PST

Unlike previous years, 2012 brings several labor and employment law changes for California's private sector employers. Below is a brief summary of these changes (all went into effect on January 1, 2012, unless otherwise noted):

CALIFORNIA LAW

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California Court of Appeal Provides Guidance In Determining Whether Employees Must Be Paid For Unused Paid Time Off At Termination

Mon, 21 Nov 2011 12:00 AM PST

Some employers offer Paid Time Off (PTO) benefits that an employee may use for any reason he or she chooses. However, this benevolence may result in an employee filing, and prevailing on, an unpaid wage claim following termination of employment.

California Labor Code section ...

Labor Code Section 2802 Does Not Obligate An Employer To Indemnify A Former Employee Against Claims Brought By The Employer

Thu, 10 Nov 2011 12:00 AM PST

Labor Code section 2802 obligates an employer to indemnify its employee for the necessary expenditures or losses incurred as a direct consequence of the employee's discharge of his or her duties. This section has been applied to require an employer to indemnify an employee who is sued by th...

Employers Are Not Liable For Sexual Harassment Based On Sporadic, Unrelated, And Isolated Events

Fri, 21 Oct 2011 12:00 AM PST

American Movie Channel's acclaimed television series Mad Men is a theatrical representation of a Manhattan advertising agency set in the 1960's in which female secretaries of the agency are shown subjected to constant, sexually laced comments and advances by the...

Legal Update – NLRB Posting Rule Effective Date Postponed and California Supreme Court Set to Hear Arguments in Brinker Meal and Rest Period Case

Wed, 12 Oct 2011 12:00 AM PST

NLRB Posting Rule Effective Date Postponed to January 31, 2012

In the September 9, 2011 edition of The Personnel File, we addressed a new regulation from the National Labor Relations Board ("NLRB") requiring private sector employers to post in the workplace a notice o...

Parties Who Hire Independent Contractors Are Not Liable For Injuries Sustained By Contractor's Employees Even Where Hiring Party's Failure to Comply with Cal-OSHA Regulations Contributed To Injury

Tue, 27 Sep 2011 12:00 AM PST

In Privette v. Superior Court, the California Supreme Court held that, when employees of independent contractors are injured on the job, they cannot sue the entity that hired the contractor for work. The rationale for this holding was that workplace injuries are covered by workers' c...

NLRB Issues Final Rule Requiring Employers To Post Notice of Employee Rights Under NLRA

Fri, 09 Sep 2011 12:00 AM PST

On August 30, 2011, the NLRB published its Final Rule requiring private-sector employers to post the NLRA employee rights notice (NLRA Rights Notice) in the Federal Register. This posting requirement will be effective November 14, 2011 and applies to nearly all private-sector employers subj...

California Court Of Appeal Holds The Right To Reinstatement Under The California Family Rights Act (CFRA) Does Not Extend Beyond The Protected 12 Week Period

Fri, 26 Aug 2011 12:00 AM PST

Introduction

The California Family Rights Act (CFRA) generally applies to any employer with 50 or more employees. Similar to the federal Family Medical Leave Act (FMLA), the CFRA provides an eligible employee with up to 12 weeks of leave during any 12-month period to c...

Must a Plaintiff Claiming Retaliation Prove a Tangible Employment Loss? Not Necessarily Says the 10th Circuit U.S. Court of Appeals

Wed, 17 Aug 2011 12:00 AM PST

When a plaintiff claiming discrimination, harassment or retaliation brings a law suit, it has generally been understood that they need to prove damages. Often those damages must be a tangible employment loss. In the recent case of Hillig v. Rumsfeld, the 10^th Circuit...

Employers Must Comply With Subpoenas Issued From The EEOC That Are Relevant To A Valid Charge Of Unlawful Discrimination

Mon, 01 Aug 2011 12:00 AM PST

Think you can blow-off a request for information from the Equal Employment Opportunity Commission (EEOC)? Think again. A U.S. Court of Appeals recently sent a clear message to employers that they are required to comply with lawful requests for information and subpoenas issued by the a...

Employees Who Work Consecutive Overnight Shifts That Extend Two Workdays Are Not Entitled To Split Shift Premium Pay

Fri, 15 Jul 2011 12:00 AM PST

Wage Order No. 4, issued by the Industrial Welfare Commission, regulates wages and other working conditions in California for employees in professional, technical, clerical, mechanical and similar occupations. It provides that an employer must pay an employee who...

Supreme Court Maintains That Employers Cannot Be Liable Twice For The Negligence Of Their Employees

Fri, 01 Jul 2011 12:00 AM PST

It was not uncommon in past years for attorneys representing employers to admit…yes, admit…vicarious liability for the negligence of their employees, particularly employees involved in auto accidents on the job. The idea was that, by admitting the employer was vicariously liable for their e...

Sexually Explicit and Offensive Comments, Without a Showing of Sexual Desire by the Harasser, Are Insufficient To Establish Same Sex Harassment

Thu, 16 Jun 2011 12:00 AM PST

In order to establish a claim for same sex harassment under California's Fair Employment and Housing Act ("FEHA"), claimants now must show that the harassment was motivated by sexual desire. Further, in cases where the harassment serves as a basis for a claim of sex discrimination, claimant...

Federal Court of Appeals in Chicago Finds Software Account Manager Exempt from Overtime Under FLSA's Administrative Exemption

Fri, 03 Jun 2011 12:00 AM PST

Those of us charged with understanding and interpreting the Fair Labor Standards Act (FLSA) have torn our hairs out for years trying to understand and apply the exemptions. The criteria for the professional and executive exemptions are relatively clear although sometimes confusing. However, the m...

U.S. Supreme Court Holds That Federal Arbitration Act Preempts California Case Law Prohibiting Class Action Waivers In Arbitration Agreements

Thu, 19 May 2011 12:00 AM PST

In 2005, the California Supreme Court held in Discover Bank v. Superior Court that class action waivers in consumer arbitration agreements were unconscionable in certain circumstances. Specifically, a consumer arbitration agreement is unconscionable and therefore invalid if: (1) the ...

Employees Who Fraudulently Abuse Their Employer's Computer Use Policy May Be Guilty Of Federal Crime

Tue, 10 May 2011 12:00 AM PST

When does an employee's misuse of their employer's computer constitute a federal crime? According to a recent decision of the U.S. Ninth Circuit Court of Appeals, an offense may be committed when the employee exceeds the employer's authorization to access the employer's computer, and does s...

Complaining About Harassment To The Perpetrator May Be Enough To Put The Employer On Notice

Mon, 25 Apr 2011 12:00 AM PST

Once an employer receives a complaint of harassment from an employee the obligation arises to conduct a thorough investigation and to take immediate and appropriate corrective action where warranted. What happens when the harasser is the victim's supervisor and t...

Employees Who Are Called Into Work On Their Days Off Or When They Have No Expectation Of Working Their Usual Shift Are Entitled To The Minimum Of Two Hours Reporting Time Pay

Tue, 12 Apr 2011 12:00 AM PST

When an employee is called into work, but is not put to work or is given less than half of his or her usual or scheduled day's work, that employee is guaranteed a minimum amount of compensation, or "reporting time" pay. Section 5(A) of the Industrial Welfare Commission's Wage Orders mandate...

Court Rules that an Employer Using an Explicit Mutual Wage Agreement is Not Required to Pay Additional Overtime

Fri, 11 Mar 2011 12:00 AM PST

Introduction

In a recent opinion, the California Court of Appeal ruled that an employer and employee may explicitly agree to a pay arrangement in which a non-exempt employee may receive a fixed salary for all work (incl...

Good News: It May Get Harder To Attain Class Action Status for Missed Meal and Rest Period Lawsuits; Bad News: The Damages May Be Steeper for Some Employers

Thu, 24 Feb 2011 12:00 AM PST

On February 17, 2011, two California Court of Appeal divisions gave California private employers both some very encouraging news, and perhaps a little bad news. First, in the what could be a sign of the death knell for many future class-actions-to-be, one court held that class action certif...