News

March 8th: International Women’s Day

The first “National Women’s Day” was observed in the United States in 1909, to recognize the 1908 garment workers’ strike in New York.  A year later, Women’s Day was recognized internationally at a conference in Copenhagen, where over 100 women from 17 countries created a worldwide day of celebration to advocate for women’s rights. In

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California Employment Background Checks: Know Your Rights

For years, employers have used background checks in making hiring and promotion decisions.  Since the advent of the internet, and particularly since the 9/11 terrorist attacks, more and more employers are requiring background checks as a condition of applying for employment—and they are increasing their reliance on such checks. Moreover, the internet has provided the

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New California Law Calls for Equal Pay for Women: Understanding Your Rights

From Robin Wright making news for demanding the same pay as her ‘House of Cards’ co-star Kevin Spacey to the U.S. Women’s National Soccer Team filing an EEOC charge for pay discrimination, equal pay is having a moment–and California’s equal pay laws are no exception. On January 1, 2016, California’s Fair Pay Act took effect to strengthen the

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Ban the Box Movement Gains Steam

Legal protections often lag behind technology, and nowhere is this more true than in the area of workplace privacy. Employers literally have the world at their fingertips, able to explore every aspect of a potential hire’s life history through internet searches and background checks. It’s not just HR departments one must worry about; the world

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The ABCs of School District Liability for the Abuse and Mistreatment of Students

A disturbing video surfaced recently of a teacher’s aide slapping, tackling, and throwing items at a nine-year-old boy at TobinWorld, a school for children with disabilities in Antioch, California.[1] Public records from the local police department show that from 2008 to 2014, there were 35 episodes of violence between staff and students at TobinWorld’s three

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EEOC Announces Pay Data Rule to Combat Workplace Pay Discrimination

There is good reason that Bay Area residents readily bandy about slang terms such as “tech bro” and “brogrammer”—terms that evoke a distinctive image—a tech scene made up of young male employees. Although the wage gap persists nationwide, recent reports have shown that both hiring and pay disparities are particularly pervasive in Silicon Valley, from

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Don’t Let Your Startup Blow Up

Over the years, we have observed a familiar pattern that catches many start-ups off guard and can prove costly and distracting. Worse yet, these companies could easily have avoided the problems. One of the Biggest Mistakes Start-Ups Do Companies in the early stages of growth predictably generate buzz and excitement that feeds the hopes of

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The Critical Case Recap: Week of October 13, 2014

Dynamex v. Superior Court (California Court of Appeal, Second Appellate Division): What It’s About:  Employer Dynamex appealed the trial court’s denial of its motion to decertify, arguing that the court improperly adopted the definition of “employee” from IWC Wage Orders to determine the status of class members, instead of using the common law definition of

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U.S. Supreme Court to Consider Scope of Religious Accommodation in Abercrombie & Fitch Hijab Case

The U.S. Supreme Court recently announced that it would review the Tenth Circuit’s decision in EEOC v. Abercrombie & Fitch.  731 F.3d 1106 (10th Cir. 2013).  In that case, the Tenth Circuit held that an employer is not liable under Title VII for failing to accommodate an applicant’s religious dress unless the applicant explicitly notifies

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The Critical Case Recap: Week of October 6, 2014

Ybarra v. Apartment Investment and Management Company (California Court of Appeal, Second Appellate District): What It’s About:  The Court of Appeal vacated and reconsidered its prior order reversing the trial court’s order denying the defendant’s motion to compel arbitration.  In light of Iskanian, the Court of Appeal held that the representative action waiver in the

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I was 1099’d: Employer Liability for Independent Contractors in the Service Sector

The Problem With Misclassifying Independent Contractors As the economy improves, there has been an increased focus on the problem of independent contractor misclassification in the service sector (the part of the economy in which employees provide services and information, in contrast to producing manufactured goods, mining, or farming). Since August 2009, employment by staffing agencies has

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New California Law Expands Harassment Training Obligation

The subject of bullying in schools and in the workplace has over the past several years attracted nationwide attention and generated significant discussion.  California recently took its first steps toward addressing the problem of workplace bullying. New Law Aims to Prevent Workplace Harassment On September 9, 2014, Governor Brown signed AB2053.  This new law amends

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California Becomes Second State To Require Paid Sick Leave

California Governor Jerry Brown yesterday signed into law the Healthy Workplaces, Healthy Families Act of 2014 (AB 1522), which requires employers to provide paid sick leave to most California employees.  According to the Legislature, sick leave benefits are good for both employers and employees, as sick leave lowers health care costs, increases productivity and prevents

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The Duty to Reimburse in the Digital Age

Reimbursing Tech Expenses in California As discussed in my companion post, “You Want Me to Pay for What?”  California law has long required employers to reimburse their employees for expenses reasonably incurred while working, so as to prevent employers from passing on their operating expenses to employees.  A recent California Court of Appeal ruling helps

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Ninth Circuit Affirms Class Cert Grant to Claims Adjusters

Yesterday, the Ninth Circuit gave plaintiffs an important victory in off-the-clock overtime cases when it affirmed the district court’s grant of class certification to a class of auto, property, liability, casualty, and special investigations claims adjusters in Jimenez v. Allstate .  The Court first rejected Allstate’s argument that the common questions identified by the district

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You Say Franchisor, I Say Employer.

CA Supreme Court opinion on franchise law Yesterday, the California Supreme Court addressed the circumstances under which a franchisor may be deemed to be the employer of a franchisee’s employees for purposes of the Fair Employment and Housing Act (FEHA).  The case, Patterson v. Domino’s Pizza, LLC, (Cal., Aug. 28, 2014, S204543) 2014 WL 4236175,

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Rhea v. General Atomics

In Rhea v. General Atomics, 14 C.D.O.S. 8201, the California Court of Appeal on Tuesday reaffirmed an earlier decision holding that an employer can require (or allow) an exempt employee to use vacation/paid time off (PTO) for partial day absences without compromising the employee’s exempt status.  The Rhea Court further held that an employer can

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My coworkers are harassing me. What are my rights?

Many people often ask me, “Is it harassment if my coworker makes racist remarks?”  The answer: maybe. Not every mean or rude comment qualifies as harassment. On the other hand, many employees suffer long periods of unlawful harassment or sexual harassment from their fellow employees but are unaware of what they can do about it.

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Overtime Pay Nuts and Bolts

Who is entitled to overtime pay in California? Both federal and California law requires that employees be paid the minimum wage for all hours worked and that nonexempt employees be paid the proper overtime pay rate for overtime hours worked.  Stating the rule is the easy part.  How is it applied in practice? First, one

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Criminal Records in the Hiring Process

Should an employer have the right to disqualify applicants based on criminal convictions?  If so, should the law impose any limitations on this right?  There exist strong arguments on either side of the debate.  From the employer’s perspective, uniform application of a policy excluding candidates who have a criminal conviction – i.e., application of the

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When is a Salesperson Entitled to Overtime Pay in California?

The default rule is that California employers must pay all their employees overtime. Employees who work overtime are entitled to 1.5 times their normal hourly pay, or “time and a half” for each hour worked over 8 hours per day or 40 hours per week.  Lab. Code 510, subd. (a). However, there are several categories

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The Critical Case Recap: Week of June 30, 2014

Ayala v. Antelope Valley Newspapers (California Supreme Court) What It’s About:  Newspaper home delivery carriers claiming they had been misclassified as independent contractors, brought a class action for overtime wages, unreimbursed business expenses, and other employment benefits.  Affirming a Court of Appeal decision, the California Supreme Court found that the trial court had erred in

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Supreme Court to Clarify Employers’ Duty to Provide Pregnancy Accommodations Under the Pregnancy Discrimination Act

Two days ago, the United States Supreme Court agreed to hear the appeal of a former United Parcel Service employee’s claim that the company violated the federal Pregnancy Discrimination Act (PDA) when it refused to provide accommodations for her lifting restrictions during her pregnancy, despite the fact that it provides accommodations to non-pregnant employees with

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White House Summit on Working Families: Possible Changes to Federal Leave Laws

According to the United Nations, out of 185 countries and territories with available information, the United States is one of the only three countries in the world, along with Papa New Guinea and Oman, lacking paid maternity leave.  Most developed countries provide both paid maternity and paternity leave, and paid family and sick leave.  Countries that

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Salas v. Sierra Chemical: California Supreme Court Upholds Undocumented Immigrants’ Rights to Bring Suit Under State Laws

Yesterday, the California Supreme Court decided Salas v. Sierra Chemical Co., affirming that the protections of California employment law are available to undocumented immigrants. In 2002, the California Legislature enacted Senate Bill 1818 in response to the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB limiting the ability of undocumented employees fired

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When Are Leaves of Absence a Reasonable Accommodation for Disabilities?

When employees are diagnosed with serious illnesses or injuries, they often need to take time off to seek treatment and recover. If the employee’s condition qualifies as a disability under the American Disabilities Act (ADA) or the California Fair Employment and Housing Act (FEHA), then an employer may be required to provide the employee with

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Coming Soon: Renewed Confusion Over California Paid Family Leave Benefits Law

California PFL In 2004, California’s Paid Family Leave (PFL) law took effect.  This law provides wage replacement benefits from the state disability insurance program for employees who take a leave of absence to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a minor child within one year of

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US Department of Labor Ramps Up Family and Medical Leave Investigations

“We don’t really investigate FMLA violations.”  This was the candid message that an investigator with the U.S. Department of Labor shared with me last year, in explaining that wage and hour violations, not violations of the Family Medical Leave Act, were the agency’s priority.  But change is coming, and fast.  As FMLA Insights reported in

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The Critical Case Recap: Week of June 2, 2014

Laguna v. Coverall North America, Inc. (Ninth Circuit) What It’s About:  Over an objection and the dissent of Judge Chen, this Ninth Circuit majority opinion approved the pre-certification class settlement of misclassification claims, as well as claims related to the franchise agreements between the defendant janitorial franchising company and its franchisees.  The decision held that

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The Critical Case Recap: Week of May 26, 2014

Duran v. U.S. Bank National Association What It’s About:  In a much-anticipated decision, the California Supreme Court struck down a $15 million trial court verdict obtained on behalf of employees who claimed they were misclassified as overtime-exempt, due to the trial court’s “flawed implementation of sampling,” which did not permit the defendant to present its

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3 Things to Consider in Physician Agreements

Can Doctors Negotiate Contracts? I’m surrounded by doctors.  No, I’m not in a hospital, I’m just married to one (a doctor-to-be, that is).  My husband is an M.D./PhD student, who recently finished his Ph.D. and is currently in his third year of medical school.   Many of our friends are medical students, residents, and fully licensed

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Brendan Eich, Free Speech, and the California Labor Code

Ilya Somin over at the Volokh Conspiracy has an interesting post about the implications of the Brendan Eich/Mozilla affair.  For those of us in California, of course, free speech protections in the workplace are nothing new.  California law has long prohibited employers from punishing employees for expressing their political views.  For example, Labor Code sections

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It’s Always Nice When the Ninth Circuit Proves You Right

Yesterday, the Ninth Circuit published its opinion in Baumann v. Chase Investment Services Corporation, in which it held that the Class Action Fairness Act (the “CAFA”) does not provide a basis for federal jurisdiction over claims brought under the Labor Code Private Attorneys General Act (the “PAGA”). In my most recent blog post, I discussed the

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New Barriers to Removal of PAGA Actions

California’s Labor Code Private Attorneys General Act (the “PAGA”) permits employees to step into the shoes of the state and sue their employers for civil penalties for Labor Code violations when the Labor and Workforce Development Agency declines to investigate the violations or issue citations. Under the PAGA, employees may bring suit on behalf of

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Security Guards Win Class Cert for Meal and Rest Break Claims

Interesting class certification decision involving security guards and on duty meal periods from the Central District of California last week. Judge Josephine Staton certified meal and rest period claims involving a class of 15,000 security guards who were required to sign on-duty meal period agreements and then work through their meal periods. The district court’s finding that

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San Francisco Family Friendly Workplace Ordinance Takes Effect

American society today is engaged in an ongoing cultural conversation about work-life balance and how anyone – and particularly women – can “have it all.”  In an effort to address the rapidly changing demographics of the nation’s workforce, San Francisco recently became the first American city to pass a “right to request” law, joining Vermont,

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Say Yes to the [Religious] Dress!

Christmas time raises the question for many employers: what is the role of religion in the workplace?  Although questions such as whether a Christmas tree in the hall is appropriate or whether it should be a “holiday” or “Christmas” party can be challenging, there’s one question that the California legislature has recently made easier for

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