Shaw Valenza LLP : Publications

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 9, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
9 May 2008

New on our Blog this week:
- Contractual Attorneys' Fees Provision Bites Employer
- Newspaper Delivery Drivers Are Employees for Workers' Comp. Purposes

THE CALIFORNIA SUPREME COURT ISSUES KEY CFRA DECISION
By Jennifer Brown Shaw
The Daily Recorder
8 May 2008

The federal Family and Medical Leave Act (FMLA) and California’s equivalent, the California Family Rights Act (CFRA), present various challenges to employers. The CFRA, like the FMLA, allows eligible employers up to 12 weeks of unpaid leave for, among other things, the employee’s own “serious health condition that makes the employee unable to perform the functions of the position of that employee.” Earlier this year, the U.S. Department of Labor (DOL) issued proposed revisions to the FMLA regulations that unfortunately do little to simplify the administration of leaves of absence. Now the California Supreme Court has further complicated the situation. While awaiting the final FMLA regulations, California employers should carefully review the Court’s decision in Lonicki v. Sutter Health Central.

MUCH ADO ABOUT LUNCHING
By D. Gregory Valenza
The Daily Journal
2 May 2008

Effective Jan. 1, 2000, Assembly Bill 60 implemented a number of changes to California's wage and hour laws. Many employers and their lawyers focused on the statutory restoration of daily overtime pay, which the Industrial Welfare Commission previously had abolished in several of its Wage Orders. As it turned out, though, AB 60's sleeper issue was the relatively small section of the law devoted to meal periods. AB 60 codified existing regulations mandating meal periods. However, the Legislature determined that employers were not following the rules because there were no financial consequences. So, AB 60 included a requirement that employers pay one hour's wages to employees who were not given a timely meal period in accordance with the law.

SUPREME COURT: EMPLOYERS NOT REQUIRED TO “ACCOMMODATE” EMPLOYEES’ MEDICAL MARIJUANA USE
By D. Gregory Valenza
California Labor & Employment Law Review
1 May 2008

The California Supreme Court’s opinion in Ross v. RagingWire Telecomm, Inc. emerged from a collision among principles of constitutional, criminal, and employment law, as well as public policy. The Court decided, 5-2, that employers have no duty under the Fair Employment and Housing Act (“FEHA”) to make “reasonable accommodation” for marijuana use permitted by California’s Compassionate Use Act. The Court also unanimously ruled that the plaintiff could not maintain a common law action for wrongful termination in violation of public policy. Rather, the Court reaffirmed its watershed drug testing decision in Loder v. City of Glendale, holding “[u]nder California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.” The Court’s opinion was based on an analysis of the relationship among the Compassionate Use Act, the FEHA, the California Constitution, and applicable provisions of federal law.

UNMASKING ILLEGAL ON-LINE ACTIVITY
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
28 April 2008

Most employers now have some web presence, through their own internet sites and also as an internet portal for employees who use the internet at work. Used illegally to spread defamatory statements or publish trade secrets, the internet has to potential to do significant damage to a business. Employers need to consider two related subjects: how to respond if defamatory or privacy-protected information about the organization is released on-line; and how to manage their own internet resources to avoid liability.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF APRIL 18, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
18 April 2008

New on our Blog this week:

- Court of Appeal: No Individual Liability for Wages or UCL

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF APRIL 11, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
11 April 2008

New on our Blog this week:

- Another Arbitration Agreement Invalidated
- CA Supreme Court Rules on California Family Rights Act Issues

POLITICAL ACTIVITY AT WORK: WHAT ARE THE LIMITS?
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
9 April 2008

Whether the subject matter is a large sporting event or upcoming presidential election, employees naturally bring their opinions, passions, loyalties and arguments into the workplace. As the November 2008 presidential election approaches, the candidates, the political parties, and the various media will continue to stir thought and debate among the nation’s voters, most of whom report to a job site.

STARBUCKS IN HOT WATER OVER TIPS
By D. Gregory Valenza
The Daily Journal
4 April 2008

Here is something to ponder as you enjoy your next beverage from Starbucks: How many venti, half-caf-half-soy-no-foam-latte-whips does it take to generate $87 million in tips over a seven-year period? It might take more than one refill for you to do that math. But wait, there's more. Consider that the recent and widely reported $100 million-plus award to about 100,000 Starbucks "baristas" compensates them only for a portion of the total tips customers paid (plus interest). That is, just a fraction of what must have been hundreds of millions in total tips wrongfully distributed to shift supervisors. The award, one of the largest reported employment law verdicts, is striking not only because of its sheer size, but also because it is based on optional "gratuities" that are paid by customers rather than the employer.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MARCH 28, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
28 March 2008

New on our Blog this week:

- Ninth Circuit Holds Applicant Drug Testing Policy Violates Fourth Amendment
- Resident Employees Paid Only For Time Worked
- Cease and Desist Letter Gets SLAPP Protection
- California Court of Appeal Upholds Rare Attorneys Fees Award Against Plaintiff

A NEW RULING ON “REVERSE DISCRIMINATION”
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
26 March 2008

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination based on a variety of protected criteria, including race. The law does not distinguish between races. Everyone is equally entitled to the law’s protection. At the same time, claims of race discrimination by white males are less common than by persons of other races. These claims are sometimes called “reverse discrimination” complaints. The California Court of Appeal recently examined one such case in Hicks v. KNTV Television, Inc. The decision should remind employers and employees that every employee is entitled to civil rights protections, not just those who belong to ”minority” groups.

COMMISSION AND BONUS PLANS: IS A DEAL A DEAL?
By D. Gregory Valenza
The Daily Journal
21 March 2008

Commissions and bonuses are forms of "wages" in California. The Labor Code imposes on employers a number of obligations regarding payment of wages. For example, wages must be paid within a specified time period after they are earned. Employees who quit or are terminated typically must be paid their final wages on their last day of employment or penalties may accrue. Wages must be included in the "regular rate" of pay, which is used to calculate overtime. They also must be detailed on the "wage statement" that is furnished employees with every paycheck.

NO INDIVIDUAL LIABILITY FOR RETALIATION UNDER THE FEHA
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
12 March 2008

The California Supreme Court continued a trend on Monday, March 3, 2008, when it held in Jones v. The Lodge at Torrey Pines that supervisors cannot be held individually liable for retaliation under California’s Fair Employment and Housing Act (FEHA). The Court has consistently shielded individual supervisors from various other forms of employment related claims. For example, the Supreme Court ruled in Reynolds v. Bement, a 2005decision, that individual corporate agents, including officers, directors, and shareholders, could not be personally liable for an employer’s failure to pay wages to its employees. Similarly, in 2000, the Court held in Carrisales v. Department of Corrections that individual, non-supervisory employees could not be held liable for harassment.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MARCH 7, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
7 March 2008

New on our Blog this week:

- Court of Appeal: $44 recovery; $500 in fees
- California Supreme Court: No Individual Liability for Retaliation Under FEHA
- U.S. Supreme Court: A Charge by Any Other Name... Is Still a Charge

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 29, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
29 February 2008

New on our Blog this week:

- U.S. Supreme Court Punts on "Me Too" Evidence in Discrimination Cases
- U.S. Supreme Court: ERISA Actions Against Fiduciaries
- U.S. Supremes: Arbitrate Claims Under Labor Commissioner's Jurisdiction
- NLRA Preempts California Wrongful Termination Claim

NEW PROPOSED REGULATIONS FOR THE FMLA
By Jennifer Brown Shaw
The Daily Recorder
26 February 2008

The federal Family and Medical Leave Act of 1993 has been around for about 15 years. The law provides eligible employees with up to 12 weeks of job-protected leave. The reasons for leave include their own or a covered relation’s “serious health condition,” or to care for a newborn or adopted child.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 22, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
22 February 2008

New on our Blog this week:

- U.S. Supreme Court: ERISA Actions Against Fiduciaries
- U.S. Supremes: Arbitrate Claims Under Labor Commissioner's Jurisdiction
- NLRA Preempts California Wrongful Termination Claim

ONE TOKE OVER THE LINE
By D. Gregory Valenza
The Daily Journal
15 February 2008

The California electorate approved Proposition 215, the Compassionate Use Act, in 1996. The initiative expressly protects certain users of marijuana for medical reasons from prosecution under two specific criminal laws. The initiative did not address a number of issues, however, including what happens when marijuana metabolites are revealed by a pre-employment drug test. Twelve years passed before the California Supreme Court weighed in on that question. In Ross v. RagingWire Telecomm. Inc., 2008 DJDAR 1217 (Cal. Jan. 24, 2008), the court held that Proposition 215 provides no employment law protection to medical-marijuana users. As a result, unless there is legislative action by the electorate or the Legislature, disability-discrimination and drug-testing laws are not affected by Proposition 215.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 15, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
15 February 2008

New on our Blog this week:

- U.S. DOL Proposes Revised FMLA Regulations
- Court of Appeal Holds "IT" Employee Is... Exempt

EXPANSION OF FMLA LEAVE FOR FAMILIES OF SERVICE MEMBERS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
13 February 2008

President Bush has signed the first amendment of the FMLA since Congress passed the original law in 1993. As initially drafted, the FMLA requires employers of more than 50 employees to approve unpaid leave for employees. The terms of FMLA leave include up to 12 weeks of time off for eligible employees to care for themselves or a family member’s serious health condition.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 8, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
8 February 2008

New on our Blog this week:

- California Supreme Court Takes Up "Stray Remarks"

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF FEBRUARY 1, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
1 February 2008

New on our Blog this week:

- FMLA Amendments Signed - Leave for Relatives of Military
- Court of Appeal: Stock Options OK Form of Payment
- Ninth Circuit: Cab Operators Were Employees, Not Independent Contractors
- February 1 Is OSHA Log Day!

LEDBETTER V. GOODYEAR: WHAT DOES IT STAND FOR AND WILL IT STAND?
By Carolyn G. Burnette and D. Gregory Valenza
Employment & Labor Relations Law - American Bar Association
1 February 2008

The United States Supreme Court’s opinion in Ledbetter v. The Goodyear Tire & Rubber Company, Inc. clarified when the limitations period for filing administrative charges with the Equal Employment Opportunity Commission (“EEOC”) regarding unequal pay claims begins to run. The Court held that where a discriminatory pay decision occurs, each subsequent paycheck does not constitute a new or continuing violation such that a claim is timely filed from the date any one of such payments is made. Rather, the initial discriminatory pay decision starts the clock ticking.

FREE SPEECH AND THE PRIVATE SECTOR WORKPLACE
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
30 January 2008

The right to freedom of speech is at the bedrock of our nation’s birth and its continued vitality. Like many of our rights as citizens of the United States, free speech is not absolute. Lawyers and courts wrestle with its limits regularly. The right to free speech often conflicts with other rights, such as the right to own private property, to be free from speech that is closely related to unlawful conduct, and others.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JANUARY 25, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
25 January 2008

New on our Blog this week:

- No Workers' Compensation Benefits for Mean Employee
- California Supreme Court: No Accommodation for Medical Marijuana

SHOULD PAY CARDS BE TREATED THE SAME AS PAYCHECKS?
By D. Gregory Valenza
The Daily Journal
18 January 2008

California's wage and hour laws are more detailed than any other state's. To facilitate education about the myriad requirements, the Legislature has included at least one substantial penalty for each failure to abide. So, employers must be cautious before deviating from the letter of the law.

EMPLOYEE TERMINATIONS: STEPS TO REDUCE LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
15 January 2008

Every supervisor dreads having to tell an employee, “You’re fired.” In fact, many employers secretly hope problem employees will “get the message” before these words have to be spoken. Employees naturally dread the news that their services are no longer required. In fact, there are studies suggesting that being fired is among the most traumatic events to occur in a lifetime.

PREVENTING UNION ACTIVITIES VIA COMPANY EMAIL GETS EASIER
By Jennifer Brown Shaw
The Daily Recorder
2 January 2008

Email communication has become common at the workplace during the last 10 years or so. It is a fast, cheap, discrete, and efficient way of distributing information about work-related matters. But these same characteristics make email an ideal method for employees to communicate among themselves regarding non-work matters, including union organizing activities.

UPDATED EMPLOYEE POLICIES FOR 2008
By Jennifer Brown Shaw
The Daily Recorder
18 December 2007

This time of year, everyone has a “to-do” list that is too long. Employers are no exception. In addition to replacing outdated workplace posters and pamphlets, implementing the new I-9 form, and ensuring employees receive notice of their right to claim the Earned Income Tax Credit, employers should tune up their handbooks for the new year.

DISABILITY AS A JUSTIFICATION FOR EMPLOYEES' MISCONDUCT?
By D. Gregory Valenza
The Daily Journal
7 December 2007

Anti-discrimination laws that prohibit disability discrimination - such as the Americans With Disabilities Act - are among the most difficult employment laws for employers to administer and for employment lawyers to litigate. The law prohibiting disability discrimination differs from most other anti-discrimination laws. The most obvious distinction is that treating employees consistently will defeat most discrimination claims based on race, sex and other protected criteria.

NEW LAWS FOR CALIFORNIA EMPLOYERS IN 2008
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
6 December 2007

With the New Year comes new legislation. This year, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a significant number of bills that would have significantly impacted employers, and signed a few with which employers will need to comply come January. In addition to the legislation the Governor signed this year, a few laws from past years become effective in 2008. The key laws are summarized below.

CALIFORNIA’S NEW LEAVE FOR MILITARY SPOUSES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
20 November 2007

On October 9, 2007, the Governor signed a bill allowing spouses of military personnel to take unpaid time off during the other spouse’s leave from deployment. California Military and Veterans Code section 395.10 was passed as “emergency legislation” and went into effect immediately. The stated intent of the new law is to “serve the families of those troops currently serving in military conflicts in Iraq and Afghanistan, and to assure that these families are able to spend time together during the qualified [spouse’s] leave from deployment.”

THE BREACH OF THE DUTY OF LOYALTY – WHAT EMPLOYERS CAN DO ABOUT IT
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
6 November 2007

A recent report called The Walker Loyalty Report for Loyalty in the Workplace, released in September 2007, noted more than 35% of employees are likely to leave an employer within the first two years of employment. Yet, employers’ investments in training, recruiting, and compensation continue to rise. Turnover is even more damaging when employees take clients, employees and trade secrets with them. Do employers have the legal right to expect their employees’ loyalty? And what can an employer do to protect itself from competitive conduct by employees during employment?

USING THE STATUTORY “OFFER TO COMPROMISE” TO OBTAIN FAVORABLE SETTLEMENTS
By D. Gregory Valenza
The Daily Journal
2 November 2007

Like all civil litigation, most employment law cases are resolved before trial. However, the plaintiff rarely just gives up.

EMPLOYEE ABUSE OF TECHNOLOGY THE EVER-CHANGING WORKPLACE CHALLENGE
By Carolyn G. Burnette
HR West
1 November 2007

Technology gone wild! Blogging, instant messages, text messages, e-mail, digital camera phones ... the list just keeps growing. With more employees using electronic communications devices, employers are constantly bombarded with new legal risks and efficiency challenges in their workplaces. Here are some tips on how to protect your organization from legal exposure and reduce the drain on resources.

REST BREAK AND MEAL PERIOD CLAIMS AFTER MURPHY V. KENNETH COLE PRODUCTIONS
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
23 October 2007

The California Supreme Court decided earlier this year, in Murphy v. Kenneth Cole Productions, that the one-hour premium employees receive for violation of meal break or rest period laws is a wage and not a penalty. Because the statute of limitations for unpaid wages is three years (or four years under an unfair competition theory), and the statute of limitations for penalties is only one year, Murphy means that multi-million class actions against state-wide employers are potentially three times more lucrative for plaintiffs and their lawyers. As a result, the plaintiffs’ bar continues enthusiastically to file class actions alleging violations of the meal and break laws.

OFFICE ROMANCES AND THE RISK OF LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
9 October 2007

A recent study revealed that at least seventy percent of employees will date someone at work at least once during their careers. In fact, nearly one-half of all married couples met each other in the workplace. In light of these statistics, employers cannot ignore the various issues that may arise when employees engage in romantic relationships with people they meet at work.

TITLE III OF THE ADA: COMPLIANCE AND LITIGATION STRATEGIES
By Jennifer Brown Shaw
The Daily Recorder
27 September 2007

It has been 17 years since the first President Bush signed into law the Americans with Disabilities Act (“ADA”). Congress’s intent in passing the ADA was to eliminate discrimination against millions of Americans with disabilities by establishing clear, consistent, and enforceable standards. The act was declared to be “the most sweeping piece of civil rights legislation possible in the history of our country, but certainly since the Civil War era.”

UNDERMINING ARBITRATION
By D. Gregory Valenza
The Daily Journal
21 September 2007

The California Supreme Court's Aug. 30 decision in Gentry v. Superior Court tightens the courts' reins on "pre-dispute" agreements to arbitrate employment law claims. A pre-dispute arbitration agreement, by definition, is one to which the parties agree before any dispute between them has arisen.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
5 September 2007

The California Supreme Court decided several significant employment law cases since our last summary in August 2006. The Court’s opinions address a number of topics, from employment at will to class actions. The Court also has accepted review of several decisions that could be blockbusters in the months to come. We summarize below the recently decided cases and those that remain pending.

IMMIGRATION ENFORCEMENT: MISMATCH/NO-MATCH LETTERS AND THE NEW SAFE HARBOR
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
28 August 2007

Although Congress came close to passing an immigration reform bill this term, there has been no substantive change to the immigration laws. Yet, the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement division (ICE) have increased enforcement of the existing law’s employment provisions. Thus, the former agency, the Immigration and Naturalization Service (INS), filed 25 complaints against employers for employing undocumented aliens in 2002, which was the INS’s last full year of existence. ICE filed 716 complaints in 2006. Some employers faced jail time for these criminal violations, including managers of employment services and the owner of a chain of donut shop franchises.

EMPLOYER-SPONSORED WELLNESS PROGRAMS AND EMPLOYMENT LAW
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
14 August 2007

A corporate “wellness” program focuses on promoting employees’ good health rather than curing poor health. It can take many forms, including subsidized health club memberships or smoking cessation programs, exercise groups organized by the employer, bonuses promoting healthier lifestyles, and flu shot programs. Some employers also are offering lower health care premium contribution rates to employees who lead healthier lifestyles. Employers who have or are considering introducing “wellness” programs to their employees should consider some of the obstacles to implementing such programs.

WAGE AND HOUR LAWS REDUX
By D. Gregory Valenza
The Daily Journal
10 August 2007

One thing is clear about California wage and hour laws: The rules governing law firms (and all businesses) in California are too numerous to be summarized in just one column. The first installment on this topic ran on July 27, 2007 and is available online at www.dailyjournal.com. In that piece, I discussed potential pitfalls, such as mis-classification of employees as independent contractors or "exempt" employees, minimum wage and overtime laws, independent contractor status, exemptions from overtime, payroll practices and deductions from paychecks. If those topics are not complex and confusing enough, there are many others applicable to California employees.

EMPLOYMENT LAWSUITS AGAINST INDIVIDUALS
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
31 July 2007

Plaintiffs in employment law cases frequently name individual employees as defendants. Sometimes, they sue co-workers. More frequently, they name supervisors or managers, and even high-level executives up to the CEO.

AVOIDING WAGE-AND-HOUR RISKS
By D. Gregory Valenza
The Daily Journal
27 July 2007

When Shakespeare wrote in Henry IV, "Uneasy lies the head that wears a crown," he could have been describing law firm managing partners. Client development and satisfaction, billable hours, expense control, office leases, hiring and retaining associates and staff, fierce competition, oh, and the practice of law, are just a few of the challenges facing the lawyer who accepts the responsibility of running a law firm or office.

UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2006-2007
By Jennifer Brown Shaw
The Daily Recorder
18 July 2007

The United States Supreme Court decided several significant employment law cases during the 2006 Term. The Court’s opinions address a number of topics, from the statute of limitations in cases alleging discriminatory pay practices, to the exempt status of home care aides under U.S. Department of Labor regulations. There presently are three important cases on the docket for next Term, summarized below. The Court may add more cases to the docket as the new Term approaches in October 2007).

FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2 July 2007

Last week’s free speech ruling from the U.S. Supreme Court in the “Bong Hits 4 Jesus” case reminds us that employers, like educational institutions, have the right to regulate speech in the workplace. Private sector employers are unrestricted by the First Amendment, which applies only to government action. But there are legal restrictions applicable to private employers as well. One such restriction that is often misunderstood by employers is single-language policies. Usually they’re English-only policies, but the same rules could apply to any employer’s policy limiting the language employees may speak on the job.

ENFORCING NON-COMPETE AGREEMENTS IN CALIFORNIA AFTER ADVANCED BIONICS V. MEDTRONIC
By D. Gregory Valenza
Bender's California Labor & Employment Bulletin
28 June 2007

Multi-state employers face myriad and sometimes inconsistent laws affecting their employment relationships with workers. The enforceability of restrictive covenants, such as covenants not to compete and non-solicitation agreements, is a prime example of how state laws may vary.

INDEPENDENT CONTRACTORS: A DYING BREED?
By D. Gregory Valenza
San Francisco Daily Journal
22 June 2007

The employer-employee relationship is fraught with legal obligations: workers’ compensation, complex wage and hour rules, paid and unpaid leaves of absence, payroll filings, sexual harassment training, benefits, etc. At times, employers may wish to engage temporary services without some of the entanglements associated with adding employees. Workers, too, may wish to avoid obligations such as tax withholding and exclusive employment relationships. For these and other reasons, employers and workers enter into “independent contractor” relationships.

WORKPLACE BULLYING AND THE FUTURE OF THE “EQUAL OPPORTUNITY HARASSER”
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
19 June 2007

Everyone is familiar with the “mean” boss: a chef who yells at the line cooks in the middle of a busy rush, a manager who becomes angry when a deadline is not met, and a boss who criticizes a poor performer in front of other workers. There historically has been a legal distinction between a “hostile working environment” and mere hostility at work. The courts have ruled that anti-discrimination laws are not a “civility code.” Judicial opinions frequently say the law does not guarantee a utopian working environment, free from stress and conflict.

WORKPLACE PROTECTIONS FOR "CAREGIVERS"
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
6 June 2007

It is no secret that employee demographics are rapidly changing. One statistic receiving both state and federal level attention is the increasing number of “caregivers” in the workplace.

CALIFORNIA EMPLOYMENT LAW PROTECTS EMPLOYEES UNAUTHORIZED TO WORK
By Jennifer Brown Shaw
The Daily Recorder
23 May 2007

As anyone paying attention to the news is aware, immigration is a politically charged and volatile issue. Employers as a result must sort through a morass of laws and regulations. There are specific laws and procedures applicable to the employment of non-citizens. It is illegal to employ and retain aliens who are unauthorized to work.

EMPLOYMENT INVESTIGATION ADVICE FROM THE GREAT DETECTIVE NOVELS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
8 May 2007

The development of employment law has given rise to a type of detective that Raymond Chandler probably did not anticipate: the workplace investigator.

EMPLOYERS MUST COMPLY WITH STATE LAWS ON MEAL BREAKS, REST PERIODS
By D. Gregory Valenza
San Francisco Daily Journal
4 May 2007

California employers must furnish employees with both rest periods, which are paid, and meal periods, which are not paid. These requirements first appeared in the Industrial Welfare Commission's Wage Orders in 1916. But in 2000, the Legislature imposed on employers significant financial consequences for failure to comply with rest and meal period laws.

WELL-INTENTIONED PRE-EMPLOYMENT INQUIRIES MAY RESULT IN ILLEGAL DISCRIMINATION
By Carolyn G. Burnette
Journal of Corporate Recruiting Leadership
1 May 2007

The basic premise of federal anti-discrimination laws is simple to articulate: to avoid liability, employers must not make any employment decisions that are based on illegal criteria such as race, sex, age, disability or religion. It is long recognized that a conscientious employer should make considered decisions that are based on legitimate business concerns. This basic rule also applies to pre-employment decisions regarding job applicants.

THE EVOLUTION OF CALIFORNIA LABOR CODE SECTION 132A
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
25 April 2007

The California Constitution mandates a form of workers’ compensation outside of the common law remedies available in civil lawsuits. The Legislature has implemented this public policy so the workers’ compensation system is the preferred means to remedy employees’ work-related injuries.

POTENTIAL LIABILITY FOR EMPLOYER-SPONSORED SOCIAL EVENTS
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
11 April 2007

In general, an employer may be liable for employee conduct at a social event (both negligent and intentional) whenever such conduct is “within the course and scope of employment.”

ALTERNATIVE WORKWEEKS
By D. Gregory Valenza and Matthew J. Norfleet
San Francisco Daily Journal
6 April 2007

The eight-hour workday is a founding principle of organized labor in the United States. The famous Haymarket Square riots in Chicago in 1886 resulted in the deaths of seven police officers when one of the attendees threw a bomb at the advancing riot squad. Although there was no evidence that union leaders threw the bomb or even knew of its existence, they were executed for inciting the riot by holding a rally for an eight-hour day...

"EXEMPT" STATUS UNDER CALIFORNIA LAW: AVOID THE PITFALLS"
By Jennifer Brown Shaw
The Daily Recorder
28 March 2007

In the past several years, California employers have struggled to understand which of their employees may be properly classified as “exempt” under California law. Those employees are “exempt” from minimum wage and overtime (and other compensation, such as reporting time and call back pay), and required to take rest breaks and meal periods. Part of the confusion stems from the fact that the requirements for exempt status under the federal Fair Labor Standards Act (FLSA) are different in many ways from the California requirements. While these differences are not new, the recent flood of class action litigation regarding which employees are properly due overtime necessarily has generated keen interest in compliance.

A NEW LOOK AT PAID LEAVE UNDER THE FAMILY AND MEDICAL LEAVE ACT
By Jennifer Brown Shaw
The Daily Recorder
14 March 2007

In a nutshell, the FMLA provides up to 12 weeks of job-protected leave to eligible employees. Eligible employees are those who have been employed for at least a year, have 1250 hours of service with the employer, and are employed at a worksite where 50 or more employees work within a 75-mile radius. The California Family Rights Act (“CFRA”) provides similar leave. In general, the laws are considered parallel. But there are significant exceptions, particularly with respect to the treatment of leave due to pregnancy disability.

A CHECKLIST FOR PREVENTING HUMAN RESOURCES PROBLEMS
By Jennifer Brown Shaw
The Daily Recorder
28 February 2007

Management concerned with employment law liability should be focused on prevention: preventing lawsuits, preventing employee morale problems, and preventing the day-to-day hassles personnel issues can create. The road to success in this area is not paved with good intentions, however. Employers must understand basic human resources principles to avoid the employment law pitfalls that await.

MILITARY PERSONNEL HAVE JOB PROTECTION RIGHTS WHEN CALLED TO DUTY
By Jennifer Brown Shaw
The Daily Recorder
13 February 2007

With the still unresolved political question of whether to “escalate” or “withdraw” from the Iraq war, America’s service men and women continue to be called away from their civil jobs to assist with the war effort. At least one source reports that, since September 11, 2001, approximately 550,000 reservists and members of the National Guard have been called to active duty. Of those, 475,000 have returned to the civilian work force.

EFFECTIVE EMPLOYEE TRAINING PROGRAMS: MONEY IN THE BANK
By Jennifer Brown Shaw
The Daily Recorder
30 January 2007

What can employers do to reduce their potential exposure for workplace related claims? Adopting and fairly administering lawful policies and procedures is a good start, of course. However, employers also must take the next step to train employees about what is expected of them and the options available for resolving workplace issues within the organization.

CAN EMPLOYEES WAIVE CLASS ACTIONS IN ARBITRATION AGREEMENTS?
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
18 January 2007

Employers understand employment litigation in court entails expense, delay, and uncertainty. Seeking to avoid a jury’s evaluation of workplace decisions, some employers have turned to alternative dispute resolution programs (called “ADR”). ADR can involve internal complaint procedures, mediation, and arbitration. In principle, both employers and employees can benefit from the faster and less formal procedures associated with ADR.

PRE-EMPLOYMENT TESTING CHALLENGED UNDER ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw
The Daily Recorder
3 January 2007

Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.

EMPLOYERS GAIN IMMUNITY FROM EMPLOYEES' MISUSE OF COMPANY'S INTERNET ACCESS
By Jennifer Brown Shaw
The Daily Recorder
19 December 2006

Advances in technology, particularly the Internet, continue to influence employment law. The new ways in which employees obtain information and communicate with others have revolutionized the workplace.

HOLIDAY BONUSES AND EMPLOYMENT LAWS
By Jennifer Brown Shaw and Matt Norfleet
The Daily Recorder
5 December 2006

As the end of the year approaches, many employees are anticipating bonuses. Some may be based on the employer’s financial performance. Others may be based on the workers’ job performance. Some are purely recognition of the end of the year or the holidays.

ATTENTION ALL COMMUTERS — SAN FRANCISCO GIVES PAID SICK LEAVE TO ALL EMPLOYEES
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
24 November 2006

If you are one of many Sacramento area residents who commute to San Francisco to work, or you are in the process of weighing the pros (more money!) and cons (REALLY long days) of commuting to “The City,” the San Francisco electorate just provided one big item to add to the “plus side” of the equation.

VACATION PAY IN CALIFORNIA: DO YOU WANT TO GET AWAY?
By Jennifer Brown Shaw
The Daily Recorder
7 November 2006

California wage and hour law differs from laws in other states in a number of respects. The law regarding vacation is one such example. The California Court of Appeal in Church v. Jamison recently decided the statute of limitations for vacation claims in a way that increases employers’ potential liability. Employers therefore should review California’s rules regarding this highly prized employee benefit.

ARE OVERWEIGHT EMPLOYEES PROTECTED FROM DISCRIMINATION?
By Jennifer Brown Shaw
The Daily Recorder
27 October 2006

Most employers are aware of their obligations to prevent discrimination and harassment, and to offer reasonable accommodation to employees with disabilities and religious practices. An increasing number of Americans are overweight by medical standards, and the media have emphasized the health risks of obesity in recent times. Employers therefore may have questions about whether obesity is protected by the anti-discrimination laws.

NEW CALIFORNIA EMPLOYMENT LAWS FOR 2007
By Jennifer Brown Shaw
The Daily Recorder
11 October 2006

Every year the California Legislature passes and presents hundreds of bills to the Governor. This year was no exception. The Governor signed a number of bills that will affect California employers, which are summarized below. Unless otherwise specified, these laws take effect on January 1, 2007.

CALIFORNIA COURT STRIKES DOWN MORE NON-COMPETE PROVISIONS
By Jennifer Brown Shaw
The Daily Recorder
25 September 2006

Employers in many states use “restrictive covenants,” such as non-compete or non-solicitation agreements, to deter employees from changing jobs. Purchasers of businesses also rely on these agreements. These agreements usually are made to protect trade secrets, such as customer lists, or other proprietary information. Most states’ laws limit these agreements to one extent or another. With just a few narrow exceptions, however, non-compete agreements are per se illegal in California. Two recent decisions by the California Court of Appeal exemplify California law in this area.

AVOIDING LITIGATION OVER RELEASES OF EMPLOYMENT CLAIMS
By Jennifer Brown Shaw
The Daily Recorder
15 September 2006

Employers have several reasons for entering into settlement or separation agreements with employees. A release is used when an employee has filed a formal action against an employer and both sides decide to resolve the matter pre-trial. An employer may wish to resolve all differences with an employee before a dispute is filed in court. Employers and employees also use separation agreements in the context of layoffs, when severance pay is often exchanged for the employee’s promise not to sue.

CALIFORNIA EMPLOYERS’ OBLIGATIONS WHEN EMPLOYMENT IS TERMINATED
By Jennifer Brown Shaw
The Daily Recorder
5 September 2006

The California Labor Code requires employers to pay employees’ final wages on the day an employee is fired (and on the day she quits if she gives more than 72 hours’ notice). The California Supreme Court recently decided that this rule applies even when the employee is hired to perform a short assignment of just one day.

CALIFORNIA SUPREME COURT SAYS "AT WILL" MEANS "AT WILL"
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
15 August 2006

In Dore v. Arnold Worldwide, Inc., the California Supreme Court was asked to determine whether “at will” employment really means “at will” employment. Most of us who work in California have known for a long time that “at will” means the employment relationship can be ended by the employer or the employee for any reason, at any time. In fact, the Legislature codified this concept in Labor Code section 2922, which provides that California employees are presumed to be at will. Despite these truisms, the employee in Dore attempted to wordsmith his employer’s at-will language — and it almost worked.

UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2005-2006
By Jennifer Brown Shaw
The Daily Recorder
9 August 2006

The United States Supreme Court decided several significant employment law cases in the last term. The Court’s opinions address a number of topics, from retaliation to proof of race discrimination to wage and hour violations, and include decisions applicable to public and private sector employers.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2005 - 2006
By Jennifer Brown Shaw
The Daily Recorder
17 July 2006

The California Supreme Court decided several significant employment law cases since our last summary. The Court’s opinions address a number of topics, from sexual harassment to wage and hour violations, and include decisions applicable to public and private sector employers. Several important employment law cases remain on the Supreme Court’s docket. We summarize below the recently decided cases and those that remain pending.

THE U.S. SUPREME COURT EXPANDS TITLE VII RETALIATION CLAIMS
By Jennifer Brown Shaw
The Daily Recorder
7 July 2006

In Burlington Northern and Santa Fe Railway Company v. White, the United States expanded the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. While retaliation claims brought under the less restrictive standards of California’s Fair Employment and Housing Act (“FEHA”) will not immediately be affected by the new Title VII rules, a question now lingers as to whether state law will be revisited.

ONE OPTION FOR REDUCING OVERTIME LIABILITY: THE ADOPTION OF ALTERNATIVE WORKWEEK SCHEDULES
By Jennifer Brown Shaw
The Daily Recorder
1 July 2006

Ever since the California Legislature implemented the “daily overtime” law several years ago, which generally requires the payment of overtime if an employee works more than eight hours in a workday, employers have looked for ways to reduce their overtime liability.

CALIFORNIA’S MEAL AND REST PERIOD RULES: THE DEBATE RAGES ON
By Jennifer Brown Shaw
The Daily Recorder
30 June 2006

As many employers have learned recently, California Labor Code section 226.7(b) requires non-exempt employees to be paid one hour’s pay at their regular rate for each workday they are not provided a meal or rest period that complies with the requirements of the applicable Industrial Welfare Commission (“IWC”) wage order.

EVALUATING EMPLOYEE PERFORMANCE: TIPS AND PITFALLS
By Jennifer Brown Shaw
The Daily Recorder
25 June 2006

Many employers evaluate their employees’ performance at some point during the employment relationship, such as annually or at the conclusion of an introductory period. Often, however, these employers conduct performance reviews as a matter of course without knowing why it is important to do so. Some supervisors and managers also are unaware of legal issues associated with conducting performance evaluations thoroughly and accurately.

PROVIDING EMPLOYMENT JOB REFERENCES: NOT AS RISKY AS IT SOUNDS
By Jennifer Brown Shaw
The Daily Recorder
20 June 2006

Many employers hesitate to provide job references because they fear liability. Of course, a negative employment reference could give rise to many different types of claims, including defamation, interference with prospective advantage, blacklisting under Labor Code section 1050, or even retaliation.

“LIGHT DUTY” AND THE REASONABLE ACCOMMODATION PROCESS
By Jennifer Brown Shaw
The Daily Recorder
15 June 2006

A California Court of Appeal recently concluded employers are not required to make temporary light-duty positions permanent as an accommodation under California’s Fair Employment and Housing Act (“FEHA”). The court’s decision in Raine v. City of Burbank provides clarification on this important question, and highlights issues employers should consider in deciding whether and how to administer light-duty programs. Here’s the good news: light duty, handled appropriately, may provide benefits to both employers and employees.

EXEMPT EMPLOYESS AND PARTIAL-DAY ABSENCES
By Jennifer Brown Shaw
The Daily Recorder
10 June 2006

For the past several years, the California Division of Labor Standards Enforcement (DLSE) has taken the position that employers may not deduct partial-day absences from exempt employees’ accrued vacation leave banks. Recently, however, the First District Court of Appeal ruled in Conley v. Pacific Gas & Electric Co. that such deductions are lawful in certain circumstances.

RULES REGARDING REIMBURSEMENT OF EMPLOYEES' EXPENSES
By Jennifer Brown Shaw
The Daily Recorder
5 June 2006

Under California law, employees must be fairly compensated when they use their own money or equipment at work. The Legislature’s intent is that employees should not bear losses or expenses incurred in the service of their employers. There are a number of laws and regulations that require employers to reimburse expenses employees incur and to pay for employees’ use of their own property.

WHO IS AN “EMPLOYEE” UNDER THE ADA AND THE ADEA?
By Jennifer Brown Shaw and Becki Graham
HR California Extra

Employment laws generally only protect “employees.” So, who is considered an “employee”? The Ninth Circuit Court of Appeals recently held that directors and producers of a cable company were not “employees” under the federal Age Discrimination in Employment Act (ADEA) or the Americans with Disabilities Act (ADA). An employer is only subject to liability under these federal statutes if it has a requisite number of employees. In Fichman v. Media Center, Mr. Fichman argued that the show’s directors and producers should have been treated as employees for purposes of subjecting the company to his claims under the ADA and ADEA.