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CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2009-2010
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-08-25

The California Supreme Court decided significant employment law cases since our last review in 2009. The Court’s opinions address a number of topics of interest to employers: wage and hour law, harassment, arbitration agreements, attorney-client privilege, and the significance of “stray remarks.” However, the Court also left many issues for lawyers to wrangle with in the future. We summarize below the recently decided cases.

WHEN MOTHERS RETURN TO WORK
By Jennifer Brown Shaw and Alexander M. Sperry
California Employer Update
2010-08-20

Employees returning to work after pregnancy or adopting a child face complex challenges. The elusive “work-life balance” is difficult to achieve, and circumstances can create the need for additional time off and other issues. We discussed workplace laws protecting pregnant employees in a previous article. Here, we focus on employers’ post-pregnancy obligations.

GOOGLE COMES OF AGE
By D. Gregory Valenza
The Daily Recorder
2010-08-16

All employment lawyers know winning summary judgment in an employment case is not easy. Judges understandably are reluctant to deprive plaintiffs of their day in court. The summary judgment standards afford ample opportunities for plaintiffs to identify triable issues of fact. Appellate review is de novo, permitting appellate courts to freely second-guess trial judges' conclusions.

RETAINING EMPLOYEES ACCUSED OF HARASSMENT
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-08-10

With the passage of Assembly Bill 1825, the law that requires many California employers to provide sexual harassment training to supervisors, today’s employers are better informed about how to prevent, recognize, and respond to inappropriate workplace conduct than ever before. But even when an employer follows best practices designed to eliminate workplace harassment, the process will not be perfect. Employees and others in the workplace will continue to engage in conduct contrary to an employer’s specific direction and policies.

WORKPLACE PRIVACY AND TEXT MESSAGES: QUON V. ARCH WIRELESS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-07-27

With motorcycle gangs, a love triangle, and text messages that were, “to say the least, sexually explicit in nature,” in the words of the district court, Quon v. Arch Wireless, Inc. reads more like a cable television police drama than a typical United States Supreme Court decision. The case received significant press not only because of the salacious facts, but also because many expected the Court to determine the scope of workplace privacy in text messages and other electronic communications.

WORKPLACE HARASSMENT AND THE FIRST AMENDMENT
By D. Gregory Valenza
The Daily Journal
2010-07-14

A client asks what to do about an employee who is sending out global emails to the entire workforce, which contain rants against workplace diversity, cultures other than European, etc. The employee maintains he has a right under the First Amendment to issue such emails. But the other employees are offended and registering complaints under the "zero tolerance" harassment policy.

OPENING THE DOOR TO NEW “FAMILY”
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-07-13

The federal Family and Medical Leave Act (FMLA) causes confusion and consternation for many employers. This is understandable, considering the recent changes to the FMLA regulations and the current administration’s efforts to expand FMLA coverage. The fact is, while most employers accept their legal obligation to provide FMLA benefits to eligible employees, they often are frustrated by (1) the complexity involved in navigating and administering an FMLA leave; and (2) the relative ease with which employees abuse the law. Given the numerous regulations, statutory provisions and case law, a veritable minefield awaits even the most experienced leave administrators.

SOCIAL NETWORKING: A TRAP FOR THE UNWARY
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-06-30

We live in a world dominated by the Internet, and increasingly, social networking sites like Facebook, MySpace, LinkedIn and Twitter. According to its most recently published statistics, Facebook now has over 400 million active users, half of whom sign on daily to check their accounts. These users include many employees who communicate with Facebook “friends” and Twitter “followers” (and likely work colleagues) while sitting in their office, from their mobile devices while on the road, and from their homes. Now more than ever, employers, too, find themselves turning to these online resources as a tool to disseminate corporate information, attract and evaluate candidates for employment, and, in some instances, monitor employees’ behavior.

EMPLOYMENT TESTING AND UNINTENTIONAL DISCRIMINATION CLAIMS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-06-15

For the second time in a year, the United States Supreme Court has ruled on whether civil service tests given to firefighters are discriminatory. Although the two opinions arise in the contexts of big city fire departments, they are significant for all employers who rely on standardized testing in the hiring process.

MIS-FIRING FOR MISCONDUCT
By D. Gregory Valenza
The Daily Journal
2010-06-10

A client seeking advice about firing an employee who curses, throws things, or even makes threats of bodily harm expects a green light. A competent employment lawyer usually may oblige without significant risk. Usually.

NO UNION, NO PROBLEM?
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-06-03

Employers that operate without a union probably do not devote much time or resources to compliance with the National Labor Relations Act (NLRA or Act). There are, after all, many other employment laws to worry about.

ENFORCEABILITY OF ARBITRATION AGREEMENTS IN FLUX
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-05-18

Although it has been around since at least the 1600’s, arbitration has grabbed headlines recently. Debate over arbitration is nothing new. In 1925, Congress enacted the Federal Arbitration Act (“FAA”) “[t]o overcome judicial resistance to arbitration,” and to declare “‘a national policy favoring arbitration’ of claims that parties contract to settle in that manner.” Under the FAA, all arbitration agreements in contracts “involving commerce” are “valid, irrevocable, and enforceable.”

WHAT'S IN YOUR WALLET, JOB APPLICANT?
By D. Gregory Valenza, Esq.
The Daily Journal
2010-05-13

Recent economic data suggest the job market is thawing. With high unemployment persisting, many employers will have several candidates applying for each new job opening.

UNPAID INTERNSHIPS AND WAGE-HOUR LAW
By D. Gregory Valenza
The Daily Recorder
2010-05-05

The unpaid internship dates back to times when there were no minimum wage or overtime laws. Apprentices would work for a carpenter or silversmith, perhaps for free or maybe room and board. There were no vocational schools. All training was “on the job.”

HEALTHCARE REFORM PASSED, SO WHAT’S NEXT?
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-04-21

The recent passage of the Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education Reconciliation Act (“HCERA”) is old news for just about anyone. No matter what people may think about healthcare reform, virtually all are now left asking one question: What is next?

RECENT DEVELOPMENTS FROM THE CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-04-07

Although wage and hour litigation continues to keep California courts busy, employers receive much day-to-day guidance about administration of wage and hour issues not from court decisions, but from the Department of Labor Standards Enforcement (DLSE). This agency, part of the Department of Industrial Relations, enforces wage and hour requirements in the state. As part of this duty, the DLSE occasionally issues opinion letters interpreting provisions of California wage and hour law. These opinions are not binding on the courts, but are very instructive as to how the DLSE will rule on particular issues. In the past several months, the DLSE issued a number of important opinion letters, each of which is summarized below.

SLAPPING THE BOSS
By D. Gregory Valenza
The Daily Journal
2010-04-07

There are a number of ways employers can raise a former employee's ire. These include contesting an unemployment claim or reporting the former employee to a licensing agency. Sometimes ex-employees retaliate with litigation they would not have filed were it not for the employer's action. The ex-worker's claim may involve significant potential liability and defense costs, possibly motivating the employer to settle or dismiss the initial action.

OUTSOURCING HIRING
By Jennifer Brown Shaw and Geoffrey M. Hash
California Employer Update
2010-04-01

Outsourcing is “in.” Employers increasingly rely on third parties for human resources tasks such as payroll, benefits and leave administration.

Some employers even outsource recruiting. Using vendors to handle these critical administrative tasks allows employers to take advantage of the vendors’ subject matter expertise and economies of scale. The employer may pay a premium for these services, but can focus on its core business.

ALTERNATIVES TO EMPLOYEE NON-COMPETITION AGREEMENTS IN CALIFORNIA
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-03-29

Several recent court decisions have effectively eliminated the lawful use of non-compete and non-solicitation agreements in California except in certain limited circumstances. Those decisions recognize that California law favors open competition and freedom for employees to move from employer to employer. However, this does not mean employers must accept the risk of employees taking their valuable information and resources to the competition.

DRIVING FOR DOLLARS
By D. Gregory Valenza
Daily Journal
2010-03-09

The daily commute would be more pleasant if workers were paid for their time. The only thing that could make listening to music, talking on the phone, and sipping a hot beverage while driving more fun would be wages accruing with each lurch forward. Traffic jams, the risk of accidents, and insufferably bad driving no doubt would be less frustrating, too.

GETTING TO KNOW “GINA”
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2010-03-09

There’s a new kid on the block in the anti-discrimination arena, and her name is GINA. Employers should already be familiar with long-standing federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”), which prohibit employment decisions made on account of applicants’ and employees’ race, color, national original, religion, gender, age and disability. GINA, the Genetic Information Nondiscrimination Act of 2008, now extends these same protections to the “protected category” of genetic information.

EFFECTIVE ANTI-HARASSMENT TRAINING
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2010-02-23

Benjamin Franklin’s declaration that “an ounce of prevention is worth a pound of cure” rings true today as it did in the 1700’s. In the workplace context, for example, anti-harassment and discrimination training (i.e., “EEO” training) is the “ounce of prevention” that helps prevent unlawful discrimination, harassment and retaliation claims. Even employers who do not believe in Franklin’s idiom may be required to heed it.

MIXED MOTIVES IN FEHA CASES
By D. Gregory Valenza
The Daily Journal
2010-02-10

The plaintiff in an employment discrimination case must establish a link between the plaintiff's protected classification (e.g., race, sex, etc.) and adverse action (e.g., discharge, demotion, etc.). The opinions construing the Fair Employment and Housing Act say the plaintiff merely must show that unlawful discrimination was "a motivating factor" behind the allegedly discriminatory decision. The burden is not onerous. "A motivating factor" means illegal discrimination was just one reason behind the decision, even if other motivating reasons were perfectly legal.

EMPLOYER DRUG TESTING IN CALIFORNIA
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-02-09

Former Major League Baseball player Mark McGwire’s recent admission that he used steroids throughout his career came as no surprise in a profession plagued by similar problems. While McGwire ostensibly used the drugs to enhance his performance, employers generally fear a decrease in performance when their employees use illegal drugs.

CALIFORNIA SUPREME COURT REINFORCES ATTORNEY CLIENT PRIVILEGE
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2010-02-02

The attorney-client privilege protects certain confidential communications between lawyers and their clients. But the privilege does not apply to every conversation between a lawyer and a company's employees. In Costco Wholesale Corp. v. Superior Court, the state Supreme Court explained how the attorney-client privilege applies to California employers seeking advice from their lawyers.

PREGNANT PAUSE
By D. Gregory Valenza
The Daily Journal
2010-01-13

Employees disabled by pregnancy are entitled to certain protections and benefits. The law in this area is not a model of clarity. To celebrate my law partner Jennifer Shaw's new baby, let us review California employment laws regarding pregnancy disability leave. (True, as a partner rather than an employee, Jennifer is entitled to virtually none of those rights. But as a fantastic rainmaker, lawyer, and person, she will probably be ok.)

UNDERSTANDING REASONABLE ACCOMMODATION
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2010-01-12

To help prevent discrimination against employees with disabilities, both the federal Americans with Disabilities Act and the California Fair Employment and Housing Act require employers to provide an employee with a disability “reasonable accommodation.” This term means a modification or adjustment to the workplace that enables the employee to perform the essential functions (i.e., the primary duties) of the job.

EMPLOYMENT LAW ON THE MENU
By Jennifer Brown Shaw and Geoffrey M. Hash
The Daily Recorder
2009-12-29

Whether it is menu planning, budgeting, negotiating leases or franchise agreements, monitoring the internet for the latest customer reviews, or getting food prepared and to the table, restaurateurs are pulled in many directions every day. With such diverse and unrelenting pressures, it is easy to overlook compliance with the many employment laws governing the workplace. Many restaurants are small employers, without the resources to employ human resources management. It is left to the chef, general manager, or owner to know the law and apply it correctly.

CALIFORNIA SUPREME COURT RULES ON HARASSMENT AND PUNITIVE DAMAGES ISSUES
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-12-15

The state Supreme Court ruled on two thorny issues facing employers last month in Roby v. McKesson Corporation. The case addressed an important distinction between what is unlawful harassment and discrimination under state law, overlapping damages, and the constitutional limits of punitive damages. The Court’s opinion provided new authority on two of the issues, harassment and punitive damages.

WALKING THE LINE: USING NON-SOLICITATION AGREEMENTS
By D. Gregory Valenza
The Daily Journal
2009-12-10

In Employment Law 101, we learn California's public policy favors free and open competition for employees' talent. Business and Professions Code Section 16600, concisely provides: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

EMPLOYEE HANDBOOKS: OUT WITH THE OLD, IN WITH THE NEW
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-12-02

Every employment lawyer has had the experience of asking a client for a copy of her employee handbook, only to be given an old, coffee-ring stained document, cobbled together in different typefaces, only partially contained in a three-ring binder.

SUPREME COURT UPHOLDS INCENTIVE FORFEITURE
By Jennifer Brown Shaw and Alexander M. Sperry
The Daily Recorder
2009-11-17

When it comes to properly paying employees, California law presents a minefield for the unwary employer. For example, wages must be paid in cash or in a form “negotiable and payable in cash” (e.g.., by check), without discount, 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 significant penalties may accrue. Once earned, wages cannot be forfeited, and it is illegal for an employer to recoup or collect from employees any part of wages already paid. Private agreements circumventing these rules are strictly prohibited.

WORKING AROUND THE CLOCK
By D. Gregory Valenza
The Daily Journal
2009-11-12

Some people leave their jobs at the end of the day and do not even think about work until the next shift begins. Then, there is the rest of us. California's wage and hour laws are tricky, even as applied to workers on a traditional 9-5 schedule. The rules that apply to commuting, working at home, on-call time, and other incidental work performed during what is otherwise "free" time, vex even the wonkiest of employment lawyers.

EVALUATING PERFORMANCE BASED ON SUBJECTIVE CRITERIA
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-11-03

Performance evaluations and performance improvement forms, such as warnings, receive more scrutiny during employment litigation than during employment. When the employment relationship has decayed to the point that a lawsuit occurs, employment lawyers scour annual reviews, disciplinary records, and contemporaneous supervisors’ notes for evidence.

TOP 10 WAYS TO DEAL WITH WORKPLACE ROMANCES
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-10-21

The recent spotlight on David Letterman’s alleged affairs with female subordinates is a useful reminder for careful employers: create a systematic plan for dealing with workplace harassment and romantic relationships. And then follow it.

EMPLOYERS BY THE BAY
By D. Gregory Valenza
The Daily Journal
2009-10-15

Employers looking to gain a foothold in San Francisco should carefully survey the terrain. San Francisco businesses are subject to local employment ordinances in addition to the many federal and state requirements. Even small businesses must comply with the host of mandates that do not apply outside the county borders. Here are the principal San Francisco ordinances that generally govern private-sector employers. Employers in specific industries may be subject to additional or different requirements.

EEOC’S PROPOSED ADAAA REGULATIONS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-10-06

The Americans With Disabilities Act’s (“ADA”) employment provisions became operative in 1992. Since then, the Equal Employment Opportunity Commission (“EEOC”) has issued hundreds of pages of regulations, technical assistance, and whitepapers. The courts have issued countless opinions interpreting the act. And employers, consultants, and doctors have implemented policies and protocols for dealing with applicants’ and employees’ requests for reasonable accommodation.

PUNITIVE DAMAGES AND CALIFORNIA EMPLOYMENT LAW
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-09-22

California law authorizes punitive damages to punish and discourage “oppression, fraud, or malice.” Courts have explained that punitive damages are “an expression of moral condemnation” for conduct done with “willful and conscious disregard of the rights or safety of others” or “despicable” conduct.

NEW RULES REGARDING NON-SOLICITATION AGREEMENTS IN CALIFORNIA
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-09-15

When employees with access to key company information and knowledge about company practices leave to work for competitors, employers are naturally concerned about protecting themselves. One way employers try to do this is through various types of agreements with employees designed to limit their ability to use confidential information and “trade secrets.”

AN UNEVEN PLAYING FIELD
By D. Gregory Valenza
The Daily Journal
2009-09-11

The Fair Employment and Housing Act (FEHA) includes a simple provision awarding attorney's fees: "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees . . . ." Govt. Code § 12965(b). The statute's text does not distinguish between employees and employers. However, the courts do not treat employers' and employees' fee requests the same.

SARBANES-OXLEY’S WHISTLEBLOWER PROTECTION EXPLAINED
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-08-25

Sarbanes-Oxley Act of 2002 (“SOX”) is a federal law. Congress passed it on July 30, 2002, in response to a number of major corporate and accounting scandals. SOX, among other things, created whistleblower protection for any employee who reports that a publicly-traded company subject to SEC regulations has engaged in any of a number of fraudulent activities.

TAKING MANAGEMENT PERSONALLY
By D. Gregory Valenza
The Daily Journal
2009-08-14

Managers generally may do their jobs without fear of personal liability for employees' claims under California law. But a recent Ninth Circuit decision is a reminder to managers that they may not be entirely immune to claims for unpaid wages.

SOMEONE TO WATCH OVER EMPLOYEES
By Jennifer Brown Shaw and Becki Graham
The Daily Recorder
2009-08-12

Employers have salutary reasons to monitor employees’ work areas and employee conduct. For example, employers must attempt to prevent misconduct such as harassment before it occurs. Employers also are legally responsible to provide a safe work place. Laws and regulations have increased potential liability for workplace conduct. In the past, the work area typically was visible and tangible. Now, employees frequently interact in cyberspace, or over computer systems, rather than on an easily watched “shop floor.”

VACATION AND LITIGATION
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-07-30

With summer in full swing, many employees are taking vacations with their families. Meanwhile, Human Resources managers are checking leave balances. As the Court of Appeal recently reiterated in the case of Owen v. Macy’s, the law does not require that an employer provide its employees with any paid vacation. Any right to vacation benefits must come from the employer’s policies, an employment contract, or a collective bargaining agreement.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS: 2008-2009 TERM
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-07-14

Every year, the California Supreme Court decides cases that affect the workplace. Here are some of the most important employment law opinions since our last update in July 2008.

'RICCI' AND A HARD PLACE
By D. Gregory Valenza
The Daily Journal
2009-07-10

When is it lawful under anti-discrimination laws for an employer to intentionally discriminate against members of one protected class, to avoid a disparate impact claim by individuals in another protected group? The U.S. Supreme Court addressed that question in Ricci v. DeStefano, 2009 DJDAR 9567 (June 29, 2009). The court's decision explains the interplay between two branches of anti-discrimination laws: disparate treatment and disparate impact.

UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2008-2009
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-07-08

The United States Supreme Court decided several significant employment law cases during the 2008 Term. The Court’s opinions addressed the validity of service fees charged by unions to nonmembers, the scope of Title VII’s anti-retaliation protections, spousal rights under ERISA benefit plans, waivers of Age Discrimination in Employment Act (ADEA) claims in collective bargaining agreements, retroactivity of the Pregnancy Discrimination Act (PDA), and an employee’s burden to prove age discrimination under the ADEA even when evidence exists that age was a motivating factor in the employer’s decision. There currently is one case on the docket for next Term, summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2009).

PUBLIC ENTITIES ARE EXEMPT FROM CERTAIN PROVISIONS OF CALIFORNIA’S LABOR CODE
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-06-16

An on-going debate regarding whether certain provisions of California’s Labor Code apply to public entities may be a bit closer to resolution. The Labor Code clearly applies to private employers. In some areas, however, it is silent as to its application to public employers. Fortunately, the California Court of Appeal recently shed some light on this issue. In Johnson v. Arvin-Edison Water Storage District, the Court held that California’s Labor Code provisions governing daily overtime, meal periods, and payment of wages upon separation of employment do not apply to water storage districts.

AT WILL AT WORK
By D. Gregory Valenza
The Daily Journal
2009-06-12

In California, Labor Code Section 2922 recognizes employees and employers presumptively may end their relationship "at will." Now and then, someone writes an article or introduces legislation proposing the end of employment at will. The advocates have their reasons (e.g., at-will employment is anachronistic, meaningless because of the numerous exceptions, unfair etc.). They are wrong. At-will employment remains a legally significant principle, even with the many exceptions the courts and legislature have applied to it.

“ME TOO” EVIDENCE IN DISCRIMINATION CASES
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-06-04

The California Court of Appeal’s recent decision in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties may change the way courts rule on evidence in discrimination cases. The court found admissible as proof of discrimination other employees’ testimony about discrimination against them. Such “me too” evidence therefore may be admissible to bootstrap the plaintiff’s own claim.

THE “WORK SHARING” PROGRAM: AN ALTERNATIVE TO LAYOFFS
By Jennifer Brown Shaw and Alayna Schroeder
The Daily Recorder
2009-05-21

Employers facing tough economic times are sensitive to the impact layoffs have on their employees. To avoid eliminating jobs, some employers look for other cost-cutting measures that distribute the financial burden across the workforce. One option for employers serious about cutting payroll costs is to reduce work hours for non-exempt employees.

VIRAL MANAGING
By D. Gregory Valenza
The Daily Journal
2009-05-08

Employers are struggling to make ends meet under difficult economic conditions. They have reduced their workforces so that the remaining employees must do more with less help. The last thing we need is a flu outbreak.

WHEN ARE ARBITRATION AGREEMENTS ENFORCEABLE?: WHEN IN “ROMAN”
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-05-07

Federal and state legislation establish a public policy encouraging the use of arbitration agreements to resolve disputes. However, many employers have seen their agreements invalidated since the California Supreme Court‘s 2000 decision in Armendariz v. Foundation Health Psychcare, Inc. In that case, the Court imposed several procedural requirements for employment arbitration agreements. Recent appellate decisions have relied on those requirements to refuse to enforce employer’s existing arbitration agreements.

TIP POOLING: A NEW WAGE AND HOUR ISSUE TO BE EXPLOITED?
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-04-23

Maybe like your morning, the controversy over tip pooling perked up over a cup of coffee. A little over a year ago, a court awarded over $85 million dollars to Starbucks “baristas,” finding a Starbucks tip pooling policy allowed shift supervisors to unlawfully share in the pooled tips. While many employers may be familiar with other wage and hour issues, such as overtime and meal and rest breaks, tip pooling is one of those issues that has gone undisturbed for many years. Now that the sleeping giant is awake, employers in applicable industries should become fully aware of the current rules in California governing tip pooling.

OVEREXPOSED EMPLOYEES
By D. Gregory Valenza
Daily Journal
2009-04-17

First, there were blogs. Then came Web 2.0 or "social networking." Once reserved for teenagers and geeks, websites like Facebook, Myspace, LinkedIn, Twitter, Yelp, and others have gained mainstream popularity. Among other things, these websites permit users to create personal areas where they keep online diaries; share intimate or mundane details about their lives; post pictures and to public bulletin boards; and "link" to online groups and friends. Businesses, celebrities, and ordinary citizens alike openly invite the public to "friend" or "follow" them and interact online.

INVESTIGATIONS OF GOVERNMENT EMPLOYEES RULED CONSTITUTIONAL
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2009-04-08

Like all employers, public-sector employers (such as government agencies) conduct internal investigations concerning a variety of issues. Some investigations are occasioned by claims of unfair treatment. Others result from possible unlawful activity in the workplace.

CONDUCTING BACKGROUND CHECKS IN CALIFORNIA
By Jennifer Brown Shaw and Becki D. Graham
SHRM Legal Report
2009-04-01

Hiring employees can be costly. Between the expenses of advertising, employment agencies and lost productivity associated with recruiting, it pays to select employees as efficiently as possible.

CHINDARAH V. PICK UP STIX, INC.: A BONA FIDE VICTORY FOR EMPLOYERS
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
2009-03-24

California law prohibits employees from waiving or releasing their rights to minimum wages, overtime, and other minimum protections. For example, Labor Code section 1194 prohibits agreements by employees to work for less than minimum wage or without receiving overtime. Section 206.5 prohibits releases of wages concededly due. Section 2804 prohibits an employee from waiving the right to indemnification under Labor Code section 2802 for expenses incurred in the scope of employment. Section 5001 bars the release of an employee’s claim for workers’ compensation benefits unless approved by the Workers’ Compensation Appeals Board.

WHEN LAYING OFF WORKERS, BEING GENTLE COULD MAKE THE DIFFERENCE
By D. Gregory Valenza
Daily Journal
2009-03-13

The legal press is full of bad news regarding the economy's effect on law firms. Hardly a day goes by without news of layoffs and even the dissolution of firms considered to be robust just months ago. The same media have noted no shortage of employment law work, which is true for us and colleagues with whom I have spoken.

THE AMERICAN RECOVERY AND REINVESTMENT ACT: WHAT EMPLOYERS NEED TO KNOW
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-03-12

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act (“ARRA”) into law. The stated purpose of the ARRA, often referred to simply as the “stimulus bill,” is to improve our economy by, among other things, creating and saving jobs, improving affordable health care, providing tax relief, and improving the nation’s infrastructure.

PRESIDENT OBAMA ENCOURAGES UNION ACTIVITY WITH EXECUTIVE ORDERS
By Jennifer Brown Shaw and Matthew J. Norfleeet
The Daily Recorder
2009-02-26

Union activity will likely dramatically increase during the current presidential term as a result of President Obama’s recent executive orders. Not surprisingly, Obama received organized labor’s endorsement during his campaign. Many describe him as the most vocally pro-union president since the New Deal. Shortly after inauguration, while signing three union-friendly executive orders, he announced, “I do not view the labor movement as part of the problem, to me it’s part of the solution” Recently, he signed a fourth and related order.

LILLY LEDBETTER'S GOOD YEAR
By D. Gregory Valenza
Daily Journal
2009-02-13

The Lilly Ledbetter Fair Pay Act of 2009 amends the statutes of limitations applicable to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990 and the Rehabilitation Act of 1973. The law overturns the U.S. Supreme Court's 5-4 decision in Ledbetter v. The Goodyear Tire and Rubber Company, 550 U.S. 618 (2007). One of the first bills passed by the new Congress, President Obama signed it into law on Jan. 29.

MINIMIZING THE RISKS ASSOCIATED WITH LAYOFFS
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2009-02-12

Call it a recession or a depression; the consequences of this economy are the same for an increasing number of employers in the country—employee layoffs. Not coincidentally, employment lawyers experienced a surge of business at the end of 2008 from employers seeking advice on how to reduce the potential liability associated with reductions in force.

COST-SAVING MEASURES TO PRESERVE BUSINESSES AND JOBS: ALTERNATIVE WORKWEEKS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2009-01-29

Our economic recession has wrought hiring freezes, lay offs, business closures, etc. Both employers and employees are suffering. To keep afloat and perhaps avoid layoffs, employers are seeking creative ways to save money and conduct business more efficiently. One option is to reduce employer liability for payment of overtime. The adoption of an “alternative workweek” may be a means to accomplish this goal.

A FREE COUNTRY?
By D. Gregory Valenza
Daily Journal
2009-01-16

The inauguration of President-elect Barack Obama is just a few days away. Congress will assemble with solid Democratic majorities in each house. The new administration doubtless will breathe new life into bills that have languished in Congress during the past eight years.

NEW YEAR’S RESOLUTION: REVIEW THE JOB APPLICATION
By Jennifer Brown Shaw and Matthew Norfleet
The Daily Recorder
2009-01-15

This column frequently reminds employers to regularly review personnel practices to stay up-to-date, even longstanding ones. Because this is the beginning of a new year, it is fitting to discuss the beginning of the employer-employee relationship: job applications.