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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.

STATUTE OF LIMITATIONS FOR FEHA CLAIMS ON THE VERGE OF EXTINCTION
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-12-30

The California Fair Employment and Housing Act (FEHA) requires an employee to file an administrative complaint of discrimination, harassment, or retaliation within one year of the alleged unlawful employment practice. This statute of limitations provides employees with time to assert their claims. It also protects employers from stale claims, faded memories, and unavailable witnesses, and makes it easier for the administrative agency involved (the Equal Employment Opportunity Commission (EEOC) or the state Department of Fair Employment and Housing (DFEH)) to investigate, obtain documents, find witnesses, etc.

WILL CONGRESS BAN SEXUAL ORIENTATION DISCRIMINATION?
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2008-12-18

The passage of Proposition 8, overturning the California Supreme Court’s decision authorizing marriage between same-sex couples, has brought visibility and controversy to California. The debate over the measure has dominated political and private discussions with an intensity that suggests civil rights laws will continue to be hotly debated – including those related to employment and the workplace.

DISABILITY DISCRIMINATION AND QUALIFICATION STANDARDS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-12-02

The federal Americans with Disabilities Act protects individuals with disabilities from discrimination. The Fair Employment and Housing Act is the California anti-discrimination law that provides similar protections. Both the ADA and FEHA require employers to make reasonable accommodations when qualified employees can perform the essential functions, but not necessarily all other requirements, of a job.

GOLDEN STATE OF MIND
By D. Gregory Valenza
The Daily Journal
2008-11-28

Employers based in other states may send their workers to California on sales or service calls, for long-term consulting assignments or for brief meetings. Employers regularly employing workers in California learn - sometimes the hard way - about the many unique employment laws and regulations they must follow, particularly in the "wage and hour" arena. But then there are businesses whose workers enter California only sporadically or for short periods of time. Can it be that an employee who lives and works in Arizona is covered by Arizona law on Monday and California law on Tuesday just because she takes a business trip? Hint: If the answer were "no," this article would be much less interesting.

RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-11-20

Lawsuits claiming harassment, discrimination or retaliation are expensive to defend. In an effort to resolve equal employment opportunity (EEO) issues before they become legal liabilities, most employers have developed and implemented procedures for dealing with internal EEO complaints. These internal procedures often involve a multi-step process used to evaluate whether the conduct at issue violates the organization’s policy and identify solutions to prevent inappropriate conduct from continuing.

NEW LAW AIMS TO ENCOURAGE COMPLIANCE WITH DISABLED ACCESS RULES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-11-06

Last year we wrote about laws related to the access rights of persons with disabilities to public establishments. We discussed data suggesting that while public access laws increase the quality of life for persons with disabilities, these laws have also led to vexatious litigation against property owners who are not given the opportunity to remedy compliance issues before incurring substantial penalties. In an effort to encourage a proactive approach to dealing with access issues, the Governor recently signed Assembly Bill 1608 (“SB 1608”). While SB 1608 does not provide for the “safe harbor” or “cure period” property many business advocates have sought, the new law will likely reduce owners’ liability for access issues through preventive measures.

NEW LAWS AND OTHER DEVELOPMENTS FOR CALIFORNIA EMPLOYERS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-10-22

Once again, Governor Schwarzenegger vetoed a majority of the workplace-related bills passed by the Legislature. Only a handful of new laws will directly affect employers. We summarize those laws, various bills that may reappear in the next legislative session, and a few additional developments below.

ALTERNATIVE POSITIONS AS A REASONABLE ACCOMMODATION: WHAT IS REQUIRED?
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-10-08

The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both require employers to reasonably accommodate the known physical or mental limitations of an otherwise qualified employee or applicant with a disability. However, an employer’s duty to provide reasonable accommodation under the FEHA is broader than under the ADA, even considering the recent amendments to the ADA which become effective on January 1, 2009. (We wrote about the amendments in our September 24, 2008, column.)

THE ADA AMENDMENTS ACT
By Jennifer Brown Shaw and D. Gregory Valenza
The Daily Recorder
2008-09-24

President Bush is expected to sign what is now called the ADA Amendments Act of 2008 (“ADAAA”). Formerly known as the ADA Restoration Act, Congress passed the ADAAA earlier this month. The ADAAA is intended to revise aspects of the original ADA, which President George H.W. Bush approved in 1990.

FLESHING OUT THE ADA
By D. Gregory Valenza
The Daily Journal
2008-09-16

Americans with Disabilities Act's employment provisions took effect in July 1992. The courts, employers and their lawyers, are still trying to get it right. The law is different from other anti-discrimination laws. Most employment laws prohibiting discrimination command equal treatment. The ADA, though, requires something more: equal treatment via "reasonable accommodation." The form and extent of the accommodation obligation has vexed everyone who works with the ADA, particularly those who do not regularly interpret or apply the statute. In California, the task is made more difficult by the Fair Employment and Housing Act's more inclusive definition of "disability."

BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-09-10

Employers increasingly are relying on credit and background checks in the hiring process. Employers want assurances that their employees are honest and trustworthy. Internal investigations of certain misconduct allegations are now required by anti-discrimination laws and others, such as Sarbanes-Oxley. At the same time, surveys show resume fraud is rampant. Job references often won’t provide information about former employees other than “name, rank and serial number.” With a bad economy, huge student loan liabilities, and the mortgage crisis, potential employees may appear to be untrustworthy with credit.

EDWARDS V. ARTHUR ANDERSEN: NON-COMPETE AGREEMENTS AND GENERAL RELEASES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-08-26

California law is tough on agreements that restrain an individual from engaging in his or her profession, trade or business. The only statutory exceptions to this strict rule are non-competition agreements associated with certain business sales transactions and dissolution of partnerships. There are common law restrictions as well. For example, employees usually cannot directly compete with a current employer where doing so would constitute a conflict of interest. Additionally, employees may be restricted from certain post-termination activities to protect the former employer’s trade secrets. Employers also may use financial disincentives to dissuade employees from leaving, such as requiring repayment of training costs, and bonuses that require employment on a certain date.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 22, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-22

New on our Blog this week:

- Can't Currently Count on Kin Care Case

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 15, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-15

New on our Blog this week:

- Court of Appeal: Inadequate Notice of Disability But Sufficient Notice for CFRA Leave
- California Paid Sick Leave Bill - Status

MEAL AND REST PERIODS: BEST PRACTICES IN LIGHT OF BRINKER
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-08-12

The California Court of Appeal recently rendered an opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) which addresses several heavily litigated meal/rest period issues. While employers obviously welcomed the clarification provided by the ruling, lively celebration may be a bit premature. First, the case may find its way to the California Supreme Court. If the Supreme Court grants review as many anticipate, the law pre-Brinker will apply until the high Court rules. Additionally, the Legislature could decide to take a stand on Brinker as part of the continued budget stalemate. In that case, we may end up with compromise legislation and an unanticipated new law.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 8, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-08

New on our Blog this week:

- California Supreme Court Says "no" to "Limited" Non-Compete Agreements, but "yes" to Broad Releases
- California Supreme Court Takes Up Harvey v. Sybase
- Narrowcast Supreme Court Opinion Contains Hidden Gems
- New California Law: Limit on Wage and Hour Releases

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF AUGUST 1, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-08-01

New on our Blog this week:

- DLSE Memorandum to Staff: Follow Brinker
- New California Statute: SB 940 - Temporary Services Employees
- EEOC Issues New Guidance on Discrimination Based on Religion

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-07-31

The California Supreme Court decided several significant employment law cases since our last summary in September 2007. The Court’s opinions address a number of topics, including expense reimbursement, employee privacy, government employee due process rights, leaves of absence, drug testing, and retaliation. The Court also accepted review of several decisions that will affect employment law in the months to come. We summarize below the recently decided and pending cases.

MEAL AND BREAK CLASS ACTIONS: ON THE “BRINKER” OF EXTINCTION?
By D. Gregory Valenza
The Daily Journal
2008-07-25

The Court of Appeal's opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) , ___ DJAR ____ (Jul. 22, 2008), addresses several heavily litigated issues regarding meal and rest period claims. If the decision withstands an anticipated petition for review to the Supreme Court, the court's opinion will sharply curtail class action litigation over alleged meal and rest period violations.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 25, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-25

New on our Blog this week:

- Brinker Article
- Brinker: The Watershed Meal Period Decision Comes Down
- Federal Minimum Wage Going Up to $6.55 per hour 7/24/08

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 18, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-18

New on our Blog this week:

- Ninth Circuit on Damages Available under FMLA
- Pre-Certification Motion to Strike Class Action Upheld

UNITED STATES SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw
The Daily Recorder
2008-07-18

The United States Supreme Court decided several significant employment law cases during the 2007 Term. The Court’s opinions ranged from the validity of administrative charges filed with the Equal Employment Opportunity Commission, to the scope of the Age Discrimination in Employment Act, as well as to anti-retaliation provisions. There currently are four cases on the docket for next Term, each of which is summarized below. (The Court may add more cases to the docket as the new Term approaches in October 2007).

'BABY' WARN ACT MIGHT BE GROWING UP
By D. Gregory Valenza
The Daily Journal
2008-07-03

The economic downturn results in increased layoffs and business closings. Employers must consider whether they are required to give legally required advance notice of these events. Federal law includes the Worker Adjustment and Retraining Notification Act, known as WARN. However, California employers may be covered by an analogous state law, informally known as the "baby" WARN Act. Labor Code Sections 1400-1408. Both laws require employers to give advance "notice" to affected employees and certain government entities of future employment losses. These laws' purpose is to give workers time to seek new employment, and to facilitate the government's programs for the unemployed to absorb a large influx of unemployed workers.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JULY 3, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-07-03

New on our Blog this week:

- Charter Counties Not Covered by Labor Code Overtime and Meal/Rest Period Provisions
- Offers of Compromise
- Court of Appeal: Deduction of Training Costs from Final Pay Illegal

SEVERAL NEW “RETALIATION” DECISIONS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-07-02

The courts have issued a significant number of retaliation decisions in the past several weeks. The U.S. Supreme Court held in two cases that employees are protected from adverse employment actions for complaining about civil rights violations, even when the underlying statutes did not contain anti-retaliation provisions. Two panels of the California Court of Appeal went in different directions regarding what constitutes “retaliation.”

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JUNE 27, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-06-27

New on our Blog this week:

- New I-9 Form
- IRS Standard Mileage Rate GOING UP
- U.S. Supreme Court Holds Plan Administrator Had Conflict of Interest
- U.S. Supreme Court Decides State Pension Formula Does Not Violate ADEA
- Ninth Circuit: No-Match Letters Not Convincing Evidence of Immigration Status
- Ninth Circuit: Employee's Burden to Show Disability Under ADA
- Court of Appeal to Employers: No Coverage for You if Claims Reported Untimely
- Ninth Circuit Invalidates Certain Pre-Employment Inquiries

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF JUNE 20, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-06-20

New on our Blog this week:

- U.S. Supreme Court on Employer's Burden of Proof in Age Discrimination Cases
- Happy Second Anniversary to Us!
- Ninth Circuit: No Right to Search Text Messages Stored by Third Party
- Supreme Court Strikes Down California AB 1889 - Union "Neutrality"
- Court of Appeal Permits Claim of "Preemptive" Retaliation
- Court of Appeal Rules on Holiday Pay, Regular Rate, and Overtime
- OSHA: Employers Must Pay for Most Personal Protective Equipment
- Local Living Wage Ordinance Not Local

THE DIFFERENCES BETWEEN STATE AND FEDERAL ANTI-DISCRIMINATION LAWS
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-06-18

President Bush recently signed into law the Genetic Information Nondiscrimination Act (“GINA”). The new law, when it takes effect at the end of 2009, makes it unlawful for employers to discriminate against employees based on genetic characteristics. Yet, California’s Fair Employment and Housing Act (“FEHA”) already prohibits discrimination on the basis of genetic information. In fact, the FEHA has traditionally provided broader protections against discrimination than federal law. This creates confusion for employers who do not understand the many distinctions between the federal and state statutes. While this article does not address all of those distinctions, below are some of the key differences.

EMPLOYMENT CONTRACTS – GETTING IT RIGHT
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-06-04

All employment relationships are contractual. The essence of the relationship is the employee’s promise to work in exchange for the employer’s promise to pay wages. However, employers and employees enter into more formal employment contracts to define the employment relationship in more precise terms.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 30, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-30

New on our Blog this week:

- Courts' First Kin Care Ruling
- U.S. Supreme Court Issues Two Retaliation Decisions
- GINA's Little Secret
- Court of Appeal: No Disability and No Retaliation

A KIN CARE CONUNDRUM
By D. Gregory Valenza
The Daily Journal
2008-05-30

Many employers provide some form of paid sick leave to their employees. In fact, employers are required to do so for employees working in San Francisco. Don’t be jealous. The Legislature is considering a bill that would mandate paid sick leave statewide. See Assembly Bill 2716.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 23, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-23

New on our Blog this week:

- Meet GINA
- Update - Cal. Supreme Court Review Granted

WORKPLACE INVESTIGATIONS: WHOM TO CALL
By Jennifer Brown Shaw, Matthew J. Norfleet and Shane K. Anderies
The Daily Recorder
2008-05-22

As the number of employment laws has grown, so has the number of opportunities for employees to complain about violations of those laws. At the same time, courts have placed on employers increasing responsibility to conduct immediate, good faith, and complete investigations, particularly in the area of discrimination, harassment, and retaliation.

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 16, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-16

New on our Blog this week:

- Proposed SB 1583 Imposes Liability for Bad Independent Contractor Advice
- Court of Appeal Examines "Same Actor" Inference

WHATS NEW IN EMPLOYMENT LAW? (WEEK OF MAY 9, 2008)
By D. Gregory Valenza
Shaw Valenza LLP Blog
2008-05-09

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
2008-05-08

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
2008-05-02

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
2008-05-01

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
2008-04-28

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 the 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
2008-04-18

New on our Blog this week:

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

POLITICAL ACTIVITY AT WORK: WHAT ARE THE LIMITS?
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-04-09

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
2008-04-04

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
2008-03-28

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
2008-03-26

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
2008-03-21

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
2008-03-12

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
2008-03-07

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
2008-02-29

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
2008-02-26

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
2008-02-22

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
2008-02-15

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
2008-02-15

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
2008-02-13

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.

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
2008-02-01

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
2008-01-30

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.

SHOULD PAY CARDS BE TREATED THE SAME AS PAYCHECKS?
By D. Gregory Valenza
The Daily Journal
2008-01-18

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
2008-01-15

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
2008-01-02

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.