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UPDATED EMPLOYEE POLICIES FOR 2008
By Jennifer Brown Shaw
The Daily Recorder
2007-12-18

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 In addition to replacing outdated workplace posters and pamphlets, implementing the new I-9 form, and ensuring employees receive notice of their right to claim the Earned Income Tax Credit,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
2007-12-07

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
2007-12-06

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
2007-11-20

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
2007-11-06

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
2007-11-02

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
2007-11-01

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
2007-10-23

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
2007-10-09

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
2007-09-27

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
2007-09-21

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
2007-09-05

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
2007-08-28

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
2007-08-14

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
2007-08-10

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
2007-07-31

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
2007-07-27

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
2007-07-18

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
2007-07-02

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
2007-06-28

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
2007-06-22

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
2007-06-19

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
2007-06-06

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
2007-05-23

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
2007-05-08

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
2007-05-04

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
2007-05-01

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
2007-04-25

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
2007-04-11

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
2007-04-06

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
2007-03-28

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
2007-03-14

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
2007-02-28

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
2007-02-13

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
2007-01-30

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
2007-01-18

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
2007-01-03

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.