News & Analysis

SLAPP-happy: Some of journalist's claims get anti-SLAPP protection

Section 425.16 of the Code of Civil Procedure, commonly known as the anti-SLAPP statute (SLAPP stands for "strategic lawsuit against public participation"), authorizes a person to file a special motion to strike claims "arising from any act . . . in furtherance of [his] right of petition or free speech under the [U.S.] Constitution or the California Constitution in connection with a public issue." Courts evaluate anti-SLAPP motions in two steps. First, the person who filed the motion bears the burden of establishing that the challenged allegations or claims arise from protected activity in which he engaged. If that party carries his burden, the person asserting the claims must demonstrate they have at least "minimal merit." In the following case, the California Supreme Court was asked to address how the anti-SLAPP statute applies to employment claims against a news organization.

Companies defeat statistics-based class certification in misclassification case

A decision from the 2nd District Court of Appeal will elicit a sigh of relief from California employers with regard to employee misclassification claims and the purported use of "scientific" evidence to establish liability and damages for wage and hour violations. The case shows that employers may defeat class certification by emphasizing that individualized inquiries are required to demonstrate liability. And if the employees' proposed trial plan doesn't account for those individualized inquiries or allow the employer to adequately assert its affirmative defenses, the court will likely deny class certification in the interest of fairness.

For the third time, court of appeal gives EDD the boot

Eight years ago, Jose Robles applied for unemployment compensation after he was fired, but his claim was denied. After a lengthy motion and appeal process, a California Court of Appeal ordered that benefits be paid. The California Employment Development Department (EDD) continued to give Robles the runaround, and after a new series of motions, the court of appeal again ordered the EDD to make the payments. Robles then returned to the court of appeal for the third time to ask for an increase in attorneys' fees. The court took the opportunity to blast the EDD for its behavior and explain the public benefit of the unemployment compensation system.

New laws protect hairstyles, healthcare workers' right to speak to state investigators

In July, Governor Gavin Newsom signed two new laws that expand both existing employee protections and compliance challenges for California employers. Senate Bill (SB) 188, titled the Creating a Respectful and Open Workplace for Natural Hair Act (CROWN Act), expressly extends the California Fair Employment and Housing Act's (FEHA) prohibitions on discrimination by employers and schools to hairstyles and hair texture historically associated with race. It's the first such law enacted in the United States. SB 322 creates an express right for healthcare employees or their representatives to raise potential regulatory violations or patient safety concerns privately with California Department of Public Health (CDPH) inspectors during an investigation or a hospital inspection. Let's take a closer look at the new laws.

Employee-centered complaint intake: new approach for changing times?

The #MeToo movement and changing expectations for the quality of workplace harassment investigations should inspire employers to learn more about trauma-informed investigation techniques. In this article, we will briefly summarize pertinent neurobiology of trauma-related issues, then take a step back and address how a crucial but often overlooked part of the investigation process ― the initial intake of a complaint ― could also be enhanced by the adoption of a similarly employee-centered approach.

Trust ― cornerstone for high performance culture

A CEO for a privately held telecommunications company just learned the results of a recent corporate culture survey. Only forty percent of her employees responded favorably in the category of "Employee Engagement." She was disappointed and frustrated, recognizing the impact of high employee engagement on achieving operational excellence. The initiatives that she implemented within the past year to boost commitment had failed. She didn't know what to do next.

They're back! Responding to 2019 no-match letters

In March 2019, the Social Security Administration (SSA) began mailing educational correspondence (EDCOR) ― also known as employer correction request (ECR) notices and formerly known as "no-match letters" ― to employers that filed W-2 forms for 2018 containing at least one mismatched name and Social Security number (SSN). You should not ignore the notices. You must ensure you're complying with your obligations to resolve the errors. Failure to comply could result in an I-9 audit by U.S. Immigration and Customs Enforcement (ICE) and/or penalties from the IRS. To avoid noncompliance, you should act quickly.

AR requires more than conclusory allegations before case can go to trial

The Arkansas Supreme Court recently addressed the minimum standard a litigant must meet in her complaint before a lawsuit can move forward. While the case, against a state agency, involved issues such as qualified immunity that don't apply to most employers, its holdings about the level of detail that must be alleged before the litigation can proceed is relevant to all employers.

FMLA doesn't shield employees from reasonable disciplinary action

Employers often feel they're walking through a minefield when dealing with employees who can use discrimination law as a tool to prevent them from managing their businesses and dealing with problems in a reasonable manner. The U.S. 8th Circuit Court of Appeals (which governs the federal courts in Arkansas) recently showed there are limits to employees' ability to use the laws as a shield against justifiable disciplinary action.

ERISA update: Sometimes, summary plan is the plan

Although some employers leave the administration of their employee benefits to third-party entities, particularly insurance companies, many operate self-funded plans, which leaves the employer more directly responsible. Moreover, even with third-party plans, there is still an annual obligation to provide employees with a summary plan description (SPD) that explains what those benefits are. As the 8th Circuit recently found, the SPD also can determine what the employer's rights are.