News & Analysis

When is sexual abuse an 'accident'?

A student alleged that she was sexually abused by a construction worker at her school and sued the construction company for negligently hiring, retaining, and supervising the worker. The company submitted the claim to its insurance company under a commercial general liability policy. The carrier successfully challenged the company's request for coverage in federal court. When the case reached it on appeal, the 9th Circuit Court of Appeals (whose rulings apply to all California employers) requested guidance from the California Supreme Court, which broke from the district court and deemed the student's lawsuit a covered "occurrence" under the insurance policy.

Shine no more: turning off the lights on second class action

The California Court of Appeal recently considered whether an employee who was part of a previous class action settlement could bring another class action against the same employer. Does an employee get more than one bite at the apple?

Don't count those chickens just yet: Case reborn after dismissal

In the following case, a procedural error resulted in the dismissal of two employees' claims against their employer. However, one of the employees saw her case revived after the other employee abandoned her claim while the issue was being appealed.

High court upholds arbitration agreements that bar class actions

In recent years, one of the most highly disputed issues in employment law circles was whether an employer could require employees to waive their right to participate in a class action lawsuit and instead submit employment-related disputes to binding arbitration. Such a requirement has become a common condition of employment contracts, typically entered into at the beginning of an employment relationship, and/or as a condition of continuing employment.

Planning and education are key to successful HSA

Over the past decade, the percentage of employers offering a health savings account (HSA) to their employees has grown dramatically. HSAs are a form of "consumer-driven health plan," a category of employee benefit that strives to place more responsibility on employees to be better consumers of health care. In short, employees pay 100 percent of the deductible under a high-deductible health plan (HDHP). In return, they are given the opportunity to contribute to an HSA, which offers substantial tax benefits.

Practical lessons from the #MeToo movement

In the eight months since the Harvey Weinstein scandal broke, there have been many calls for better employer policies against workplace sexual harassment. But the problem isn't insufficient policies—almost every organization touched by revelations of sexual harassment had fine policies in place. Moreover, a group of powerful Hollywood actresses began "Time's Up," a legal fund to help victims of harassment obtain lawyers. But in California, at least, there's no shortage of lawyers willing to take these claims. Surely, the remedy for sexual harassment has to be quicker and more systemic, without necessarily resorting to lawyers and litigation.

Public-sector employers catch a break in the post-Dynamex world

The California Supreme Court gave employers across the state a case of serious heartburn when it issued its ruling in Dynamex Operations West, Inc. v. Superior Court earlier this year. The decision amounts to a seismic change in the law that makes it very difficult for employers in certain industries and occupations to demonstrate that their workers are independent contractors rather than employees. But while the decision carries wide-ranging implications for private-sector employers in California—particularly those engaged in the gig economy—employers in the public sector shouldn't reach for the antacids just yet.

Just the icing on the cake

The U.S. Supreme Court was widely expected to decide between religious rights and LGBTQ rights when it issued its ruling in Masterpiece Cakeshop vs. Colorado Civil Rights Commission, the case involving a Colorado baker who refused to bake a cake for a gay wedding. But—in the tradition of the Supreme Court—the justices ducked the main issue and delivered a more narrow ruling in a 7-2 decision that crossed liberal and conservative lines. Justice Clarence Thomas from the right and Justice Ruth Bader Ginsburg from the left took issue with the centrist majority.

Workplace Trends

Study finds link between workers' clothing and chances for promotion. Research from staffing firm Office Team finds that 86% of professionals and 80% of managers believe that clothing choices affect someone's chances of being promoted. The research shows that HR managers say that jeans, tennis shoes, and leggings are more acceptable to wear to work now than five years ago. In the same time frame, employers have become less tolerant of tank tops, tops that expose one or both shoulders, and shorts. The study found that 44% of senior managers have talked to an employee about inappropriate attire, and 32% have sent staff home based on what they were wearing.

False statement about job opening sufficient to imply discriminatory intent

The California Court of Appeal recently decided that a potential employer is not immune from liability under the California Fair Employment and Housing Act (FEHA) for thwarting a pregnant woman's plan to apply for a job by falsely telling her that no position was available. Although the woman never applied for the job, the supervisor's statement raised a triable question about whether the employer intentionally discriminated against her based on her pregnancy. Accordingly, the trial court's dismissal of the case without a trial in favor of the employer was reversed.