News & Analysis

A California Court of Appeal goes 'where no one has gone before'

A California Court of Appeal has found that an employer may be liable under the California Fair Employment and Housing Act (FEHA) for failing to accommodate a nondisabled employee's request to modify his work schedule to care for a disabled family member. The court's interpretation of the FEHA creates significant new obligations for California employers.

Paid parental leave gains momentum

America's lack of government-sponsored paid parental leave has become regular front-page news, and politicians are paying attention—especially in an election year. Recently, New York state and San Francisco passed paid leave legislation to assist working families at the state and local level. And in an increasingly competitive job market, large technology companies recognize that offering generous amounts of paid leave to new parents is a valuable tool in attracting and retaining employees.

California Supreme Court enforces employment arbitration agreement

In addition to making trendy clothes, fashion retailer Forever 21 made precedent in the California Supreme Court's latest opinion enforcing an arbitration agreement and rejecting an employee's argument that the agreement to arbitrate was unconscionable. Unconscionability refers to an absence of meaningful choice by a party to a contract (i.e., a take-it-or-leave-it contract), coupled with contract terms that unreasonably favor the other party. The California Supreme Court explained that an arbitration agreement that simply confirms a statutory right, regardless of whether the right is more likely to benefit the employer than the employee, does not make the agreement substantively unconscionable and ultimately unenforceable.

9th Circuit OK's tip-pooling rules for employers that don't take tip credit

In restaurants and other establishments where employees are customarily tipped for service, employers are permitted by the Fair Labor Standards Act (FLSA) to take a "tip credit" against the minimum wage otherwise owed to those employees. That means employers may pay less than the federal minimum wage to employees who receive tips that bring their total compensation above the minimum. (Note that some states, including California, do not permit a tip credit against state wage obligations.)

Public teacher's complaints weren't protected by First Amendment

Public-sector employees have free-speech rights under the U.S. Constitution when they speak up as citizens on matters of public concern. But in accepting public employment, they give up constitutional protection for speech that is part of their jobs. The U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers) recently considered whether outspoken complaints by a public schoolteacher were protected by the First Amendment or were just part of her job.

Agency Action

AFL-CIO commits to a Raising Wages agenda. AFL-CIO President Richard Trumka issued a statement in February 2016 ahead of the labor organizations winter meeting saying it would not make a presidential endorsement at the meeting but is committed to a Raising Wages agenda. The statement said the organization has an endorsement process in place, but most importantly, we will further elevate the Raising Wages agenda and hold all politicians accountable to it. The statement said the AFL-CIO would continue to encourage affiliated unions to pursue their own deliberations with their members and come to their own endorsement decisions, if any, through open and rigorous debate.

Two significant public-sector case developments

Three recent cases—one before the U.S. Supreme Court and two before the California Court of Appeal—have been a boon for public-sector unions. An unexpected event beyond the courthouse has led to the preservation of "agency shop" in public-sector workplaces, while a court's interpretation of the Meyers-Milias-Brown Act (MMBA) permits unions to compel fact-finding for any bargainable issue.

P.F. Chang's denied attorneys' fees in wage and hour case

California wage and hour law is a convoluted landscape when it comes to determining when a prevailing employee or employer can recover attorneys' fees and costs. Under California Labor Code Section 1194, an employee who wins a lawsuit against her employer for nonpayment of overtime compensation is entitled to recover reasonable attorneys' fees. An employer that successfully defends against such a claim, however, is not. This unique "one-way fee-shifting" provision is an exception to the normal "American rule" that each party bears its own attorneys' fees.

Top 10 tips for managing employees with attendance issues

California employers have long faced significant hurdles in managing attendance issues presented by problem employees. Ignoring attendance issues and then disciplining or terminating the employee, selectively enforcing attendance policies, or micromanaging attendance issues can all result in unwanted litigation. The following comments are commonsense suggestions every employer should keep in mind to minimize the chances of unwanted disputes with employees over attendance issues.

Whistleblower didn't need to participate in administrative hearing before suing

The question in the following case was whether an employee's refusal to challenge his termination under the city of Montebello's administrative procedures barred his subsequent lawsuit claiming he was terminated because he was a whistleblower.