News & Analysis

CA Supreme Court provides clarity on offers to compromise in arbitration proceedings

An offer to compromise under Code of Civil Procedure Section 998 incentivizes parties to settle. If a party rejects a pretrial offer to compromise and obtains a lesser result at trial, the opposing party may be awarded its costs. Section 998 applies to civil actions and arbitrations. The California Supreme Court recently issued a decision clarifying the deadline for requesting costs in arbitration proceedings under Section 998 and a court's authority to review an arbitrator's denial of costs.

CalPERS pensions: when 'special compensation' isn't so special

California Public Employees' Retirement System (CalPERS) is regularly called on to determine whether certain compensation earned by public employees is properly included in calculating their future pension rate. Generally, an employee's pension rate is based on his regular rate of pay and doesn't include extra compensation, such as overtime. The following case looks at whether an employee's bonuses, earned over six years, were properly included in calculating his pension rate. The outcome turned on whether the bonus payments were "special compensation" as defined by the Government Code.

Shifting attorneys' fees is dead end for employers, CA appeallate court says

On May 24, 2019, the California Court of Appeal decided an employer isn't entitled to attorneys' fees even when it prevails on a wage claim that's "inextricably intertwined" with a valid contractual claim for the fees. State courts are consistent in using public policy to justify preventing employers from recovering attorneys' fees when they prevail on claims against current or former employees. The following case continues that trend.

When determining contractor status, ABC test applies retroactively

The U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers) recently ruled the California Supreme Court's 2018 Dynamex decision, which adopted the "ABC" test to determine whether a worker is an employee or an independent contractor, applies retroactively to claims that arose years ago, when individual franchisees claimed their national franchisor was their employer under state law.

What to do when U.S. DOL comes knocking at your door

The U.S. Department of Labor (DOL) performs wage and hour audits of employers by selecting them at random, or because they are in targeted industries (usually low-wage), or as a result of a complaint from an employee or former employee. The investigations have increased significantly over the past few years and can result in orders for back wages and penalties. What steps should you take when the DOL comes knocking (generally with no prior notice)? Read on and you'll learn!

In employment decisions (as in comedy), CA case shows timing is everything

It's a fairly common story: An employer disciplines or discharges an employee, who then files a lawsuit claiming the action is retaliation for a complaint or grievance she previously made ("protected conduct"). Although the employee's lawsuit describes a litany of "retaliatory" actions supposedly taken by the employer, the facts show large gaps of time between her alleged protected conduct and the employer's supposedly "retaliatory" actions.

It's not me—it's you: how to break up with your employees

Relationships—both personal and professional—can be complicated. Just like first dates, job interviews offer candidates the chance to show a prospective employer the best possible version of themselves: smart, charming, funny, and responsible. As an employer, you ask exploratory questions about a candidate's background, education, interests, and goals for the future to see if it's a good fit. If you both agree that it is, you start a relationship.

Predictability in the law after Dynamex—who knows?

We still don't know whether Governor Gavin Newsom will be a brake on California's Democratic legislature or a rubber stamp. The California Assembly's recent passage of Assembly Bill (AB) 5 may provide an early test, once it passes the Senate—which it surely will.

To Bugg out or not to Bugg out: Was ambiguous e-mail a resignation?

Recently, the Arkansas Court of Appeals addressed whether an employee's ambiguous letter of protest that could be interpreted as an intent to resign was sufficient to constitute a voluntary departure without good cause that justified the denial of unemployment benefits after the employee was terminated.

Be very careful what you ask for—employee status can be a blessing or a curse

Many employers seek to designate workers as independent contractors rather than employees. A recent workers' compensation case before the Arkansas Court of Appeals illustrates why that approach may have significant negative repercussions.