News & Analysis

No combined rest breaks for the weary

Since the California Supreme Court's seminal meal and rest break decision Brinker v. Superior Court in 2012, employers have wrestled with whether, in their particular circumstances, it would be impractical to provide their employees with two separate rest breaks before and after a meal period during an eight-hour shift. Under what circumstances, for example, may an employer combine two rest breaks into one longer break? The California Court of Appeal, 2nd Appellate District, recently established a test for determining whether and to what extent an employer may depart from the standard rest break schedule.

Employers: Stand up and take notice of suitable seating requirements

On April 4, 2016, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court clarified some of the ambiguities related to the California Wage Orders' "suitable seating" requirements. Because of the likelihood of increased class actions, employers should pay particular attention to the suitable seating requirements and review their policies and practices to ensure compliance.

Getting jury instructions right in age discrimination claims

If an employee proves that an illegal reason (such as age discrimination) was a substantial motivation in his employer's decision to terminate him, does the company have any defense to a wrongful termination claim? A recent case confirms that a California employer may avoid liability if it can prove that it would have made the same termination decision, regardless of the wrongful motivation.

Court reaffirms that anti-SLAPP motions aren't appropriate for private workplace disputes

A strategic lawsuit against public participation (SLAPP) masquerades as an ordinary lawsuit but is brought to deter common citizens from exercising their political or legal rights or to punish them for doing so. The goal of someone who files a SLAPP lawsuit isn't necessarily to win the lawsuit but rather to silence the other party and intimidate others from participating in the debate. For example, imagine a developer using a defamation lawsuit for no other reason than to silence the critics of a controversial development or university.

Religious freedom or LGBT bias? Employers caught in fallout from state bills

Lawmakers in various states have been tackling questions about how religious freedom and LGBT rights intersect, leaving employers wondering how new state initiatives might affect their workplaces. In recent months, several states have enacted or debated religious freedom bills that have sparked cries of discrimination and calls for boycotts. Other states have considered bills not specifically addressing the exercise of religion but requiring individuals to use public bathrooms and locker rooms for the gender listed on their birth certificates.

The aging workforce and how employers can avoid age discrimination claims

Older workers continue to make up a significant portion of the U.S. workforce as many Baby Boomers opt to continue working past the traditional retirement age. According to the U.S. Bureau of Labor Statistics (BLS), workers age 55 and over will make up more than 25 percent of the U.S. workforce by the year 2022. That could mean a potential increase in age discrimination lawsuits filed under the federal Age Discrimination in Employment Act (ADEA) and comparable state age discrimination laws.

When do two wrongs make a right?

Legal procedure is often very technical. We see it all the time in procedural cop shows: Evidence is excluded because it was obtained without a warrant, or a perpetrator walks because she wasn't charged quickly enough. But procedural traps permeate the employment field as well, as two new cases illustrate.

Agency Action

Over 10,000 severe injuries reported in first year of new requirement. The Occupational Safety and Health Administration (OSHA) reported in March 2016 that 10,388 severe work-related injuries were reported in the first year of the agencys new reporting requirement. Since January 1, 2015, employers have been required to report any severe work-related injurydefined as a hospitalization, amputation, or loss of an eyewithin 24 hours. The requirement that an employer report a workplace fatality within eight hours remains in force. In the first full year of the program, employers reported 10,388 severe injuries, including 7,636 hospitalizations and 2,644 amputations. OSHA said that it responded to the reports by working with the employers to identify and eliminate hazards rather than conducting a worksite inspection.

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 Alaska employers) recently considered whether outspoken complaints by a public schoolteacher were protected by the First Amendment or were just part of her job.

Religious freedom or LGBT bias? Employers caught in fallout from state bills

Lawmakers in various states have been tackling questions about how religious freedom and LGBT rights intersect, leaving employers wondering how new state initiatives might affect their workplaces. In recent months, several states have enacted or debated religious freedom bills that have sparked cries of discrimination and calls for boycotts. Other states have considered bills not specifically addressing the exercise of religion but requiring individuals to use public bathrooms and locker rooms for the gender listed on their birth certificates.