News & Analysis

Public employees' 'private' messages may be disclosable under PRA

In a groundbreaking decision issued on March 2, 2017, the California Supreme Court ruled that personal e-mails and text messages sent or received by public employees using their personal accounts and electronic devices may be subject to disclosure under the California Public Records Act (PRA) if the communications are related to official agency business. The court's decision broadens the definition of "public records" under the PRA and blurs the boundary between private and public communications.

Small errors can lead to big employer payouts

This case illustrates how small procedural errors can result in big payoffs for an employee. First, an error by a payroll company in the payment of final wages to an employee resulted in an award against the employer that was nearly 20 times the actual amount owed. And in appealing that award, the employer's failure to file a required document designating the case as a limited civil case ended in an attorneys' fees award against the employer that otherwise might have been avoided.

Can you compel arbitration of PAGA lawsuits?

In a recent case, an appellate court considered whether an employer may compel arbitration of a Private Attorneys General Act (PAGA) lawsuit for wage and hour violations. The employer argued that the employee was attempting to make an "end run around arbitration" by incorrectly labeling his claims a PAGA matter. The appellate court, in turn, questioned whether the employer was attempting to make an end run around a demurrer (a motion to strike) by improperly using a motion to compel arbitration to challenge the employee's pleading defects.

Nurse unable to resuscitate retaliation and defamation claims

A registered nurse complained to hospital management about patient safety practices. The hospital fired her shortly afterward, allegedly for improper and dangerous patient care. The nurse sued for retaliation and defamation. In upholding the trial court's dismissal of her claims, the court of appeal found that her termination was based on legitimate nonretaliatory reasons. The court also rejected the nurse's defamation claims because the hospital's comments about her to the California Board of Registered Nursing (BRN) were absolutely privileged.

Woman fired for taking cake has discrimination claim

There are always two sides to a story of employment gone awry. When the two sides agree on all the important facts, a court may be able to dispose of the claim without a trial. But that is rarely the case on claims of employment discrimination, as illustrated by a recent decision of the 9th Circuit Court of Appeals (whose rulings apply to all California employers). The court found that a fired employee had raised sufficient questions about her employer's motivation to warrant a trial.

Attorney's comment to reporter not protected speech under First Amendment

Unlike with private-sector employees, the First Amendment to the U.S. Constitution sometimes protects public-sector workers from retaliation for exercising their free-speech rights. But not all public employee statements are constitutionally protected, as illustrated by a recent decision of the 9th Circuit.

How (not) to handle negative social media posts

Employers often wonder what to do in response to a negative social media post. The offending post could be an unfairly negative review on Yelp. Or it could be a rant by an ex-employee on the company's Facebook page. What to do in response (and what not to do) is a tricky question that has become more complicated by the recent passage of a new federal law.

Uber blogs its way through Teamsters campaign

When you think "union," you probably think of a federal system governed under the National Labor Relations Act (NLRA) by the National Labor Relations Board (NLRB). Under the Obama administration, the NLRB was the big kid on the block, extending its reach to every employer, unionized or not. But one defining feature limits even the NLRA: Unions cover employees—not independent contractors.

Union Activity

Union membership down in 2016. The U.S. Bureau of Labor Statistics (BLS) has reported that the union membership ratethe percent of wage and salary workers who were members of unions was 10.7% percent in 2016, down four-tenths of a percentage point from 2015. The number of wage and salary workers belonging to unionsat 14.6 million in 2016declined by 240,000 from 2015. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1%, and there were 17.7 million union workers. Highlights from the 2016 data show that public-sector workers had a union membership rate (34.4%) more than five times higher than that of private- sector workers (6.4%). Workers in education, training, and library occupations and in protective service occupations had the highest unionization rates (34.6% and 34.5%, respectively). New York continued to have the highest union membership rate (23.6%), while South Carolina continued to have the lowest (1.6%).

Commissioned employees entitled to separate pay for rest periods

Rest period violations are a source of enormous potential liability for employers, so it's critical to ensure that you are appropriately compensating employees for their rest periods. A California appellate court recently tackled the issue of whether commissioned employees are entitled to separate compensation for rest periods and whether that requirement may be satisfied by paying them a guaranteed minimum hourly rate as an advance on commissions.