News & Analysis

California Supreme Court: Whistleblower has no right to jury trial

On April 10, 2017, the California Supreme Court addressed the issue of whether an employee has the right to a jury trial in a whistleblower claim under Health and Safety Code Section 1287.5 (g). The supreme court ruled that there is no right to a jury trial under Section 1278.5(g), but an employee can still obtain a jury trial on a claim that the underlying public policy was violated.

Employee's drug-induced mentally altered state doesn't nullify voluntary resignation

A former employee sued her employer under the California Fair Employment and Housing Act (FEHA) for violations of public policy after her request to rescind her resignation—made while her mental state was altered—was declined. Even if the former employee suffered a disability under the FEHA, the employer's decision didn't constitute an adverse employment action because it occurred after her employment had ended, and her resignation was free of employer coercion or misconduct. Furthermore, the former employee failed to place her employer on notice of her disability or request any accommodation before she resigned.

Underwear: the gift that kept on giving

An employee's claim of wrongful termination in violation of public policy failed mid-trial because he lacked evidence to support his case and there was undisputed evidence that he was an at-will employee who gifted underwear to his female coworker.

Employer can enforce arbitration agreement after appeal

How bad does an arbitration agreement have to be in order to be deemed unenforceable? In a recent unpublished opinion, the California Court of Appeal found one term of an employment arbitration agreement unconscionable (i.e., the provision allowing only the employer to seek equitable or injunctive relief) and noted that the provision could be severed from the agreement under the Federal Arbitration Act (FAA). As a result, the court of appeal reversed the trial court's order denying the employer's request to compel arbitration and sent the case back to the lower court with directions to sever the offending provision and otherwise enforce the agreement to arbitrate.

9th Circuit green-lights cable installers' overtime claims

Overtime pay under the federal Fair Labor Standards Act (FLSA)—and many state laws—is calculated at time and a half a worker's regular hourly rate. But if the formula used to calculate the regular rate undervalues a component of worker pay when overtime is worked, the employer may be in violation. That's the lesson from a recent decision of the U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers).

9th Circuit broadly interprets whistleblower protections

Does an employee become a "whistleblower" merely by reporting possible securities law violations to his employer, or does he have to take the concern to the Securities and Exchange Commission (SEC)? The answer to that question matters—because the antiretaliation provisions of the federal Dodd-Frank Act (DFA) extend only to employees who have engaged in whistleblowing as defined in the statute. The 9th Circuit recently decided that the DFA protects not only workers who go to the SEC but also those who register their concerns internally.

Do I have to pay my summer help? Avoiding FLSA liability for internships

With summer almost upon us, many companies will be hiring college and high-school students to work as interns. Often, employers pay interns only a small stipend or don't pay them at all. It may make good business sense not to pay interns because they usually aren't bringing the same experience, skill, and expertise to the job that regular employees provide. For interns, the opportunity to gain practical experience, build a relationship, and pad their résumé is often more valuable than any compensation they might earn. Unfortunately, the issue isn't that simple.

Union Activity

AFL-CIO launches national good jobs campaign. The AFL-CIO Executive Council announced in March that it was launching a national good jobs campaign to call out corporations that ship jobs overseas and to bring attention to other issues. As part of the campaign, the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union has been leading a campaign to keep Nabisco jobs in the United States. It has called for an ongoing boycott to urge consumers to buy Nabisco products made in the United States and to reject Nabisco products made in Mexico. In addition to the Nabisco boycott, the campaign includes working to enact the Miners Protection Act of 2017, which addresses healthcare benefits for retired coal miners whose companies have declared bankruptcy.
Government employees union calls for review of contractor spending. The national president of the American Federation of Government Employees union has called on the federal government to review spending on service contractors. J. David Cox Sr. made his statement in response to an Executive Order from President Donald Trump calling for a top-to-bottom review of the executive branch. The federal government has two workforces: civilian federal employees and contractors, Cox said. The contractor workforce has grown massively over the past two decades. Each year, the government spends more than twice as much on service contractors as it does on its own workforce. Cox went on to say that getting a handle on what contractors are doing and what they are charging should be the first priority in any governmentwide review of operational efficiency.

Workplace Trends

Survey finds staff conflicts monopolizing bosses time. A survey from financial staffing firm Accountemps has found that CFOs say they spend, on average, 15% of their time managing staff conflicts. Its unrealistic to expect workers to get along all the time. But not every issue needs to be escalated to management, Mike Steinitz, Accountemps executive director, says. Accountemps suggests four ways for employees to handle work conflicts: (1) Show empathy and try to understand the situation from a coworkers perspective, (2) act fast since conflicts allowed to fester can disrupt others, (3) bring in a third party such as a manager or an HR representative who can recommend a productive way forward, and (4) dont hold a grudge.

Kicked back: Court allows retaliation claim to move forward

The U.S. 8th Circuit Court of Appeals (whose rulings apply to all Arkansas employers) recently reversed and sent back an Arkansas district court's dismissal of an Arkansas Department of Human Services (DHS) employee's complaint for retaliation even though it affirmed the district court's dismissal of the employee's discrimination claim.