California News & Analysis

  • Employer may need to pay employees for time spent driving

    A California appellate court recently determined that a lower court shouldn't have accepted an employer's argument that certain employees didn't have to be paid for their commuting time to the first job of the day or for their drive home at the end of the day. Rather, the court of appeal stated there were factual disputes that precluded the dismissal of the employees' wage and hour claims without a trial.

  • The relative benefits of advisory arbitration

    In late June 2020, California's 5th District Court of Appeal overturned an arbitrator's advisory decision in favor of two deputy sheriffs and their union in a contractual dispute arising under a memorandum of understanding (MOU) between the county and the union. The dispute centered on the county's decision to remove the deputies from "specialty assignments" as detectives. The labor law principles the case stands for are not groundbreaking. However, the fact that the arbitration was advisory—rather than binding—is noteworthy because of the stark differences between those two forms of arbitration. Indeed, the national debate raging over police accountability is perhaps the most striking contemporary example of how the impact of those differences can play out in labor, personnel, and employment law.

  • 5 trade secret protection risks to consider during pandemic

    In light of the COVID-19 outbreak, companies have changed their core business operations and instituted new practices and procedures in the blink of an eye. The changes, perhaps unknowingly, have created risks that could jeopardize the protection of valuable trade secrets. A trade secret, as defined by the Uniform Trade Secrets Act (UTSA), is information that derives independent economic value from not being generally known or readily ascertainable by others and that is the subject of reasonable efforts under the circumstances to maintain its secrecy. Here are five ways the pandemic and its effects could threaten trade secret protection.

  • Is John Roberts the new Anthony Kennedy?

    Every four years, I address in this column the need for the U.S. Supreme Court to stay above presidential politics. The Supreme Court can play its role in the balance of powers doctrine only if it remains apolitical. In today's polarized political environment, that's difficult to do. For better or worse, one saving grace is that Supreme Court justices get a lifetime appointment at the top of their profession, so they don't need any more political favors from anyone. As a result, the justices sometimes abandon the ideological position that got them appointed and become the kind of justices they want history to remember them as. For instance, the leader of the liberal Warren Court was a Republican governor appointed by President Dwight D. Eisenhower.

  • California News in Brief

    Cisco accused of caste-based discrimination. On June 30, the California Department of Fair Employment and Housing (DFEH) filed a federal lawsuit under Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act against Cisco Systems, Inc. The DFEH alleges that two managers at Cisco's San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the "untouchables" under India's centuries-old caste system.

  • 4 observations for employers in wake of Supreme Court's LGBTQ ruling

    Since the civil rights movement of the 1960s, state and federal laws have been enacted prohibiting employment discrimination against individuals on the basis of race, ethnicity, age, disability, religion, and gender. Until recently, very few laws covered discrimination based on sexual orientation or gender identity. As the treatment of individuals based on their sexuality moved to the forefront, that started to change. Several states, including Utah, and certain federal government agencies, including the Equal Employment Opportunity Commission (EEOC), promulgated laws and rules prohibiting discrimination based on sexual orientation or gender identity.

  • California News in Brief

    Court order sought against Uber and Lyft. The California Attorney General and the city attorneys of Los Angeles, San Diego, and San Francisco announced on June 24 that they would file a preliminary injunction request to require Uber and Lyft to stop classifying their drivers as independent contractors. The state attorney general and the city attorneys already had filed a lawsuit alleging Uber and Lyft were misclassifying drivers, thereby depriving them of critical workplace protections, such as the right to minimum wage and overtime and access to paid sick leave, disability insurance, and unemployment insurance. A statement from Attorney General Xavier Becerra said misclassification of employees as contractors often results in workers being significantly more likely to draw on government-funded income supports, "leaving taxpayers to foot the bill in lieu of big business."

  • The road to police reform is paved with bargaining

    As the country's reactions to George Floyd's murder evolve from pure horror to specific calls for change, a central theme of the dialogue is the role police unions have had in advocating measures that reduce transparency, block reform efforts, defend officers accused of serious misconduct, and, in general, promote an aggressive law enforcement culture. There have been and will be state and federal legislative solutions to those historical problems. But the path to police reform also will inevitably involve bargainingor at least meeting and conferringwith police unions.

  • Court rejects 'Three Musketeers' approach to enforcing arbitration agreements

    This case presents a rather uncommon situation. A former employee of an auto dealership sued the dealership and all the entities affiliated with it. The employee and the dealership have an enforceable arbitration agreement. The affiliated entities are not parties to the arbitration agreement, but they attempted to enforce it anyway. A California appellate court recently ruled that the entities cannot enforce the agreement because the employee never agreed to arbitrate with them.

  • HBO's Insecure might need to compensate Issa's unpaid intern

    If you've watched HBO's hit Insecure, you may be wondering how Issa's "intern" is being compensated. The TV show provides a good jumping-off point for considering the issues faced by employers that don't pay interns.