California News & Analysis

  • $3.7 million compensatory damages award to Rite Aid store manager upheld

    In 2015, a Los Angeles jury awarded $8.7 million in compensatory and punitive damages to a store manager at Rite Aid Corporation. The award consisted of more than $3.7 million in compensatory damages and $5 million in punitive damages. Rite Aid appealed, with partial success.

  • CA leads the way on transgender issues, nonbinary gender designation

    Three bills addressing gender identity, gender expression, and sexual orientation were recently signed by Governor Jerry Brown. The bills, which have various effective dates, are detailed below.

  • County can't SLAPP away social worker's retaliation claim

    SLAPP is an acronym for "strategic lawsuit against public participation." California has a special procedure, referred to as the anti-SLAPP statute, that authorizes a trial court to strike a cause of action arising from a person's exercise of her constitutional rights to free speech or to petition for redress of grievances. The statute was enacted to discourage lawsuits brought primarily to chill, or dissuade, the valid exercise of those constitutional rights. Employers sometimes try to use the anti-SLAPP process in an attempt to get courts to dismiss First Amendment cases brought by employees. As the employer in the following case found out, however, it's the rare employment case in which this procedure can be used successfully.

  • Creative attempt to obtain consent to arbitration of a PAGA claim is flatly rejected

    Under California law, predispute agreements that require employees, as a condition of employment, to relinquish the right to assert a representative action under the Private Attorneys General Act of 2004 (PAGA) are unenforceable. On the other hand, postdispute agreements to arbitrate PAGA claims may be enforceable because at that point, an employee is represented by counsel and can weigh the pros and cons of proceeding in an arbitration forum rather than court. So what is the boundary between a "predispute" agreement and a "postdispute" agreement with respect to waivers of the right to assert a PAGA claim in court?

  • 9th Circuit rejects DOL's interpretation of 'tip-credit' reg

    The Fair Labor Standards Act (FLSA), the federal law that imposes minimum wage and overtime compensation requirements, permits employers to take a credit for minimum wage purposes for a portion of the tips received by employees who are engaged in an occupation in which they "customarily and regularly receive" tips totaling more than $30 a month.

  • NLRB didn't have to use new standard for deferring to arbitration awards

    What happens when a union-represented employee claims she was discharged because of her protected activities (such as being a zealous shop steward) and the company contends she was discharged for safety infractions and insubordination? What happens if the dispute is resolved in the company's favor by an arbitration award under the parties' collective bargaining agreement but the employee also files an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB)? Should the NLRB decide the case on the merits or "defer" to the arbitration decision and dismiss the charge?

  • More employers can claim contraception exemption under new rules

    The Department of Health and Human Services (HHS) announced recently that it was expanding the circumstances in which an employer can offer a group health plan that doesn't cover contraception. The action was taken in response to an Executive Order from President Donald Trump asking the agency to amend the contraception coverage regulations to promote religious liberty. New exemptions allow a wider range of employers to opt out of providing coverage for some or all types of contraception if they can demonstrate a religious or moral objection to doing so.

  • Bah hug-bum! Be alert for sexual harassment at the holiday party

    Every December we are asked about the do's and don'ts of holiday parties. You've read our general responses in articles like "6 tips for minimizing holiday party liability" (on pg. 1 of our December 7, 2015, issue). But the close of 2017 arrives with some special cautions. The whole world is watching the drama of workplace harassment, and the office holiday party might be the Super Bowl—often boring, but the one event in which almost everybody takes part. So here are some special points to keep in mind this year.

  • Is requiring confidentiality in workplace investigations passé?

    Can employers require employees who participate in personnel investigations to maintain confidentiality? Two key cases—one federal and one from the California Public Employment Relations Board (PERB)—have held that employers can't have a blanket rule requiring confidentiality in all instances. Because of these cases, many employers have altogether abandoned their prior policies requiring confidentiality. Others have settled on confidentiality admonitions that may not measure up to existing case law. Until the dust settles on this important area of personnel law, we suggest that a tailored, case-by-case approach to confidentiality admonitions is the best alternative.

  • Arbitration agreement deemed unconscionable beyond repair

    A terminated employee sued for discrimination, retaliation, and wrongful termination. The company asked the court to compel arbitration of the dispute. The trial court denied the request, finding the arbitration agreement to be procedurally and substantively unconscionable, and it refused to sever the offending provisions. The California Court of Appeal affirmed the decision.