California News & Analysis

Under California's discrimination laws, a prevailing employer may not be awarded attorneys' fees or costs "unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Does the same rule apply if an employee files an action in court and the employer successfully forces the employee into arbitration?

The Occupational Safety and Health Act's (OSH Act) General Duty Clause requires employers to provide a safe and healthful work environment for all covered workers, which includes protecting them against workplace violence. With many employees continuing to work remotely because of COVID-19, employers have let their guard down. But the physical, mental, and emotional stresses resulting from the pandemic mean you need to be prepared for conflicts now more than ever before.

DFEH launches effort to enforce Fair Chance Act. The California Department of Fair Employment and Housing (DFEH) has announced a new effort to identify and correct violations of the state's Fair Chance Act, which seeks to reduce barriers to employment for individuals with criminal histories. The DFEH is using technology to conduct mass searches of online job advertisements for statements that violate the law. In a one-day review, the department found over 500 job ads with unlawful statements that the employer wouldn't consider any job applicant with a criminal record. The DFEH is documenting those violations and sending notices to the employer to remove the unlawful statement. The department also is offering a toolkit of resources to assist employers in complying with the law. The Fair Chance Act generally prohibits employers with five or more employees from asking about a job applicant's conviction history before making a conditional job offer. The law requires employers to consider an applicant's criminal history on an individual basis as well as any mitigating information provided by the applicant.

Newspaper carriers classified as independent contractors sued the McClatchy Company for unfair competition based on a failure to reimburse them for business expenses under Labor Code Section 2802. After a bench trial, the court ruled for the newspaper on grounds the carriers had satisfied the requirements of the Employment Development Department (EDD) regulations governing independent contractors. The California Court of Appeal recently reversed and sent the case back for a new trial, holding the Borello test, not the EDD regulations, should govern the analysis.