NEWSLETTERS:

EMPLOYMENT MATTERS - Winter 2010 (PDF Download)

In this issue: Developments for 2010 Affecting California Employers

EMPLOYMENT MATTERS - Spring 2009 (PDF Download)

In this issue: More setbacks for class action waivers

EMPLOYMENT MATTERS - Winter 2008 (PDF Download)

In this issue: What's New for 2009 and Wage and Hour Update

EMPLOYMENT MATTERS - Autumn 2008 (PDF Download)

In this issue: California Supreme Court Holds That Non-Compete Agreements are Invalid Under California Business and Professions Code Section 16600

EMPLOYMENT MATTERS - Autumn 2007 (PDF Download)

In this issue: California Supreme Court Issues Three Important Decisions

EMPLOYMENT MATTERS - Spring 2007 (PDF Download)

In this issue: New U.S. Supreme Court and California Supreme Court Cases

EMPLOYMENT MATTERS - Winter 2007 (PDF Download)

In this issue: New California Laws and New San Francisco Laws

ARTICLES:

ROUNDUP OF DEVELOPMENTS FOR 2010 AFFECTING CALIFORNIA EMPLOYERS

COBRA Subsidy Extended: Our Spring 2009 Newsletter described in detail new obligations on employers to subsidize COBRA continuation coverage. Those obligations were amended by law on December 19, 2009.

As we reported in our Autumn 2008 Newsletter, the California Supreme Court held in Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008) that agreements restraining employees from competing with their former employers are invalid under section 16600 of the California Business and Professions Code unless they fall within a narrow statutory exception.

The recent California Supreme Court decision in Roby v. McKesson Corp. (Case No. S149752) provides both good and bad news for employers.

The Genetic Information Nondiscrimination Act (GINA) recently became effective. It is designed to prohibit the use of genetic information in decisions affecting health insurance and employment.

Confidential communications between attorneys and clients are privileged. But what about facts contained in those communications that are otherwise discoverable and relevant to a pending lawsuit?

On April 27, 2009, a California appellate court confirmed that principles of unconscionability can still be used to invalidate class action waivers.

In February, the Ninth Circuit took the unusual step of withdrawing one of its published opinions, Sullivan v. Oracle Corporation, 547 F.3d 1177 (9th Cir. 2008).

Employers have been given new COBRA obligations by the American Recovery and Reinvestment Act of 2009 (ARRA), enacted February 17, 2009. The new COBRA provisions are designed to reduce the cost of continuation coverage for individuals and families.

U.S. Citizenship and Immigration Services (CIS) announced new rules for verifying employment eligibility, the most significant of which bars employers from relying on any expired documents. The changes became effective on April 3, 2009.

Section 206.5 of the Labor Code, enacted in 1959, prohibits employers from requiring that their employees sign a release of claims in order to receive wages due. But what happens when the employer and employee disagree about the amount of wages due, or disagree about whether any wages are due at all?

As we reported in our Winter 2008 newsletter, the U.S. Department of Labor issued new Family and Medical Leave Act (FMLA) regulations.

Recent state legislation prohibits employers from requiring employees - as a condition of being paid - to sign a timesheet containing false statements of actual hours worked.

Another new law for the new year provides that temps must be paid for the current week's work on the regular pay day in the following calendar week. When an assignment is completed, the final wages for the assignment may also be paid on the regular pay day in the following week.

Congress has amended the Americans with Disabilities Act ("ADA") effective January 1, 2009. The amendments emphasize that the definition of "disability" should be interpreted broadly.

The U.S. Department of Labor (“DOL”) recently issued a new set of Family Medical Leave Act (“FMLA”) regulations that take effect on January 16, 2009.

Businesses with employees who work in San Francisco (but who are not necessarily based in San Francisco), and that are subject to the Health Care Security Ordinance ("HCSO"), must make health care expenditures on behalf of employees who are covered by the San Francisco legislation.

Another change for San Francisco employers is that the City's minimum wage increases, on January 1, 2009, from $9.14 per hour to $9.79 per hour.

Earlier this year, in Brinker Restaurant Corporation v. Superior Court, a California Court of Appeal concluded that "employers need only make meal breaks available, not ‘ensure’ they are taken." Brinker specifically noted that public policy does not support the notion that employers must "ensure" that meal periods are taken.

If an employee resides outside California but occasionally performs work in California, is the employee subject to California's overtime laws when working in California or to the overtime laws of his home state? According to the 9th Circuit, California law applies.

In a much-anticipated ruling in Edwards v. Arthur Andersen, No. S141790 (Aug. 7, 2008), the California Supreme Court held that non-compete agreements are invalid under California Business and Professions Code section 16600 ("Section 16600"), unless they fall within a narrow statutory exception.

In April, the California Supreme Court held that (1) an employee's performance of a similar job for another employer, after she had requested CFRA leave from her first employer, was not conclusive evidence that the employee did not have a serious health condition under CFRA, and (2) an employer is not required to obtain the opinion of a health care provider jointly chosen by the employer and the employee in order to challenge an employee's CFRA certification.

California law governing pay for temporary employees will change on January 1, 2009. The new law will end the uncertainty regarding the potential application of the California Supreme Court decision in Smith v. L’Oreal to the temporary services industry.

Recently, the Ninth Circuit Court of Appeals held that a text-message provider violated a federal statute by disclosing to the employer sexually explicit text messages sent by an employee using an employer-owned text message/pager.

In Brinker Restaurant Corporation v. Superior Court of San Diego (Hohnbaum), a purported class of approximately 59,000 hourly restaurant employees, including servers, hosts, bartenders, dishwashers and cooks, sued their employer for unpaid wages and penalties, alleging that the employer had corporate policies of improper early meals, time shaving, failing to provide meal and rest period breaks, and forcing off-the-clock work.

The Ninth Circuit is scheduled to hear oral argument on employers' challenge to the San Francisco Ordinance on April 17, 2008. Meanwhile, the Ordinance remains in effect and some employers must make their required first quarter health care expenditures by April 30, 2008.

The California Supreme Court ruled in Jones v. The Lodge At Torrey Pines Partnership that individuals cannot be held personally liable for retaliation under the Fair Employment and Housing Act (“FEHA”).

In addition to a new year, January 1, 2008 also brings new California state and municipal minimum wage requirements.

In 2006, the San Francisco Board of Supervisors passed, and the Mayor signed into law, the San Francisco Health Care Security Ordinance (“HCSO”).

On November 7, 2007, USCIS issued a revised Form I-9, the Employment Eligibility Verification Form. The most significant change to the Form is the elimination of five documents from List A of Acceptable Documents.

On November 5, 2007, the California Supreme Court decided Gattuso v. Harte-Hanks Shoppers, Inc., ruling that employers can satisfy their duty to indemnify employees for all necessary business expenses under Labor Code Section 2802 by paying increased wages or commissions, rather than by separately reimbursing actual expenses.

In a ruling that will disappoint many employers, the California Supreme Court held that class action waivers in pre-employment arbitration agreements are not enforceable if a class action would be a "significantly more effective way of vindicating the rights of affected employees" than individual arbitration or litigation.

Bringing California law into line with the federal Americans with Disabilities Act, the California Supreme Court ruled that the California Fair Employment and Housing Act requires plaintiffs alleging disability discrimination to prove that they are qualified individuals," capable of performing the essential functions of a position.

The California Supreme Court has upheld an employer's profit-based incentive plan.

Caregiver discrimination has become a prominent issue in the workplace, particularly as women, who continue to act as primary caregiver for both children and elders, now comprise nearly half of the national labor force.

The federal minimum wage will increase to $5.85 per hour on July 24, 2007.

The California Supreme Court has held that meal period premiums are “wages,” not penalties.

A California Court of Appeal recently held that an employer was not entitled to summary judgment on an employee’s claim under the California Family Rights Act (“CFRA”) where the employer failed to show that it posted a notice or otherwise informed the employee of his rights under CFRA.

The Ninth Circuit recently allowed one employer to go forward with claims against another employer based only on the competing employer’s alleged intentional interference with employment contracts.

Employers had a victory this month when the U.S. Supreme Court ruled that a plaintiff must file her complaint with the EEOC within 180 days (or 300 days in California) after a discrete act of alleged intentional discrimination occurred.

California courts recently issued two decisions favorable to employers in defending disability discrimination/harassment cases brought under the California Fair Employment and Housing Act (“FEHA”).

California State Assembly rejects four-day workweek.

Two recent federal cases reinforce that federal law is more lenient regarding managers being exempt from overtime requirements.

Changes to union elections provisions pending in Washington, D.C.

The DLSE has published a set of proposed regulations that are intended to clarify the requirements of Labor Law section 2802 as they relate to travel expenses.

On November 7, 2006, San Francisco voters approved Measure F, a city ordinance that requires employers to provide paid sick leave to all employees who work in the geographic boundaries of San Francisco. The ordinance takes effect February 5, 2007.

Certain provisions of the California Labor Code impose strict requirements for the timely payment of wages.

Effective January 1, 2007, section 515.8 has been added to the California Labor Code.

Under a 2004 state law, all employers with 50 or more employees are required to provide supervisors with at least two hours of interactive, classroom training on the subject of sexual harassment.

The California Labor Code requires that terminated employees be paid all of their earned wages (including accrued and unused vacation) at the time of termination.

A recent California Supreme Court decision confirms that the use of the term "at will" in an employment contract normally conveys an intent that employment may be ended by either party at any time without cause.

The California Supreme Court recently had occasion to interpret California's wage payment laws in the context of temporary employment.

The California Penal Code makes it unlawful to record a telephone conversation without the knowledge or consent of all parties to the conversation.

The California Supreme Court recently held that the use of sexually coarse and vulgar language in the workplace does not necessarily constitute sexual harassment under the California Fair Employment and Housing Act ("FEHA").

It has long been the law in California that an employee claiming retaliation is required to prove all of the following: (a) that she engaged in protected activity, (b) that she was subjected to an adverse employment action, and (c) that there is a causal link between the protected activity and the adverse action.