Header graphic for print

California Employment Law

Commentary on Issues Facing California Employers

Why Would College Athletes Want To Be Union Anyway?

Posted in Labor law

What’s missing from the rash of news reports and blog posts about the NLRB’s ruling allowing scholarship football players at Northwestern to vote on whether to join a union is an explanation of why the athletes want a union.

When we train employers on how to stay non-union, we focus on two things: fair compensation and appreciation of work done. Apparently, the NCAA rules allow for neither, and that is the problem.

I was surprised to read that the players don’t necessarily want to be paid as employees. What they want is to be guaranteed a spot at the school with paid tuition until they graduate, or perhaps some incentives by the schools to get them to complete their educations. Apparently they are also hungry and the rules limit how much food the schools can provide. They want medical coverage for sports related injuries, especially those that might last way after their school years end.

They also have safety concerns, including better procedures to reduce head injuries. They want to stay at school if they are injured or their sports-career is not successful. And finally, they would also like to be able to pursue commercial sponsorships much like Olympic athletes do, to cash in on their “15-minutes” of fame and defray some of the costs associated with sports. For example, college athletes do not have time to get part-time jobs and many sports have NCAA rules that actually prevent them from doing so.

What these athletes want is pretty darn reasonable, and right now they don’t have a seat at the table to get the issues addressed in any significant way. They feel used and abused, and that is always a problem.

Is a union the answer to these real issues? Most of the pundits say no. And the slippery slope of finding student athletes to be employees is a steep one. But should the NCAA rules be revised to address some of these issues? You bet. That is a point everyone seems to agree on.

The Future of Class Action Waivers in California Employment Cases to be Decided This Summer

Posted in Class Actions

On April 3, 2014, the California Supreme Court heard oral argument in front of a packed courtroom in Iskanian v. CLS Transportation, a case involving the enforceability of class/representative action waivers in employment arbitration agreements under California law.  This is a very important decision for employers in California, and one that is very close to us at Fox Rothschild, since our own David Faustman argued the case.

At issue is whether the Court will follow the US Supreme Court’s lead and put the “Gentry” test to rest for good.  Overruling “Gentry” will allow employers to include class action waivers in their employment arbitration agreements, and will not force them to arbitrate on a class-wide basis unless they specifically agree to.  Another important issue is whether representative claims under PAGA can also be waived.

This case has a big practical impact for employers in California.  There is nothing that takes the wind out a plaintiff’s attorneys’ sails than being presented with a signed arbitration agreement (one that is not unconscionable under California law), and that includes a class action and representative action waiver.  Most attorneys do not want to take on this issue and would rather look for an easier target.  Let’s hope that the California Supreme Court gets it right, and holds that such waivers are fully enforceable.  A decision by the California Supreme Court should be issued this summer.  Stay tuned.


You Want Me to Pay for That? How to Avoid Wage Claims for Unpaid Expenses

Posted in Wage and Hour

Every wage claim I see includes a claim for unpaid expenses. California law requires employers to reimburse employees for expenses incurred during employment, even if those expenses were not pre-approved. Such expenses often include travel costs (such as hotels and meals), mileage for car travel, telephone usage, data plans, supplies, and the like.

There are two related questions that often arise in my practice, and neither has a clear answer.

First, what expenses are covered?

  • The employee uses a bicycle to run work errands. How is the employer supposed to reimburse the employee for bike mileage or wear-and-tear?
  • The employee stops at the post office or UPS drop something off on the way home; is that mileage reimbursable if on the way home anyway?
  • The employee purchases a headset for her own office use, but she did not get the required approval for the purchase, yet she has already used it and insists she needs it.
  • The employee uses her own smartphone to check her work schedules, or her Internet to log her time from home, or her cell phone to take calls from her supervisor — is any portion of her monthly data pack or minute allowance reimbursable? How much personal phone or computer usage time crosses the de minimis threshold and must be reimbursed?

Second, how can an employer protect itself from wage claims involving expenses?

  • The first step is a handbook policy clearly setting forth that employees should get all expenses pre-approved and submit them for reimbursement within 30 days. Consider adding some examples of non-obvious types of expenses that might be reimbursable, such as phone minutes used for work, or a portion of a data package if employees are expected to use their own devices.
  • Another step is to prevent employees from running errands or making stops on the way to or from the office (even if they offer and are trying to be helpful). This is especially important for non-exempt employees, because not only will you have an expense problem but you will also have an “off-the-clock” and possible overtime problem.
  • On the issue of technology or device usage, a clear policy setting forth expectations of any Bring Your Own Device (BYOD) protocol, including what portions of device usage are expected and reimbursable, is critical.
  • A final step is raising the issue of expense reimbursement at the exit interview (or on your exit checklist) and confirming that all expenses have been submitted for reimbursement.

With these steps at least the employer has a clear policy, has thoughtfully anticipated issues, and if the policy is not followed, has some defense to a claim for unpaid expenses.


San Francisco “Ban the Box” Notice Available for Posting

Posted in Discrimination

Starting August 13, 2014, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in San Francisco certain questions about prior convictions. I explained what inquiries are prohibited here.

Now the Office of Labor Standards Enforcement (which will enforce the Fair Chance Ordinance) has issued the English version of the notice that employers must display in a conspicuous place at “every workplace. job site, or other location in San Francisco under the Employer’s control frequently visited by their employees or applicants.” Employers must also “send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding that is applicable to employees in San Francisco.”

Employers must post the notice in each language that is spoken by more than 5% of their workers at that site. The OLSE will hopefully make foreign language versions available before the August 13, 2014 deadline. Finally, employers must give a copy of the notice to an applicant before asking about prior convictions.

We’ll continue to update you as new information becomes available.

Jailhouse Bird

The Champions of Diversity Challenge — Support Urban Debate

Posted in Articles

The Bay Area Urban Debate League (“BAUDL”) is a debate mentoring program that currently serves 14 Bay Area schools and over 400 students. Studies show that these programs improve literacy, GPA, graduation rates, and provide a host of other direct benefits to the participants, their schools, and the community.

Fox Rothschild LLP is proud to be among 14 prominent law firms competing in BAUDL’s “Champions of Diversity” fundraising campaign. The initial round is this week, ending Friday, March 28th, during which the firms will compete to see which firm can raise the most money and the most money per attorney in their Bay Area office(s). There will then be a second round among the top three finalists. The winner gets a full-page ad.

You can find updated results here and, if you’re moved to give, you can do so on behalf of your my favorite law firm here. Every bit helps and it’s a very worthy cause.

Dealing with the Terminated Employee’s Emotions

Posted in Employment Litigation

People identify with their jobs. Ask someone what they do and they’ll just assume you’re asking what their job is. They may spend more time sleeping than working. They may even spend work time sleeping. But no one ever responds to “What do you do?” with “I sleep.”

So it’s no surprise that some people react poorly to being terminated. However, the recently fired head of the Pacifica Foundation, which runs several radio stations (including public radio station KPFA in Berkeley) is not going away peacefully. In fact, as reported in the Mercury News, she cut the locks and barricaded herself in her old office. This occurred on March 17, 2014, four days after the foundation’s board voted to fire Summer Reese. At that point, she was one month into her tenure as Executive Director (although she’d previously held the position on an interim basis.) She is joined by her mother and other supporters and, as far as I can tell, they’re still there.

There are important lessons here for people who have to inform employees that they’re being terminated. You really can’t predict how they’re going to react, but you should expect them to be emotional. Emotional people don’t always think clearly. That means you may have to explain things more than once. You don’t want them leaving without a clear understanding of the basis for the decision. (At the same time, you don’t want to say something to make the situation worse.)

You also need to stay calm yourself and be prepared to diffuse tense situations. Or if you can’t diffuse the situation, you need to remove yourself and get assistance, which may be someone from security, human resources, or, if storming the barricades is necessary, the military.


California Supreme Court Agrees to Clarify Suitable Seating Requirements

Posted in Class Actions, Wage and Hour

We’ve been writing about suitable seating since some of you were in high chairs (OK, since 2010). The issue arises from language in most of the California Wage Orders saying that: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

I don’t begrudge people wanting to sit down. Heck, I’m sitting down right now. When I’m done here, I’m going to sit in my car and go home and sit some more there. So believe me, I’ve got nothing agains sitting.

I do, however, have a problem with employers getting sued for failing to comply with laws that no one knows the meaning of. Last November, the Ninth Circuit Court of Appeal asked the California Supreme Court to clarify what “suitable seats,” “nature of the work,” and “reasonably permits” mean in this context. On March 12, 2014, the California Supreme Court agreed to do so. Not right this second, but eventually. Until then, take a seat.

Adirondack chairs at lake shore

Yet Another Accolade for Your Favorite Employment Law Blog

Posted in Articles

Nancy Yaffe’s post entitled “Want to Get Sued? Fire Someone and Say ‘You Aren’t the Right Fit’” was named by Mondaq as their Most Popular Article in the United States for January 2014. Careful readers will recall that we won the same award last October for our post “8 Things You Should Never Say in a Termination Meeting.”

In the spirit of the award season, Nancy and I would like to thank our readers for continuing to follow our blog, even when we occasionally lapse into shameless self-promotion and bask in our unprecedented popularity.


San Francisco Bans the Box – Hiring Employees with Conviction (Part 3)

Posted in Discrimination, Employment Litigation

San Francisco’s new “Ban the Box” ordinance takes effect on August 13, 2014. On that date, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in SF questions about:

  • An arrest that didn’t lead to conviction (they can ask about unresolved arrests, i.e. those that are the subject of an active pending criminal investigation or trial);
  • Participation in diversion or deferral of judgment programs;
  • Convictions that have been “judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative;”
  • Juvenile convictions;
  • Convictions that are more than 7 years old; or
  • Convictions for offenses that are not felonies or misdemeanors, e.g. infractions.

The ordinance prohibits any inquiry about criminal history at the beginning of the hiring process, including on job applications. Employers can only ask for this information after a “live interview” (which can be by phone) or after a conditional job offer’s been made. The Office of Labor Standards Enforcement will also be creating a notice that employers must provide the applicant before any such inquiry and a notice employers must post.

If the employer does obtain information about a conviction or unresolved arrest, it can only use the information if it’s directly related to the job and it considers mitigating factors. There are also specified procedures for giving the applicant notice of a proposed adverse action and letting him or her provide information in response.

During the first year the ordinance is in effect, the OLSE can only issue warnings and notices to correct. After that, a first violation will result in a warning, there will be  a $50 penalty for a second violation, and a $100 penalty for each violation thereafter. Only the OLSE can bring a claim. There is no private right of action.

For those of you keeping score at home, businesses choosing to locate in SF now face the highest minimum wage, a paid sick leave ordinance, a Family Friendly Workplace Ordinance, and requirements for commuter benefits and per-employee spending on health care. Is the goal to drive businesses out completely?

DFEH Director Says Fake Service Animals Are a Real Problem

Posted in Disability discrimination, Discrimination

Businesses have been dealing for years with the hassles of accommodating customers and employees with service animals. The problem isn’t people who legitimately need the assistance. No one begrudges a blind person the right to a guide dog. But service animals can be used for a wide variety of issues, ranging from a miniature horse pulling a wheelchair  to animals that provide “emotional or other support.” To compound the problem, businesses can’t ask customers for any type of proof that there’s a legitimate need for the animal — as opposed to someone just wanting their beloved pet with them at all times.

Now Phyllis Cheng, who directs California’s Department of Fair Employment and Housing, has joined the chorus of those saying that there should be a way to verify that an animal provides legitimate assistance with a disability. Is she saying this because she’s sympathetic to the burdens placed on businesses? No, the concern is that people who legitimately need service animals are being met with suspicion and that makes them uncomfortable.

Whatever the reason, the law needs to change. If someone needs a service animal, they should absolutely get to use one. But everyone acknowledges that the law’s being abused. For the time being, as we’ve said before, business owners need to train their employees on what they can and can’t do in these situations. They can ask whether the animal is a service animal and what it’s trained to do. And that’s it. Employers do get to ask for certification for their employees’ animals and impose certain requirements. However, any further inquiry can itself be a violation of the Americans With Disabilities Act and other laws.

Cute baby