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California Employment Law

Commentary on Issues Facing California Employers

Should Employment Lawyers Advise Clients on Workplace Violence Issues?

Posted in Advice & Counseling

If you advise employers, then you’re probably used to giving advice that derives more from good HR practices than from what the law requires. However, does that extend to advising clients how to avoid or address potential workplace violence situations? Obviously we want to protect our clients. But do we have the knowledge to identify and respond to these situations or is that better left to law enforcement and security companies?

I believe that we have an obligation to identify for our clients situations that put them at risk. While there’s no single profile for workers who turn violent, factors that frequently turn up are obsession over perceived wrongs, unusual changes in behavior, and excessive thoughts about violence. Unfortunately, those factors also show up in people who never do any harm. So what do we do?

When I see a situation that concerns me, I tell the client that I don’t have any special insight or training in identifying these behaviors, but this seems like a situation where they may want to talk to the police and/or whomever provides their workplace security. Of course, clients also need legal advice in these situations, such as the extent of their right to search employees’ persons, vehicles, or work areas; what information they can disclose to others without violating privacy rights; and sometimes whether and how to get an injunction. And who better to provide that advice than their employment lawyers?

If you have other thoughts on how to handle these situations, I welcome your comments.


Before Terminating an Employee, Ask “Why Now?”

Posted in Advice & Counseling, Employment Litigation, Termination

One of this blog’s most popular posts has been 24 Questions to Ask Before Terminating an Employee. Here’s another question to ask: Why now?

One way that employees and their lawyers attack the employer’s justification for the termination is to question the timing. Why wasn’t the decision made closer in time to the event the employer complains about? Why wasn’t it made after an earlier, more egregious occurrence?

If the termination gets challenged, the employee and his or her lawyer will have months to come up with holes in the employer’s rationale for terminating. So it’s important for employers and their counsel to give serious thought to how their justification will withstand that scrutiny. Therefore, add “Why now?” to my earlier list of questions to ask before terminating.

Practicing Employment Law: The Key to Happiness

Posted in Employment Litigation

Writing for a legal blog, I don’t get many chances to write about the key to happiness. There was this post about the state constitutional right to happiness, but that was five years ago. I may start writing about happiness a lot more after reading this item by Aaron Vehling at Law360 titled: Employment Attorneys The Happiest Lawyers Around (subscription required).

We work just as hard and tend to make less money than many other specialties. So what gives? The “experts” consulted for the article attributed our gleefulness to the fact that our work is meaningful, steady, and stimulating. You may disagree, but you aren’t a happiness expert now, are you?

There will, of course, be cynics who point out that the poll and the article don’t say that practicing employment law causes happiness. Others will point out that the survey included only 300 lawyers and 45 employment lawyers, which seems like a pretty small sample to support sweeping generalizations about who is or isn’t happy. But trust me, those are some pretty unhappy people raising those objections. I don’t even want to think about what areas they practice in.



Comparing California State and Local Paid Sick Leave Laws

Posted in Advice & Counseling, Wage and Hour

At this point, California has a statewide Paid Sick Leave Law and so do three cities: San Francisco, Oakland, and Emeryville. There are additional local ordinances that apply only to hotel workers, like Long Beach’s Measure N and Los Angeles’s Citywide Hotel Worker Minimum Wage Ordinance. But the state law and the municipal laws in SF, Oakland, and Emeryville apply to employees generally.

How do those laws compare? The answer’s complicated. But our own Tyreen Torner has created this handy chart comparing the laws on more than 20 25318124_sdifferent criteria. This is the same Tyreen Torner who drafted a summary of San Francisco’s various employment requirements. The comparison chart is a useful tool for anyone trying to comply with the competing requirements of these various jurisdictions. And it’s yours absolutely free!

Be One of Our ABA Blawg 100 Amici!

Posted in Articles

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2015 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the California Employment Law blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

Governor Brown Withdraws Labor Code Protection for Extra-Terrestrials

Posted in Advice & Counseling, Discrimination

In a mostly symbolic gesture, Governor Jerry Brown signed legislation yesterday to remove the definition of “alien” from the Labor Code. Presently, Labor Code section 1725 states:

“Alien” means any person who is not a born or fully naturalized citizen of the United States.

Senate Bill 432 repeals that statute. I say the step is symbolic because the term “alien” rarely appears in the Labor Code. The only substantive effect would be on a statute (Labor Code section 2015) that gave preference for certain public works jobs first to California residents, then to other states’ residents living in California, and lastly to “aliens.” But SB 432 repeals that section, too.

I have no objection to removing statutory terms that cause people offense. But if we ranked areas of California labor law where employers were in dire need of clarification, I don’t think this one makes the list. Besides, I would hate it if extra-terrestrial beings, who aren’t as familiar with our legislative process, misinterpreted this as a sign of aggression.

7 Pointers For Preparing Management Witnesses for Deposition

Posted in Employment Litigation

There’s some advice that we all tell our witnesses when we prepare them for deposition. Tell the truth; only answer the specific question; don’t guess; etc. Here are some other pointers you should include, if you don’t already.

  • You will be asked a lot of questions that you don’t know or don’t remember the answer to. Don’t feel bad about that. Less experienced witnesses sometimes beat themselves up because they think they sound stupid. There’s no reason to.
  • A question asked in an accusatory tone doesn’t mean that you did anything wrong.

  • Normally when someone asks you a question, it’s because they don’t know the answer. Depositions are different. Assume the person asking the question already knows the answer.
  • No matter what you feel about the attorney deposing you, be polite and control your emotions. In determining what the case is worth, the other attorney wants to know how easily you can be portrayed as someone who is unreasonable or unprofessional. Emotional outbursts, condescension, and sarcasm will lead him or her to decide the case has more value.
  • If you don’t actually create HR policies, don’t say that you did. It can have serious implications in terms of punitive damages.
  • Be prepared to answer these questions:
    • If you had it to do over again, would you do anything differently?
    • What grade would you give yourself for how you handled this situation?
  • It’s possible that, during the deposition, the attorneys will have one or more heated exchanges. Don’t think it means you did something wrong or something bad happened. It’s just what we do.

Also remember that all the pointers in the world won’t take the place of subjecting your own witness to probing cross-examination. It’s a great compliment when they tell you that the prep session was harder than the actual deposition.

Do you have any unique pointers that you use and are willing to share? If so, add a comment below.

Are Your Employment Policies Keeping Up With Technology?

Posted in Advice & Counseling

While technology makes many tasks faster and easier, it can also create headaches for employers. Keeping up with technological advances and how they effect the workplace could be a full-time job in itself. Fortunately, Cathy Barbieri at the Tech in the Workplace blog is doing that for you.

Her most recent posts discuss the perils of Bring-Your-Own-Device Policies and the challenges presented by wearable technology. Applying 20th century laws to 21st century technology will continue to present difficult challenges. The sooner you get a handle on them, the better.

Where Things Stand Now With Suitable Seating Claims

Posted in Advice & Counseling, Class Actions, Wage and Hour

Most of the California Wage Orders say that: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The problem with that requirement is that no one knows how to define “suitable seats,” “nature of work,” and “reasonably permits.”

As we wrote in March 2014, the Ninth Circuit Court of Appeal had some suitable seating class action cases when it asked the California Supreme Court to clarify what those terms mean. Then last week, as reported in Law360 (subscription), the California Supreme Court invited the Division of Labor Standards Enforcement to file by August 21, 2015 an amicus brief expressing its view on how to define those terms. After that, the parties will have 20 days to respond.

The only thing that’s remotely close to clear at this point is that California employers are facing class action exposure for not following a law that no one knows how to follow. Employers who don’t provide seats for employees should consider doing so if it’s feasible given the job and work environment. On the other hand, given studies showing that sitting is bad for you, it’s may be just a matter of time before employees start suing employers for making them sit.

Happy 25th Birthday Americans With Disabilities Act. Now Go Find a Job.

Posted in Advice & Counseling, Disability Discrimination, Employment Litigation

July 26, 2015 will mark 25 years since George H.W. Bush signed the Americans With Disabilities Act. Has the ADA behaved like many 25 year olds by moving to Brooklyn and refusing to compromise its creativity and individuality to find a job that it’s sure it will hate? Is it sprawled out in front of the TV, drinking your beer and scowling when you gently question its grooming choices? No. It’s been working since its infancy to help people with disabilities participate meaningfully in the workforce and society, in general.

President Bush acknowledged at the signing ceremony the concern “that the ADA may be too vague or too costly, or may lead endlessly to litigation.” The concern was justified. Last year, 28.6% of all charges filed with the EEOC included claims of disability discrimination. Employers wanting to avoid becoming part of that statistic need to understand the following:

  • The breadth of impairments that qualify as disabilities. The Act begins with a finding that “some 43,000,000 Americans have one or more physical or mental disabilities.” Between the aging of the population and amendments that expanded the definition of disability, that number is presumably higher now.
  • The extent of employers’ obligations to accommodate disabled workers. This is not like other discrimination laws that require you to treat everyone the same. Employers are expected to accept certain expenses, inefficiencies, and disruptions to enable disabled individuals to work.
  • The interactive process, i.e. the steps employers are required to go through to identify possible accommodations. You can access a presentation I did on that topic here.

When in doubt, get qualified legal advice. It’s much cheaper than waiting to get sued.