Labor & Employment Law Blog

In Salas v. Sierra Chemical Co., the California Court of Appeal held that evidence of employee or job applicant wrongdoing discovered after an allegedly discriminatory termination or refusal to hire that would have caused the employer to terminate the employee or to refuse to hire the employee can be a complete defense to claims for alleged wrongful termination, to claims for alleged discriminatory refusal to hire, and to claims for alleged failure to reasonably accommodate an alleged disability. 

Over ten years ago, in Earley v. Superior Court (2000) 79 Cal.App.4th 1420, the California Court of Appeal held that employers who defeat claims for allegedly unpaid overtime wages or minimum wages are not entitled to recover their attorneys fees. The court reasoned that Labor Code section 1194 is a one-way attorney's fees statute that permits prevailing employees but not prevailing employers to recover their attorney's fees. In that case, the court further held that permitting prevailing employers to recover their attorney's fees would be contrary to public policy in that it would have a chilling effect on the right of employees to sue for allegedly unpaid overtime wages or minimum wages. 

Last year the California Legislature passed SB 1304, providing employees an opportunity to take paid leaves of absence from work for bone marrow and organ donation, as previously reported here. The law took effect January 1, 2011 and applies to employers with 15 or more employees. The law allows for leaves for organ donation of up to 30 days and bone marrow donation of up to five days in a one-year period. The law ...

As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

As we previously reported here and here, in May, the National Labor Relations Board filed complaints against at least two employers alleging the employers violated the National Labor Relations Act ("NLRA") by disciplining employees on account of disparaging statements the employees posted on Facebook statements criticizing their employers. In one of those cases, the employer terminated an employee for posting on his Facebook page photographs and comments criticizing the dealership for serving only hot dogs and water to customers at a dealership sales event promoting a new model. Salespersons complained that serving only hot dogs and water could negatively impact their sales commissions. The NLRB alleges in both both of the cases that the employees statements posted on Facebook are protected concerted activity within the meaning of Section 7 of the NLRA because the statements involved a discussion among employees about their terms and conditions of their employment.

As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

Employment litigation often gives rise to discovery demands by the plaintiff(s) seeking information about the employer's other current and former employees who are not parties to the litigation and, often, employment records of such non-party employees. This occurs in both class action cases and in non-class action cases. In many cases, such discovery demands are little more than thinly disguised fishing expeditions at the employer's expense. Although existing case law recognizes the privacy rights of non-party current and former employees and generally requires courts to balance those privacy rights against the legitimate discovery needs of plaintiffs in employment cases and to employ certain safeguards, those laws are not always consistently applied by trial courts.

In Zullo v. Superior Court, the California Court of Appeal once again struck down an employer-employee arbitration agreement based on the court's conclusion that the arbitration agreement was both procedurally and substantively unconscionable and therefore unenforceable. The decision serves as a reminder to employers that arbitration provisions considered to be overly one-sided in favor of the employer are likely to be struck down by California courts.

Today, the California Court of Appeal held in Brown v. Ralph's Grocery Company that the decision of the trial court denying enforcement of a class action waiver contained in an arbitration agreement between Ralph's Grocery Company and its employees was not supported by substantial evidence but held, also, that a provision of that arbitration agreement barring employees from pursuing claims under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") is unenforceable because, according to that court, the recent decision of  Supreme Court of the United States in AT&T Mobility v. Concepcion, previously discussed here, does not apply to representative actions brought under PAGA. Further, the Court of Appeal remanded the case back to the trial court for a determination of whether the arbitration agreement is enforceable except for the PAGA waiver or is unenforceable in its entirety because of the PAGA waiver.  

The Daily Journal issued today its annual list of leading California Labor and Employment Law attorneys. We are pleased to report that two AALRR attorneys were recognized on this year's list, Nate J. Kowalski, a partner in the Firm's Employer Services Practice Group, and Howard A. Sagaser, also a partner in the Firm's Employer Services Practice Group.