Labor & Employment Law Blog

Last week, in a long-awaited decision, the California Supreme Court handed employers a setback by holding that age-related comments by non-decision makers can be relevant and admissible as evidence in age discrimination cases. In the case of Reid v. Google, Inc., the Court specifically rejected the "stray remarks doctrine," by which any remarks made by non-decision making co-workers or decision-making supervisors outside the decisional process were deemed irrelevant and insufficient to support an age discrimination claim.

On July 28, 2010 Governor Schwarzenegger vetoed a bill that would have removed the exemption for agricultural employees from overtime and meal period requirements under California law. 

Late last week, Governor Schwarzenegger approved a clarification of the law on appeals of Labor Commissioner decisions.  Meanwhile, SB 1121, concerning overtime for agricultural workers, reached the Governor's desk on July 20, and the Senate amended a bill concerning background checks.  A summary of these bills and key developments follow below.

In one of the first decisions interpreting the legal enforceability of California’s anti-labor injunction statute, a California appellate court held on July 19, 2010 that the law did not prevent a grocery store from obtaining an injunction against a union for picketing on its private property. The court specifically held that the statute, Labor Code section 1138.1, was unconstitutional as applied to that dispute because it conferred greater legal protection on picketing than other forms of speech, and declared labor protests on private property to be legal even though a similar protest concerning a different issue would constitute trespassing.

Sometimes, in refusal to hire cases, older applicants argue that they were victims of age discrimination if they were not offered job interviews or considered for the position applied for. In the case of Reeves v. MV Transportation, Inc. filed July 9, 2010, a California appellate court rejected just such a claim, in the case of a transportation company who hired a younger attorney for an in-house general counsel position based on a favorable general impression and a recommendation from a known colleague.

Two employment-related bills we have been tracking were sent to Governor Schwarzenegger this month:

AB 2772 (Swanson) Appeal Bonds - This bill would clarify that an employer wishing to appeal an administrative judgment by the Labor Commissioner is required to first post a bond.

Labor Code Section 98.2 currently provides: "Whenever an employer files an appeal pursuant to this section, the employer shall ...

When employers seek to compel employees to arbitrate their claims under an Arbitration Agreement, they are often met with arguments that they have “waived” their right to arbitrate by waiting too long to seek it or by engaging in acts inconsistent with the arbitral process.  In the recent case of Zamora v. Lehman, filed June 29, 2010, the California Court of Appeal held that just such a waiver occurred, by virtue of a party having sought extensive discovery in court proceedings before it tried to enforce an arbitration agreement.

Can an independent contractor sue a general contractor for injuries he sustains on a construction site as a result of a “peculiar risk” inherent in the nature of the work? No, said the California Supreme Court in the case of Tverberg v. Fillner Construction, Inc., issued June 28, 2010, because the independent contractor assumes responsibility for workplace safety by entering into a contract requiring the performance of inherently dangerous work.

Today, in Faulkinburty v. Boyd & Associates, Inc., the California Court of Appeal issued a decision that might prove helpful to employers opposing motions for class certification of wage and hour claims.  The court reiterated that it is the plaintiff(s)' burden to show his or her claims are susceptible to common proof (i.e. proof of alleged liability common to all of the purported class members) and that a defendant employer "'may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues.'"

On June 22, 2010, the Department of Labor (DOL) issued an Administrative Interpretation clarifying the definition of “son or daughter” as it applies to an employee standing in loco parentis to allow individuals who provide day-to-day care of a child to take leave under the Family Medical Leave Act (FMLA). 

The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter ...