Posts from January 2011.

In Travato v. Beckman Coulter, Inc., the California Court of Appeal issued a decision potentially helpful to employers defending claims of alleged harassment and/or alleged retaliation, holding that the plaintiff's claims were time barred because she failed to present them within one year of the last alleged bad act and holding there was no evidence to support application of the continuing violations doctrine, which, under some circumstances, can save claims that would otherwise be time-barred. 

The United States Court of Appeals for the Ninth Circuit as recently faced with a question of first impression under the federal Workers’ Adjustment and Retraining Notification (WARN) Act — whether  employees who leave a job because a business is closing have “voluntarily departed” within the meaning of the statute. In Collins v. Gee West Seattle, LLC issued January 21, 2011, the court answered the ...

As we reported here, the California Court of Appeal recently issued a decision holding that an "aggrieved" employee can seek against his or her current or former employer penalties under the California Private Attorneys General Act of 2004 penalties for failing to provide to employees as required by an applicable Industrial Welfare Commission ("IWC") wage order. Specifically, In Home Depot U.S.A., v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders. In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA). In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements. Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order."

On January 19, 2011, the United States Supreme Court held in NASA v. Nelson that the government’s implementation of a background check program for current employees did not violate their constitutional right to informational privacy. At the time of their hire, the contract employees at NASA’s Jet Propulsion Laboratory were not subjected to government background checks. However, the Department of ...

On January 14, 2010, the National Labor Relations Board ("NLRB") issued a press release stating it informed the Attorneys General of Arizona, of South Carolina, and of Utah that recently-approved constitutional amendments to those states' laws requiring that union elections be conducted only by secret-ballot elections and not by submission of signed union authorization cards or by other means.  The NLRB informed those states also that the NLRB would file suit in federal court to enjoin those states from enforcing those laws.

As the job market continues to flounder and the number of lawsuits alleging claims for alleged discrimination, harassment, retaliation, wrongful termination, and similar claims continues apace, the Court of Appeal has issued a decision that should prove helpful to employers defending such cases. In Holmes v. Petrovich Development Company, the court affirmed the trial court's grant of summary adjudication in favor of Petrovich Development and Paul Petrovich and against Gina Holmes on her claims she was harassed, retaliated against, and constructively wrongfully terminated on account of her pregnancy in violation of the Fair Employment and Housing Act ("FEHA").

In a spate of recent activity, the federal National Labor Relations Board and U.S. Department of Transportation have issued proposed regulations that would affect employers in the transportation and other industries affecting interstate commerce.  The proposed regulations are:

As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the California Court of Appeal held an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats.  The court rejected the employer's argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of nonwage labor standards contained in the IWC's wage orders. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use.  She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful.  The court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.  

As we previously reported here, on April 26, 2010, in Dukes v. Wal-Mart Stores, Inc., a divided Ninth Circuit Court of Appeals decided 6-5 en banc to affirm the decision of the trial court to grant class certification in a discrimination lawsuit alleging Wal-Mart Stores discriminates against its women employees. The nationwide class is reputed by the Los Angeles Daily Journal to number upward of 1.6 million ...

In defending numerous wage and hour class action lawsuits, one thing is constant. Such lawsuits nearly always include allegations that the employer failed to provide employees with wage statements (aka check stubs) that comply with Labor Code section 226, which specifies nine items of information that must be stated on each wage statement. Such allegations take one or both of the following forms ...

Employers are frequently presented with or learn second-hand about complaints by employees ranging from the trivial to serious.  An employer's response to such complaints or to second-hand reports of workplace harassment, discrimination, and/or retaliation can help reduce or eliminate liability on the part of the employer or even create liability on the part of the employer. 

In 2010, former Governor Arnold Schwarzenegger vetoed nine out of the eleven employment-related bills we were tracking that made it to his desk for approval. Among the vetoed legislation were bills: limiting the use of credit checks in employee background checks, requiring employers to provide unpaid bereavement leave, increasing damages in minimum wage actions, increasing penalties for failure to pay final wages actions, and removing overtime and meal period exemptions for certain agricultural employees.

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