Labor & Employment Law Blog

Plaintiff attorneys have deluged the courts with wage and hour class actions and PAGA lawsuits.  The first question an employee advocate asks of their potential client is, “can I see a pay stub?”  Instead of agreeing to represent employees for their harassment or wrongful termination claim, they convince the disgruntled ex-employee to act as a representative for a PAGA or class action for improper wage and hour practices. 

The pandemic opened Pandora's box for many employers including having employees work remotely.  Remote work has created a plethora of management issues including communications for employees working different schedules over various time zones, technology and security challenges for the home office, dress code for zoom calls, and a myriad of legal considerations such as time keeping from the home rather than from the office, enforceability of non-compete agreements, reimbursing employees for costs associated with home as the office, 1099 misclassification, unemployment compensation, workers' compensation, licensure requirements, and unexpected state and local taxes to name a few.  As Gen Z has begun to supplant Boomers in the workplace, Zoomers need to be given flexibility in their job or bouncing to the next job is a harsh reality.  As a result, many employers are providing employees with the option to work remotely as an employment benefit of the post-pandemic world.

One of the many downsides to the current pandemic is that so many people have exhausted their family leave taking care of themselves as well as sick family members.  The non-COVID-19-related issues of families have not gone away, however.  Who is taking parents to chemo treatments?  Who is taking spouses to physical therapy?  How do employees and employers deal with these issues?  If family leave is no longer an option, employees may turn to associational discrimination and reasonable accommodation of associational discrimination if they are denied time off to take care of family members.

 In a 7-2 decision authored by Justice Alito, the U.S. Supreme Court reaffirmed the ministerial exception set forth in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012).  (Our Lady of Guadalupe School v. Morrissey-Berru, Case Nos. 19-267 and 19-348 (July 8, 2020)(“OLG”)).

In Anthony v. TRAX International Corp. (April 17, 2020, Case No. 18-15662), the Ninth Circuit held the limitation of using after-acquired evidence to merely mitigate damages did not extend to evidence used to show that an Americans with Disabilities Act (“ADA”) plaintiff is not a qualified individual, an element of a prima facie case of disability discrimination.

As the end of the year descends upon us, it is time for workplaces to have their December gatherings, and like everything else in the employment setting these days, employers must be on their guard to not create situations that could lead to potential legal liabilities.  The following is a quick reminder of considerations for holiday parties.

The Fair Employment and Housing Act (“FEHA”) has always contained a two layered statute of limitations for employees to bring lawsuits against their employers for discrimination, harassment, and retaliation.  Formerly, employees had one year to file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) from the date of the alleged discrimination, harassment, or retaliation.  If an employee did not comply with this administrative requirement, then the employee’s complaint would be subject to dismissal for failure to exhaust administrative remedies.  Even if an employee were to file a timely administrative complaint, they were subject to a one year statute of limitations for filing a civil action from the time they received a right to sue letter from the DFEH.  The Stop Harassment and Reporting Extension Act (“SHARE Act”) has greatly expanded employee rights. (AB 9, 2019).

In the recent case of Huerta v. Kava Holdings, Inc., 2018 WL 5999639 (Cal. Ct. App. Nov. 14, 2018), the California Court of Appeal held that a prevailing employer that made a section 998 settlement offer to the plaintiff in an action brought under the Fair Employment and Housing Act (“FEHA”) was not entitled to costs and expert witness fees incurred after the plaintiff’s rejection of the offer.