Labor & Employment Law Blog

If this sounds like an oxymoron to you, join the crowd.  For years, California employers have relied on the principle that plaintiffs cannot prevail under Government Code section 12940(k) for “failure to prevent” discrimination (or harassment or retaliation) if the plaintiff does not prevail on the underlying claim.  The failure to prevent cause of action has been viewed as a derivative cause of action that stems exclusively from a finding that discrimination, harassment or retaliation actually occurred.  Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 925, fn. 4.  The Carter rule has been used as a successful tool for employers when filing motions for summary judgment and eliminates “failure to prevent” tag-a-long claims when the underlying law is not broken.

California Labor Code section 1102.5 is an expansive whistleblower statute frequently used by plaintiffs’ attorneys to sue for wrongful termination.  Section 1102.5’s many protections include prohibiting employers from adopting rules preventing employees from making complaints (sub (a)), prohibiting retaliation against an employee who has “reasonable cause to believe” that an activity may be illegal (sub (b)) and prohibiting retaliation against an employee who refuses to participate in an activity that is illegal (sub (c)).  Subsection (d) also protects employees from retaliation based on conduct at prior employment.

In December 2018, California announced the start of its CalSavers retirement savings program.  The program is available to California employees whose employers do not offer a workplace retirement plan, to self-employed individuals, and to others who want to increase their retirement savings.  Through this program, employees working for a participating employer may automatically contribute a portion of their pay to a Roth (post tax) Individual Retirement Account.  Individuals who do not work for a participating employer but want to save under CalSavers can set up recurring contributions. 

Employers with less than 500 employees have been wading through the intricacies of the federal Families First Coronavirus Response Act (“FFCRA”) that provides paid sick leave to employees of those companies.  According to Executive Order N-51-20 (the “Order”) issued by Governor Newsom, the FFCRA does not go far enough to protect workers who grow and harvest food, work in food facilities, and deliver food from food facilities.