Labor & Employment Law Blog

Effective October 10, 2024, San Diego County adopted its new Fair Chance Ordinance (“SDFCO”). The SDFCO imposes additional restrictions that covered employers must follow regarding the use of criminal history in employment, on top of what California law already requires. 

The new SDFCO applies to employers that do business in the unincorporated areas of the County of San Diego and have 5 or more employees. Applicants and current employees who are in or are seeking a position involving at least 2 hours of work, including remote work, on average each week in the unincorporated areas of the County, receive protections under the SDFCO. Unlike the California state Fair Chance Act (“FCO”), the SDFCO expressly defines an “applicant” to include those applying for employment but also current employees seeking promotions or transfers.

As has been widely reported, companies throughout the country are facing pandemic-related labor shortages, including because of workers’ childcare obligations, concerns about returning to in-person work, and the continuation of unemployment benefits.  Employers attempting to address this labor shortage are offering hiring bonuses, increasing wages, and improving benefits and flexibility.  It also appears they are hiring teenagers to fill these vacancies, which coincides with the general uptick in youth employment between April and July each year.  According to the U.S. Bureau of Labor Statistics (“BLS”), the unemployment rate among teenagers this month stands at 12.3% and is anticipated to fall further, providing a stark contrast to teen unemployment last summer.  (In July 2020, the unemployment rate for 16 to 24 year olds was 18.5%, about twice as high as the year before, according to the BLS.)

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.

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.

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.

Employers who are faced with sexual harassment or sexual abuse claims by a current or former employee now have another problem to consider – are the settlement payment and related attorney’s fees incurred in settling the claim deductible?  Unfortunately, the answer to that question may now be no.

Beginning January 1, 2018, California employers are required to display the “Transgender Rights in the Workplace” poster created by the Department of Fair Employment and Housing (“DFEH”).  Employers must place the poster in a prominent and accessible location in the workplace.

The DFEH published on its website the mandatory poster, which is available in English ...

What kinds of provisions in arbitration agreements will cause the courts to invalidate them?  The Court of Appeal in the recent case of Baxter v. Genworth North America Corporation analyzed and rejected several of them, in upholding the denial of a motion to compel arbitration of an employee’s wrongful termination and discrimination claims.  Baxter v. Genworth North America (October 26, 2017 ...

When can an employer be liable for failing to prevent a sexual assault or rape of an employee?  The California Court of Appeal in the recent case of M.F. v. Pacific Pearl Hotel Management, LLC (D070150, FOURTH APPELLATE DISTRICT, DIVISION ONE, 10/26/17), helped provide some answers to this question.

The plaintiff in the case worked as a housekeeper in a five-building hotel property.  One morning, the hotel’s ...

On August 29, 2017, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC) that it is suspending implementation of the EEO-1 form that was revised on September 29, 2016, in accordance with the OMB’s authority under the Paperwork Reduction Act (PRA).  This means that employers will not be required to report salary information with the EEO-1 Report due on March 31, 2018.