Labor & Employment Law Blog

Last Thursday, President Obama addressed a joint session of Congress and announced his American Jobs Act. On Monday, President Obama formerly presented the Bill to Congress.  Among the provisions included the 155-page Bill but which the President did not announce in his speech last week is the "Fair Employment Opportunity Act of 2011". This law, if passed, would make it an unlawful discrimination practice for an employer to deny employment (i.e., decline to hire) an individual on account of the applicant's unemployment.  In short, President Obama's proposed law would make being unemployed a protected class on par with other protected classes such as race, color, religion, national original, age, and sex. Specifically, Section 374 of the Americans Jobs Act makes it unlawful for employers to:   

In a press released issued today, the California Department of Fair Employment and Housing touts an administrative award of $846,300 against an employer for allegedly failing to accommodate an employee's medical condition and for allegedly terminating the employee "relying on [an] insufficient travel pretext." The DFEH press release states as follows:

AALRR was ranked the 36th largest law firm in California by California Lawyer in its annual survey of the state's largest law firms. AALRR moved up five places in this year's ranking. 

As we previously reported here, there was little doubt Governor Jerry Brown's appointment of UC Berkeley law professor Goodwin Liu to the California Supreme Court would be swiftly confirmed by the California Commission on Judicial Appointments, consisting of three members:  California Supreme Court Presiding Justice Tani Cantil-Sakauye (appointed by former Governor Arnold Schwarzenegger), California Attorney General Kamala Harris (a Democrat elected in 2010 after serving as the District Attorney for the City and County of San Francisco), and Senior Presiding Justice of the California Court of Appeal  Joan Dempsey Klein (appointed by Governor Brown during his first term as Governor of California).  

On August 17, 2011, the California Court of Appeal held an employee does not have to be licensed as an attorney to qualify as an exempt employee under "learned professions" exemption of Industrial Welfare Commission Wage Order 4-2001. This case is significant because it allows an employer to apply the learned professions exemption to individuals who may not be licensed. Employers can make individual determinations based on an individual's actual education, training, and duties. This permits a more flexible application of the exemption that takes into consideration the realities of a given situation. 

In an announcement dated August 25, 2011 the National Labor Relations Board confirmed the approval of a final rule which requires all employers under NLRB jurisdiction to post a Notice which will inform employees of their rights. Those rights include to form and join unions and to engage in concerted activities for mutual aid and protection, which may include group protests over working conditions or demands for workplace change through social media. A fact sheet with additional information about the rule can be downloaded by clicking here.

In Salas v. Sierra Chemical Co., the California Court of Appeal held that evidence of employee or job applicant wrongdoing discovered after an allegedly discriminatory termination or refusal to hire that would have caused the employer to terminate the employee or to refuse to hire the employee can be a complete defense to claims for alleged wrongful termination, to claims for alleged discriminatory refusal to hire, and to claims for alleged failure to reasonably accommodate an alleged disability. 

Over ten years ago, in Earley v. Superior Court (2000) 79 Cal.App.4th 1420, the California Court of Appeal held that employers who defeat claims for allegedly unpaid overtime wages or minimum wages are not entitled to recover their attorneys fees. The court reasoned that Labor Code section 1194 is a one-way attorney's fees statute that permits prevailing employees but not prevailing employers to recover their attorney's fees. In that case, the court further held that permitting prevailing employers to recover their attorney's fees would be contrary to public policy in that it would have a chilling effect on the right of employees to sue for allegedly unpaid overtime wages or minimum wages. 

Last year the California Legislature passed SB 1304, providing employees an opportunity to take paid leaves of absence from work for bone marrow and organ donation, as previously reported here. The law took effect January 1, 2011 and applies to employers with 15 or more employees. The law allows for leaves for organ donation of up to 30 days and bone marrow donation of up to five days in a one-year period. The law ...

As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.