News & Analysis

Personnel file and payroll record and pay stub requests—oh my!

Most California HR professionals are familiar with requests from employees and former employees—and their lawyers—for copies of personnel records. With few changes over the years, California law has long given employees the right to inspect and obtain copies of certain records. Still, it can be vexing to receive such requests, especially when the letter requesting the documents misrepresents what the law requires and makes it sound like there will be dire consequences if the company doesn't immediately comply.

The message in the medium

For years, Google has been playing with fire by encouraging employees to post almost anything on its internal message boards. The company, known as the portal for any inquiry imaginable, brought its open search philosophy in-house, encouraging robust employee discussion on almost any topic, without fear of retaliation.

Employers dealt another blow in efforts to compel arbitration of employees' PAGA claims

The dreaded statutory scheme known as the Private Attorneys General Act (PAGA) continues to bedevil California employers. Since the California Supreme Court's decision in Iskanian v. CLS Transportation, employers have been largely unsuccessful in forcing PAGA claims to arbitration. Plaintiffs' attorneys, fully aware of that fact, continue to file PAGA-only claims against employers, confident they can stay out of arbitration.

Visiting business's website with intent to use it is enough to establish 'standing'

E-commerce is here to stay. With the expansion of e-commerce and new business models, however, courts are facing new challenges in interpreting laws that were written for "brick-and-mortar" businesses. Is visiting a website without completing a transaction sufficient activity to allow someone to file a discrimination claim over the website's accessibility? For the first time, the California Supreme Court says that activity is enough.

Is employee's lawsuit subject to a subsequently signed arbitration agreement?

An employee filed a lawsuit against his employer. Two days later, he signed an arbitration agreement. The trial court refused to compel arbitration on the grounds the employer hadn't established that the employee agreed to arbitrate the claims or that the arbitration agreement would apply retroactively. A California Court of Appeal had a different perspective.

9th Circuit says it's not enough for bias to be 'motivating factor'

The Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against qualified employees on the basis of a disability. In 2005, the 9th Circuit issued a ruling in Head v. Glacier Northwest, Inc., in which it said that to prove a violation of the ADA, an employee needs to show only that disability discrimination motivated the employer's adverse decision even if other reasons played a role (the "motivating factor" analysis). The employee doesn't have to show that the adverse employment action wouldn't have occurred but for the disability (the "but-for" standard). The motivating-factor standard applies to discrimination claims under Title VII of the Civil Rights Act of 1964.

Preparing for battle: how to avoid termination land mines

Termination meetings are one of the most challenging aspects of the employment relationship. Adequate preparation is the key to reducing your organization's exposure to potential claims. The following checklists will help you plan for termination meetings.

Union Activity

Miners' union invites presidential candidates to go underground. The international president of the United Mine Workers of America in July sent letters to all the candidates for the Democratic nomination for president inviting them to go to a union coal mine and go underground. Cecil E. Roberts said coal miners want to know that those running for president "have some understanding of what they do and why they do it." Roberts sent the letter at a time when the sector of the coal industry that produces steam coal, used as fuel for electricity generation, is under stress. Coal-fired power plants are disappearing, with 289 closing since 2010 and 50 since January 2017. A statement from the union said most Democratic presidential candidates have endorsed the Green New Deal or offered similar plans that would hasten the closure of coal-fired power plants and the mines that feed them. Roberts said the candidates "owe it to these workers to meet them face to face, tell them their plans, and then just listen."

3 years later: The smoke around AMMA clears

In 2016, Arkansas citizens voted to enact the Arkansas Medical Marijuana Amendment (AMMA) as Amendment 98 to the Arkansas Constitution. It has taken considerable time, but medical marijuana dispensaries are now open and providing the drug to qualified patients pursuant to the amendment. As the law reaches its three-year anniversary, it's time to review what the amendment does and doesn't require of employers.

Surprise, surprise! Train engineer's attendance at work is actually important

The U.S. Court of Appeals for the 8th Circuit (whose rulings apply to all Arkansas employers) recently considered an employee's argument that attendance wasn't an essential job function and his employer should have reasonably accommodated him by allowing him to work only when he felt able to do so. Fortunately, the court disagreed with the employee's interpretation of the law.