News & Analysis

Getting 'serious': AB 1805 expands reach of Cal/OSHA standards

Governor Gavin Newsom recently signed Assembly Bill (AB) 1805, which will result in expanded reporting requirements for workplace accidents and injuries. The new law will also cause an increase in the number of inspections conducted by the California Division of Occupational Safety and Health (Cal/OSHA) at California facilities.

Court revives suit filed by employee 17 years after her retirement

An employee who retired from the city of San Francisco in 2000 filed suit 17 years later, claiming her disability retirement payments were discriminatorily low. Not surprisingly, the case was thrown out because of the statute of limitations. Why did the court of appeal recently reinstate it?

To employ(ee) or not to employ(ee)? That is the question

It has long been the law that employment is "at will" in California. That means that unless an employee is covered by a union contract with a "just cause" provision or an employment agreement with a fixed term, her employer can terminate her employment at any time, without cause and without notice, as long as its reason for the termination doesn't violate a law or public policy. In reality, of course, every employer (and every employee) knows that there are many laws and public policies that protect employees against termination, so even though an employer doesn't have to have "cause" to terminate someone, it must have a lawful explanation for the decision—and proof that lawful explanation is true.

Mandatory service charges may constitute tips owed to workers!

A California appellate court has ruled that a mandatory "service charge" added by a banquet facility to its contracts may actually constitute a "gratuity" under California law, meaning it must be given to nonmanagerial employees who serve food and beverages. This decision reverses older case law on this topic.

#MeToo legacy highlights need for cultural change

It's been two years since actress Alyssa Milano encouraged women who had been sexually harassed or assaulted to tweet #MeToo, sparking a movement that exposed the staggering prevalence of sexual harassment in the modern workplace. To many seasoned HR professionals who have been working to eradicate sexual harassment their entire careers, the #MeToo movement appeared to have come several decades late. After all, the law has banned workplace sexual harassment for more than 30 years. It felt like Milano and the millions of people who responded to her tweet had just noticed that bell bottoms were out of style. Or were back in style. Or were out of style again.

Thanksgiving: a time to be thankful for good employees

All too often, the employment law advice that we provide as practitioners focuses on issues that relate to problem employees. You know these folks—they're the troublemakers, the harassers, the pot-stirrers, the chronically absent, and the habitually tardy. They're the underperformers, the rule breakers, the constant complainers, the leave abusers, the policy violators, the workplace bulliesthe list goes on and on. Often, it's this squeaky-wheel segment of the workforce that receives and monopolizes the vast majority of HR's time, energy, and resources. Such workers are also the ones who command the attention of upper management.

Certain types of parent-teacher talks qualify for FMLA leave, DOL opinion letter says

A recently published U.S. Department of Labor (DOL) opinion letter found certain types of parent-teacher conferences can be considered qualified leave under the Family and Medical Leave Act (FMLA). As a result, some of you may have to provide employees with leave to attend the meetings.

How do you keep the whistle from being blown on you?

No one is immune from whistleblower complaints, not even the president of the United States, who is facing an impeachment inquiry spurred by a whistleblower's concerns about statements he made during a call with the president of Ukraine. Whistleblower complaints brought by disgruntled former employees have become common in California (and elsewhere), and they are often expensive and difficult to defend. It's therefore very important to recognize and promptly address employees' complaints and concerns.

Failure to request FMLA leave doesn't mean ADA won't require leave

Employers are often faced with the task of determining how the Americans with Disabilities Act (ADA) interacts with the Family and Medical Leave Act (FMLA). Recently, the U.S. Court of Appeals for the 8th Circuit (whose rulings apply to employers in Arkansas) found an employee could pursue an ADA claim based on the denial of leave even though she failed to follow the procedures to request FMLA leave for which she would have been eligible.

Plan administrator awards life insurance proceeds to domestic partner instead of children

The Employee Retirement Income Security Act (ERISA) governs employee rights and employer responsibilities for all employer-provided fringe benefits. When designing and implementing benefits plans, employers may vest enormous discretion in plan administrators to interpret and implement benefits provisions. In a recent ERISA case, the 8th Circuit emphasized the broad discretion you may invest in a plan administrator.