California News & Analysis

  • New tax law creates catch-22 for sexual harassment settlements

    One of the primary concerns addressed through the #MeToo movement is that claims of sexual harassment in the workplace are often settled discreetly and without scrutiny. For years, employers have resolved sexual harassment claims with a settlement payout in exchange for a general release of the company from all liability. The terms of the settlement would include a confidentiality or nondisclosure clause barring the employee from discussing the allegations or the settlement with others. In particularly egregious circumstances, this creates a culture of secrecy in which employees are kept in the dark about a supervisor's, owner's, or some other individual's past indiscretions. The recently enacted Tax Cuts and Jobs Act (TCJA) encourages employers not to cloak settlements with a nondisclosure or confidentiality clause.

  • Court reminds employers of the duty to keep personnel information confidential

    Employers are required to maintain personnel information on employees, and several different laws protect the confidentiality of that information. The following case involved claims under the Information Protection Act (IPA), a law that applies specifically to governmental agencies. As the employer learned, disclosures of an employee's personal information must be made on a strictly need-to-know basis.

  • Public employees must exhaust administrative remedies before filing civil action

    Labor Code Section 244 states that an employee is not required to exhaust her administrative remedies before bringing a civil action unless the code section specifically requires exhaustion of remedies. That language appears to contradict the long-standing California Supreme Court holding in Campbell v. Regents of University of California, which required the exhaustion of internal remedies before filing a lawsuit.

  • Transportation industry exemptions—new challenges for class action waivers

    The increasing popularity of arbitration agreements among California employers in the past few years has been fueled in part by class action waiver provisions within those agreements. Such waivers preclude employees from asserting a collective action against their employer and compel them to arbitrate their individual claims, presenting a strategically sound and cost-effective alternative to litigation.

  • 9th Circuit again reverses NLRB in 20-year-old unfair labor practice case

    For over 20 years, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers) and the National Labor Relations Board (NLRB) played back-and-forth with a case addressing whether two casinos were allowed to stop deducting union dues when the collective bargaining agreements (CBAs) with the employees' unions expired. Read on for the (hopefully) final result.

  • The challenge of managing employees' social media use

    Employees' social media use can undoubtedly be damaging to their employer, especially when workers publicly post embarrassing comments about the company, disparage competitors, unknowingly disclose or even purposefully attempt to steal confidential information, threaten or harass others, or engage in any undesirable conduct that affects the company's image and reputation. In addition, an employer may be liable under various laws for accessing certain information or taking adverse action based on information an employee discloses—as well as for failing to take action based on such information. The following article offers insight into the consequences surrounding employees' social media use.

  • What do you want from life?

    I am reading Sapiens: A Brief History of Humankind, in which Yuval Noah Harari posits, among other things, that the "Agricultural Revolution," which created the first stable, large civilized communities, was a disaster, with the successful farmer working much longer and harder than her nomadic hunter-gatherer tribal ancestors, a day spent running through woods replaced by plowing, planting, reaping, and threshing. More civilization means a longer workday plus bad backs, necks, and knees as we perform tasks we weren't built for.

  • Union Activity

    Teamsters praise lawsuit against Los Angeles trucking companies. The Teamsters Union in January 2018 praised the Los Angeles city attorney for filing lawsuits against three port trucking companies, all owned by NFI Industries. The union said the suits allege that the companies intentionally misclassified hundreds of truckers as independent contractors, rather than employees, to avoid providing benefits and paying applicable taxes. A statement from the union said the Teamsters applaud Los Angeles City Attorney Mike Feuer for taking aggressive action against these market-leading companies—K&R Transportation, CMI, and California Cartage Express. Fred Potter, director of the Teamsters Port Division and international vice president said, We hope this will send a strong message that not only these companies, but [also] the entire port trucking industry, must stop breaking labor laws.

  • California enacts whistleblower law for legislative employees

    The #MeToo and #TimesUp movements have not gone unnoticed by the California Legislature. On February 4, 2018, Governor Jerry Brown signed into law a bill to secure protections for legislative employees who report sexual harassment and other misconduct. Both houses unanimously passed Assembly Bill (AB) 403. The governor signed the bill within hours of its passage by the California Assembly, and it became effective immediately as an urgency statute.

  • City can't terminate officer's probationary employment for off-duty sexual conduct

    Public-sector employers face greater challenges when disciplining employees than their private-sector counterparts, a fact that was exemplified by a February 9 decision from the 9th Circuit Court of Appeals (whose rulings apply to all California employers). In the case, the court split from two other federal appellate circuits and ruled that terminating a probationary police officer based in part on disapproval of her off-duty sexual conduct would violate her constitutional rights to privacy and intimate association. By concluding that even a probationary police officer can take her employer to court on such a claim, the court highlighted the constitutional protections that significantly restrict government employers' control over employees' off-duty sexual conduct.