California News & Analysis

  • NLRB General Counsel clamps down on union organizing strategies

    With the percentage of unionized workplaces at an all-time low, pure necessity has compelled unions to modernize their approach to organizing American workplaces. Especially in liberal communities where employers can be tagged with the political and economic stigma of being "antiunion," the modern union playbook gives union organizers many ideas for gaining an advantage in organizing workers.

  • The fatal case of the unprepared posse

    Police detective mysteries have been the staple of primetime television for decades, maybe because each of us wishes a little that we could be the civilian helping solve a crime or save someone from danger. But of all the who-done-it answers, nobody ever tells you who pays the medical bills and lost wages from any injury caused by the caper. Until now. And just like most detective stories, our injured heroes win—but they don't win much.

  • Despite recent court decisions, questions remain for religious employers

    The U.S. Supreme Court issued two decisions recently that were welcome news for religious organizations and other employers that rely on religious convictions as they conduct their business. One decision bolstered the "ministerial exception," a doctrine stemming from the First Amendment that prevents government interference in religious organizations' ability to hire and fire employees. The other decision says certain private employers with religious or moral objections to birth control can exclude contraception coverage in their employer-sponsored health plans even though the Affordable Care Act (ACA) mandates such coverage for most employers.

  • Incivility and harassment at work? Employer policies can help

    Employers concerned about racist, sexist, and other unacceptable outbursts in the workplace cheered a decision from the National Labor Relations Board (NLRB) in July that makes it easier to discipline or fire employees for offensive speech. Under the previous standard, employees disciplined for profane outbursts often could look to the National Labor Relations Act (NLRA) for protection since Section 7 of the Act prohibits employer policies that may impede employee efforts to join a union or otherwise band together to improve the terms and conditions of employment. The previous standard was tolerant of some degree of heated speech uttered in the exercise of Section 7 rights as long as it wasn't violent or otherwise too extreme.

  • California News in Brief

    Cal/OSHA cites employers for COVID-19 violations. The California Division of Occupational Safety and Health (Cal/OSHA) announced on September 4 that it has cited 11 employers for not protecting employees from COVID-19 exposure during inspections of industries where workers have an elevated risk of exposure. The industries include food processing, meatpacking, health care, agriculture, and retail. Proposed penalties range from $2,025 to $51,190. The employers were cited for not protecting workers from exposure to COVID-19 because they didn't take steps to update their workplace safety plans to properly address hazards related to the virus. The inspections were opened after notification of serious illnesses, complaints of workplace hazards, and proactive joint enforcement efforts.

  • Red Bull can't compel employee to arbitrate age, sexual harassment claims

    In this case, a midlevel sales manager filed an age discrimination and sexual harassment lawsuit, and the employer sought to compel arbitration based on the arbitration agreement he signed when he was hired. The sales manager argued the agreement was unenforceable because it wasn't mutual, it excluded from arbitration claims under the company's confidentiality agreement, and it limited arbitral discovery (i.e., the exchange of evidence). The trial court initially determined the agreement was enforceable but then changed its mind. The appellate court examined whether the agreement's lack of mutuality and limitations on discovery rendered it unenforceable.

  • If you have nothing nice to say, don't say anything at all

    Social media can often connect employees in a meaningful way, particularly on employer-run social media pages. However, it's equally important to ensure employees are conducting themselves properly and following sound policies when they discuss workplace issues, and they should be held to appropriate policy standards. Those principles were front and center in a recent case in which an appellate court reviewed the conduct of a school counselor who apparently let her emotions guide her public commentary.

  • Rare as a unicorn: a PAGA case favorable for employers

    A California truck driver recently filed a claim against his employer under the state's Private Attorneys General Act (PAGA) containing the usual allegations: meal and rest period violations, failure to provide accurate wage statements, and failure to pay wages owed upon termination. When a previous class action filed by another employee asserting the same claims was settled, the truck driver thought he could save his claims by opting out of the settlement. His attempt didn't go as planned, however, resulting in that rarest of beasts: a PAGA outcome in the employer's favor.

  • You don't have to cross state lines to be involved in interstate commerce

    The Federal Arbitration Act (FAA) states that most arbitration agreements are as valid and enforceable as any other contracts. One exemption relates to "seamen, railroad employees, [and] and other classes of workers engaged in foreign or interstate commerce."

  • California News in Brief

    Building contractor reaches settlement over racial slurs, noose. A San Jose-based electrical subcontractor at the Apple Park construction project, Air Systems Inc. (ASI), will pay $1.25 million to eight African-American former employees and provide other relief to settle a racial harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the agency announced August 21. The suit claims the harassment included racist graffiti of swastikas and racial epithets drawn on the walls of the portable toilets at the construction site as well as a noose at the worksite hung next to a scrawled note containing other expletives and a threat of lynching. Also, the suit claims the company failed to act when notified by two African-American employees that a white coworker had taunted them with racial pejoratives. In addition to the monetary settlement, the employer must hire an equal employment opportunity consultant to help implement terms of the settlement.