Our law firm offers comprehensive counseling and litigation services related to all aspects of the employment relationship in California. We have over twenty-two years of experience representing employers in State and Federal Court litigation, appeals and administrative actions. We provide employers with advice to prevent liability from occurring, ongoing human resources counseling, and training in compliance issues.
Examples of how our expertise can assist California employers include the following areas:
Wage and Hour – This is still one of the hottest areas in employment law in California. Even with the guidance given by the California Supreme Court in Brinker v. Superior Court (2012), more California employers will likely face this type of lawsuit than any other. This is due to recent trends in litigation, the way wage and hour laws favor employees over employers, and the fact that employees may recover attorney’s fees when violations exist. These claims include unpaid overtime, unpaid rest periods, missed meal periods, inaccurate wage statements, unpaid vacation, waiting time penalties, claims of unfair competition and the like.
Frequently wage and hour claims arise out of alleged misclassification of exempt employees. For this reason, employers should perform due diligence on all of their exempt employees to make sure they are properly classified.
Discrimination occurs when an employee is unlawfully treated differently because of his or her protected characteristics and suffers an adverse employment action as a result. The adverse employment action can involve a denial of a promotion, transfer, demotion, termination and extend even to claims of failure to hire.
Protected characteristics include: race, color, religion, sex (including pregnancy, childbirth, or related medical conditions), gender identity, national origin, ancestry, citizenship, age, physical or mental disability, legally protected medical condition or information, family care status, military caregiver status, veteran status, marital status, domestic partner status, sexual orientation, or any other basis protected by local, state, or federal laws.
Claims of racial discrimination focus on either disparate treatment or disparate impact. Claims of discrimination related to religion, ethnicity, and national origin have increased in the last decade.
Retaliation – Retaliation occurs when an adverse employment action or threat of adverse action takes place because an individual exercised or attempted to exercise any protected rights under State or Federal employment laws. Retaliation can exist when there is a causal connection between an employee’s exercise of protected rights and an adverse employment action. Retaliation may occur even when the employee’s underlying claim has no merit. A retaliation claim must establish a nexus between the protected activity and the adverse employment action. Often the nexus has to be close in time between the two events.
Harassment – Harassment is conduct focused on a person or group of people and includes, but is not limited to, physical or verbal abuse, unwelcome activity of a sexual nature, as well as behavior or action that unduly interferes with an individual’s ability to perform assignments or conduct that creates a hostile, offensive, or intimidating work environment. Harassment must appear on an objective and a subjective level. The offensive conduct must be severe or pervasive such that it alters the conditions of employment.
Common Law Claims – While California has a well-developed series of statutory claims an employee may pursue against an employer, the employee may also resort to common law claims such as tortious discharge or wrongful termination. These claims may effectively duplicate the statutory claims, but are treated differently.
Unfair Competition – While typically used in business disputes, plaintiff attorneys routinely allege a cause of action for unfair competition in their lawsuits. They do so because it extends some statutes of limitation from three years to four and also because it is hard to pin down when an employment practice is “unfair.” An employment practice does not necessarily have to be illegal to be unfair. As with other claims, these can be defeated with the right strategic approach during the discovery phase of litigation.
Non-Competition, Non-Solicitation Agreements – California recognizes the right of fair competition and supports the near unrestricted ability of employees to work for new employers. Non-competition agreements between employers and employees are typically unenforceable, absent a few important exceptions applicable to trade secrets and the sale of a business interest.
Punitive Damages – As a scare tactic, employees often allege that they are also entitled to punitive damages. These damages may be recoverable against an employer and an individual manager, depending on the circumstances. An employee must prove his or her entitlement to punitive damages by clear evidence that leaves no substantial doubt that an employer, and/or its manager, acted with oppression, fraud or malice.
Trade Secrets, Customer Lists, Employee Raiding – A trade secret is information, including a formula, pattern, compilation, program, device, method, technique or process, that (a) derives independent economic value, actual or potential, from not being generally known to the public or to other persons or entities who can obtain economic value from its disclosure or use and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
A customer list can be one of the most important assets a business has. Whether a customer list qualifies as a trade secret, and thus is entitled to protection from theft or misappropriation, depends on the economic value it holds and the reasonable steps a business takes to protect it. Issues of this nature often arise when a former employee attempts to use the customer list for his or her own benefit. Proactive employers should establish reasonable protections and policies to govern their confidential information. This may include the use of confidentiality and nondisclosure agreements with their employees.
Employee Leave Laws – There are many employee leave laws in California that an employer must consider when making personnel decisions. Depending on the size of the employer’s work force, these can include the Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), the Workers Compensation laws, pregnancy related laws such as Pregnancy Disability Leave (PDL), alcohol or drug treatment related laws (Labor Code), Military Leave laws including the Uniformed Services Employment and Re-employment Rights Act (USERRA), Kin Care, and a host of other laws. The various laws may have overlapping coverage, so it is important to fully consider and understand all of the implications of an employee’s need for leave.
Reasonable Accommodations – This area of the law is most commonly thought of in the context of the Americans With Disabilities Act (the ADA) and the more recent update the ADA Amendments Act (ADAAA). The threshold for whether an employer is subject to the ADA is met when the employer has at least 15 employees.
Some employers that have fewer than 15 employees may think that they have no duty to consider the need for a reasonable accommodation but they would be wrong. California’s Fair Employment and Housing Act (FEHA) applies to employers of 5 or more employees and it has similar obligations to the ADA for reasonable accommodations. An employer has a duty to effectively engage in the interactive process of understanding and attempting to reasonably accommodate an employee’s disability in certain circumstances.
Executive Level Employees – When it comes to executive level employees, an employer typically has different arrangements for these or “C” Suite workers. This may include executive compensation, employment contracts for a certain length of time, and severance agreements.
Employee Handbooks – One of the most effective workplace tools an employer has is its Employee Handbook. The Handbook must be properly drafted and updated regularly. A proper Handbook melds the law in California with an employer’s own business policies. The real value of a Handbook comes from the employer and its employees having a clear understanding of what is required from each of them.
Social Media Policies – With the rise and prevalence of social media in the workplace, California employers need to address appropriate rules and restrictions on social media. Employers need to avoid sweeping social media policies that can be construed to limit the right of employees to engage in concerted activity. Employers should ensure that social media accounts established for the business are the sole property of the employer when the employee leaves.
There are appropriate and inappropriate uses of social media in evaluating prospective employees that employers must know. This includes complying with the Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA).
Issues may arise around an employee’s off-duty social media activities and how they relate to the workplace. Those matters should be handled carefully. An employer does not have an unfettered right to discipline an employee for lawful activity off-the-clock, even if that activity is inconsistent with the company’s business practices and image.
Avoiding Sexual Harassment – Since 2005, AB 1825 requires all California employers of 50 or more employees to provide training to supervisory employees (managers) in the recognition and avoidance of sexual harassment in the workplace. The training must be repeated every two years. The threshold of 50 or more employees includes independent contractors. Employers must provide their managers take two hours of interactive training every two years. New managers must complete the training within six months of their hire or promotion date. SB 778 and SB 1343 require all businesses of five or more employees to provide sexual harassment prevention training to all employees and repeat the training every two years.
Labor and Collective Bargaining Agreements (CBAs) – Larger employers that have a union workforce face another layer of workplace rules and laws. The rights of a unionized workforce differ, at some times significantly, from the rights of the typical at-will employee. We provide advice and litigation services for employers with a unionized workforce and employers involved in negotiating CBAs.