Articles
LA County Enacts Fair Workweek Laws (Daily Journal)
By JJ Johnston
Employers often shuffle their workers' schedules around, trying to respond quickly to legitimate business concerns...read more.
Insurance for Employment Disputes: Know What's Covered Before
Negotiating (Daily Journal)
By JJ Johnston
Consider a typical employment dispute: Plaintiff has asserted a claim for wrongful termination and retaliation; the employer hopes to resolve the matter expeditiously in mediation. The final settlement should be covered by its Employment Practices Liability Insurance policy, correct?....read more.
"Avoidable Consequences" Should Apply to all FEHA Cases (Daily Journal)
By JJ Johnston
When an employee brings a claim for sexual harassment against an employer, there may be no question about liability. The California Supreme Court has determined that, under the Fair Employment and Housing Act (Gov. Code Section 12900 et seq.) (FEHA), if a supervisor engaged in offensive conduct, the employer is strictly liable - even if the employee never reported the harassment. But the court also held that an employer might be able to limit damages assessed against it for workplace sexual harassment under the "avoidable consequences" doctrine....read more.
Another Look at the Quach Decision (Advocate)
By JJ Johnston
In many workplaces, arbitration agreements have become a mandatory part of the hiring process, thus ensuring that many work-related disputes will never see the inside of a courtroom. If a claim subject to an arbitration agreement has been filed in court, employers typically respond either by obtaining the employee’s consent to move the case to arbitration via a stipulation, or filing a motion or petition to compel arbitration.....read more.
PAGA Claims Must Now Be "Headed" (The Recorder)
By JJ Johnston
On the cusp of the new year, Private Attorneys General Act plaintiffs were dealt a significant setback. On Dec. 30, a California appeals court ruled that such plaintiffs could not pursue so-called “headless” PAGA claims. As long as an employee has standing to bring a representative action on behalf of fellow employees, he or she must first arbitrate any individual PAGA claim based on those same violations....read more.
SB 399: Employers Can't Force Workers to Listen to Them (Daily Journal)
By JJ Johnston
The General Counsel of the National Labor Relations Board issued a memorandum to all field offices whose content may have come as a surprise to many employers. General Counsel Jennifer Abruzzo told employers that it was unlawful for them to make their workers listen to their opinions about unions or to
require their attendance at mandatory meetings about the exercise of statutory rights to form and join labor unions. Such requirements, she said, violated the National Labor Relations Act....read more.
Pay for Resident Managers can be Tricky (Daily Journal)
By JJ Johnston
When a person is hired to perform services for an employer, they expect to be paid for the work they do - whether on an hourly, project or other reasonable basis. But what happens when their work involves caring for rental property and they are required to live on the property?....read more.
Mediating Single-Incident Harassment Cases Claims Post Bailey (Daily Journal)
By JJ Johnston
Imagine an employee who is subjected to racial disparagement by a coworker. She tells others about the incident but decides against reporting it to HR for fear of being reassigned or treated negatively. Instead, she goes in every day and works alongside the same person who denigrated her. Nothing more to report. Now imagine that the company somehow learns about the alleged harassment. It calls the employee in for questioning and also talks with the alleged offender. It concludes that the incident likely happened, it was racially motivated, and it was offensive. It occurred just once, however, and did not involve a manager or supervisor. The employer concludes that no further action is warranted. Is there an actionable claim against
the employer? If they choose to bypass the courtroom, how will the parties establish their respective positions when they attempt to resolve the matter through mediation?....read more.
Employment Claims Against the Government (Daily Journal)
By JJ Johnston
When an employee has been underpaid, harassed, subjected to discrimination or otherwise treated unfairly in the workplace, the path toward resolution of the claim is generally clear. But when the employer in question is a government agency or other public entity, the path may not be so clear....read more.
Workplace Harassment: A New Landscape (Daily Journal)
By JJ Johnston
On April 29, the Equal Employment Opportunity commission (EEOC) issued new guidance on what constitutes workplace harassment. It was the first formal update of the agency's harassment guidelines in 25 years, and it was more than seven years in the making. The guidelines state that discrimination and harassment are covered by federal EEO laws, such as Title VII, only if they are based on one or more protected characteristics including race, national origin, or sex. In response to recent developments, however, the new guidelines significantly widen the scope of potential harassment claims....read more.
Criminal History Shouldn't Stand in the Way of Employment (Daily Journal)
By JJ Johnston
This past December, California's Civil Rights Department filed a lawsuit against Ralph's grocery stores for violations of the Fair Chance Act. According to the agency's news release, this is the first-ever lawsuit filed under the law. For more than three years, the CRD says, Ralph's illegally discriminated against job applicants with criminal backgrounds, "including by screening out otherwise qualified applicants on the basis of criminal histories that do not have any adverse relationship with the duties of the job for which they were applying."....read more.
Deconstructing Constructive Discharge (Daily Journal)
By JJ Johnston
When an employee quits his or her job, that action might not have been a personal choice.
Like a suspect's forced confession, a resignation may have been compelled rather than voluntary. A court might conclude that the worker had no real choice but to walk out the door....read more.
Common Misconceptions about PAGA Penalties (Daily Journal)
By JJ Johnston
The past year has shone a spotlight on California's Private Attorney General Act (PAGA). Between the
U.S. Supreme Court's decision in Viking River Cruises and the state Supreme Court's more recent ruling in Adolph v Uber, there has been no shortage of articles and analysis about the law. This coming fall, California voters could even throw the entire PAGA legislative scheme out the window....read more.
California Expands Protections for Whistleblowers (The Recorder)
By JJ Johnston
California cares about its workplace whistleblowers. Exactly four decades ago, state legislators enacted a law designed to protect employees who blew the whistle on their employers. Labor Code Section 1102.5 says that employers cannot prevent their employees from disclosing information to authorities when they believe that a rule or regulation is being or has been violated....read more.
Disability Discrimination - Testing is not Always Required (Daily Journal)
By JJ Johnston
Few employers would admit that they actually took an adverse action against and employee because that worker happened to be part of a protected class. However, without such an admission or other evidence that the discipline, demotion or termination was, in fact, tied to the employee's protective status, it can be challenging for plaintiffs to pursue employment discrimination claims....read more.