Labor Employment Law Blog

By  Eric Raphan and Rebecca Hirschklau

On March 13, 2013, one year after we first introduced you to the idea that an individual’s unemployed status may be considered a protected characteristic, the New York City Council, voted into law legislation preventing companies from discriminating, in job advertisements or in the hiring process, against a job applicant who is unemployed. While New Jersey, Oregon and the District of Columbia have enacted similar laws, New York City has broken ground with Bill 814-A by granting unemployed applicants a private right of action, allowing them to sue alleged violators for damages in court - literally creating a new protected class of job applicants: the unemployed.

By Gregg Fisch and Danielle Levine

In the published portion of its recent decision in Rickards v. United Parcel Service, Inc., Case No. B234192 (filed June 19, 2012), the California Court of Appeal held that a complaining employee can satisfy the jurisdictional prerequisites for filing a lawsuit under the Fair Employment and Housing Act (“FEHA”) by simply submitting a complaint through the Department of Fair Employment and Housing’s (“DFEH”) online automated system.

By Rebecca Hirschklau and James Hays

The job market appears to be on an upswing, and with this upswing, and the advent of new technology, comes new challenges for employers and applicants alike. Potential employees may have online identities that many employers deem useful when investigating a job applicant. However, privacy settings on many social media sites allow an applicant to hide his/her online persona from these potential employers. As a result, a new trend in applicant background investigating has surfaced: asking an applicant for his/her username and password to social media sites during the interview process.

By Jennifer Redmond, Morgan Forsey, and Bram Hanono 

Employers with sales teams in California need to get ready. California has a new commission contract law, AB 1396, which takes effect January 1, 2013. Under AB 1396, which amends California Labor Code section 2751, employers who pay commissions to their employees are required to enter into written commission contracts with employees. The contract must describe the method by which commissions are computed and paid. Employers must also provide a copy of the signed contract to each employee, and get a signed receipt from each employee. That's the easy part. Here's the tricky part. Going forward, when a contract governing commissions expires without being replaced but the employee continues work, the terms of the “expired” contract will apply to commissions until the parties sign a new agreement or until the employment is terminated. As a result, it will be important to get new commission contracts in place before or when the old ones expire.

By James Hays and Rebecca Hirschklau

All employers are familiar with race, gender, age, disability and many other protected classifications under the myriad of Federal and state fair employment practices acts. It now appears that there is a growing trend to add “unemployed” to that list. While unemployment rates appear to be on the decline, 8.3 percent of the population remains unemployed, up more than 3 percent from where it was less than four years ago. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available. So much so that some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this recent development in job advertisements, Congress and several state legislative bodies have started to amend their anti-discrimination laws to add “unemployed status” as a protected class.

By Nick Schnermann & Gregg A. Fisch

On October 9, 2011, California Governor Jerry Brown finally addressed the bulk of the labor and employment-related bills passed by the California state legislature during the first half of the 2011-2012 session. Although Governor Brown vetoed several proposed bills on the stated ground that they potentially would harm California businesses, some of those bills he did sign into law likely will do just that when they officially become law on January 1, 2012. The new employment laws relate to various and diverse areas such as hiring practices, required leaves of absence, health insurance, and worker classification.

On June 30, 2011, the California Supreme Court handed down the decision in Sullivan v. Oracle Corporation, No. S170577 (June 30, 2011), tackling the issue of whether California wage law should apply to non-resident employees. By way of background, a class action settlement had eliminated all but a small portion of class claims concerning the exempt misclassification of Oracle "Instructors." The only remaining claims involved Instructors who were not California residents. While Oracle's headquarters are located in California, Oracle employed Instructors in 20 states, including California. The two claims at issue were claims for overtime arising (1) whether non-California resident Instructors who came to work in California for at least a full day or full week needed to be paid overtime under California rules governing daily and weekly overtime; and (2) whether Instructors who worked entirely outside California and were denied overtime under Fair Labor Standards Act ("FLSA") rules could recover FLSA overtime under the California Unfair Competition Law ("UCL"), Bus. & Prof. Code, § 17200 et seq.

In Louie Hung Kwei Lu v. Hawaiian Gardens Casino, Inc., et al., S171442, the California Supreme Court concluded that California Labor Code Section 351 does not provide a private cause of action for employees to recover any misappropriated tips from employers.

In the recent case of McCarther v. Pacific Telesis Group, the California Supreme Court clarified the scope of California Labor Code § 233, California’s “kin care” law. California Labor Code § 233 generally requires any employer that allows its employees to “accrue” sick leave to allow those employees to use a portion of that sick leave to attend to the illness of a child, parent, spouse, or domestic partner. In McCarther, the California Supreme Court clarified that California Labor Code § 233 does not universally apply to all paid sick leave policies, only those policies under which employees “accrue” or “bank” sick days. The Court specifically held that the statue does not apply to policies that provide for an uncapped number of compensated sick days. Employers with those policies do not have to provide any compensated time off for “kin care.”
 

California's Occupational Safety and Health Standards Board has voted to amend the Medical Services and First Aid Regulations set forth in the California Code of Regulations to require all employers to make provisions in advance to ensure that employees receive prompt medical treatment in the event that an employee is seriously injured or falls seriously ill. The amendment will take effect on September 26, 2009.

Faced with an $11.2 billion dollar budget shortfall, Governor Schwarzenegger announced a targeted employment stimulus package which is designed to generate new jobs, keep existing jobs and businesses in California, and lure others back to the state.  The Governor's plan includes seven different proposals to reinvigorate California's economy: