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The new year will bring along a variety of new obligations for California employers.  Although some of the new laws clarify existing law and provide helpful guidance, several impose additional requirements.  This update highlights key provisions of some of the more notable changes taking effect in 2017.  Links to the statutes and/or prior updates regarding the same are provided where applicable.
Continue Reading California Employers – New Year, New Rules in 2017

As most California employers know, the complex web of laws that govern employment in the state is vast and ever-expanding.  It just got more complicated.  The Fair Employment and Housing Council (“FEHC”) has issued new anti-discrimination and anti-harassment regulations that most California employers must comply with.  The new regulations will go into effect April 1, 2016.  It is critically important to understand these new regulations in order to avoid inadvertent violations and potential liability.  Among other things, the new regulations:…
Continue Reading California Employers: Get Ready for New FEHC Regulations Effective April 1st

This year the California Legislature added over a dozen new employment laws, many of which take effect on January 1, 2016.  Some of these laws impose new prohibitions on employers, while others provide positive benefits such as safe harbors, cure provisions, and employer incentives for reclassification of certain independent contractors.  This update highlights key provisions in some of the new laws taking effect January 1, 2016.  Links to the statutes are provided.
Continue Reading New Year, New Rules For Employers Doing Business in California

Under section 1032(b) of the California Code of Civil Procedure, “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding” unless some statute expressly says otherwise.  It has been California’s rule for over a decade that this provision allowed victorious defendants in cases under the Fair Employment and Housing Act (“FEHA”) to recover their costs of suit as a matter of right.  However, on May 4, 2015, the California Supreme Court issued its decision in Williams v. Chino Valley Independent Fire District, holding that the default rule of section 1032(b) is preempted by Government Code section 12965(b), a subsection of the FEHA that places the decision to award costs within the discretion of the trial court.
Continue Reading California Supreme Court Makes It Harder For Prevailing FEHA Defendants To Recover Their Costs

California employers with more than 50 employees must include “abusive conduct” prevention training in their mandatory harassment prevention training.  Assembly Bill No. 2053 expanded the scope of training required by Government Code Section 12950.1, which requires employers with 50 or more employees to provide at least two hours of harassment prevention training to supervisory employees for every two years, to also require “abusive conduct” prevention training. …
Continue Reading California Makes Anti-Bullying Training A Component Of Mandatory Harassment Training

On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California Fair Employment and Housing Act (FEHA).  In its decision, the Court also found that the affirmative defenses of unclean hands and after‑acquired evidence, which typically can limit an employee’s ability to obtain relief, are not complete defenses to FEHA claims brought by undocumented workers.  Under the Court’s ruling, employees who used false documentation to obtain employment not only may bring such a lawsuit but also can recover lost wages, emotional distress damages and attorneys’ fees, even if they actually were never legally entitled to work for the employer.
Continue Reading Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

It now should be clear to employers in California that the litigation rules are different as to what must be presented in discrimination lawsuits to succeed. Notably, just last week, in Alamo v. Practice Management Information Corp., B230909 (2nd Dist., Div. 7, Sept. 5, 2013), the California Court of Appeal held that the former versions of jury instructions – CACI Nos. 2430, 2500, 2505, and 2507 – are invalid in light of the California Supreme Court’s decision earlier this year in Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), because a FEHA discrimination claimant now is required to show that the protected status was a “substantial motivating reason” for the adverse action, and not merely “a motivating reason,” as the earlier versions of the jury instructions stated. The Alamo court also held that the employer was prevented from asserting the mixed motive defense at trial, because its answer did not put the plaintiff on notice that the defense was at issue. As such, going forward, an employer always should plead at the outset of the case (assuming that there is some basis for such an assertion) that it had a legitimate non discriminatory reason for the adverse employment decision, and that it would have made the same decision even in the absence of any purported unlawful motive.

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Continue Reading In the wake of the California Supreme Court’s Harris Decision, A FEHA Claimant Must Show Discrimination was a “Substantial Motivating Factor” and An Employer Waives its Mixed-Motive Defense by Failing to Assert It in Its Answer

By Melanie Hamilton 

On February 7, 2013, the California Supreme Court held that where a plaintiff proves that unlawful discrimination in violation of the Fair Employment and Housing Act ("FEHA") was a substantial factor motivating her termination, but the employer proves that it would have made the same employment decision absent such discrimination, the plaintiff may obtain only declaratory or injunctive relief and attorneys’ fees and costs, but may not recover damages, backpay, or reinstatement.…

Continue Reading California Supreme Court Holds That Proof That Employer Would Have Made Same Employment Decision Absent Discrimination Precludes Award Of Damages, Backpay, Or Reinstatement

Cuiellette v. City of Los Angeles (April 22, 2011) cautions employers that when an employee has been rated as 100% disabled for workers’ compensation purposes, the employer is not relieved of its duties under the Americans with Disabilities Act (“ADA”) and Fair Employment and Housing Act (“FEHA”). Practically speaking, a workers’ compensation rating, even as high as 100% disabled, does not mean that the employee cannot be a qualified individual entitled to an individualized assessment of his or her disability through an interactive process and a reasonable accommodation.…

Continue Reading A Workers’ Compensation Rating Of 100% Disabled Does Not Relieve An Employer Of Its Obligations Under The ADA And FEHA

Before filing suit under the California Fair Employment and Housing Act ("FEHA"), an employee must exhaust her administrative remedies with the Department of Fair Employment and Housing ("DFEH"). In the recently decided case of Wills v. Superior Court, the court gave little leeway to an employee, finding that she failed to exhaust her administrative remedies because her DFEH complaint only alleged discrimination based on a denial of family/medical leave, while her lawsuit raised different allegations of disability discrimination, retaliation, harassment, and failure to accommodate.…

Continue Reading Court Says Okay to Terminate Bipolar Employee Who Threatened Coworkers