News & Analysis

Is requiring confidentiality in workplace investigations passé?

Can employers require employees who participate in personnel investigations to maintain confidentiality? Two key cases—one federal and one from the California Public Employment Relations Board (PERB)—have held that employers can't have a blanket rule requiring confidentiality in all instances. Because of these cases, many employers have altogether abandoned their prior policies requiring confidentiality. Others have settled on confidentiality admonitions that may not measure up to existing case law. Until the dust settles on this important area of personnel law, we suggest that a tailored, case-by-case approach to confidentiality admonitions is the best alternative.

Arbitration agreement deemed unconscionable beyond repair

A terminated employee sued for discrimination, retaliation, and wrongful termination. The company asked the court to compel arbitration of the dispute. The trial court denied the request, finding the arbitration agreement to be procedurally and substantively unconscionable, and it refused to sever the offending provisions. The California Court of Appeal affirmed the decision.

So close, yet so far—can of worms opens over settled lawsuit

The Beatles sang, "Yesterday, all my troubles seemed so far away. Now it looks as though they're here to stay. Oh, I believe in yesterday." The parties to a recent tumultuous employment case were singing the same tune when a settlement they had reached slipped through their fingers because of either a misunderstanding or potentially overly aggressive litigation tactics.

When he absolutely, positively has to get there . . . for three years

Military leave is protected under both the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and California's Military Veteran Code Section 395.06. Unlike almost any other protected leave, an employee who takes leave as a member of the military reserves not only is protected from discrimination but also is granted employment service credit just as if he had stayed on the job. But how do you figure out where in your organization an employee would be had he not left for three years? The 9th Circuit (whose rulings apply to all California employers) recently considered and analyzed that question.

Hollywood scandals generate new interest in workplace harassment

The past couple of months have been a little crazy. It seems like every day, we hear a new salacious story about inappropriate sexual behavior committed by various movers and shakers in La La Land and beyond.

Latino police officers receive most of $6.6M bias award

Following a nine-day trial, a jury found that the city of Westminster, California; the city's current police chief; and several former chiefs discriminated against three Latino police officers because of their race and national origin and retaliated against two of them for filing administrative complaints about the discrimination in violation of both state and federal law. The final verdicts entered by the trial court awarded the three officers $3,341,000 in general and punitive damages, $3,285,673 in attorneys' fees, $40,028 in expert fees, and $18,684 in costs—a total of more than $6.6 million! On appeal, the 9th Circuit upheld all of the awards except an award against a former chief who had died before the trial. That award was sent back to the district court to sort out probate issues.

9th Circuit upholds ULP charges at California medical center

Upholding a finding by the National Labor Relations Board (NLRB) that the Chino Valley Medical Center committed "serious and widespread" unfair labor practices (ULPs) before and after a union election, the 9th Circuit recently ruled that the clinic discharged a prominent union supporter for his protected activities. The court also agreed with the NLRB that the clinic must assemble all of its employees—on paid time with a union representative present—to listen to the reading of the official "Notice to Employees" the Board ordered to be posted that assures employees the clinic won't commit similar violations in the future.

Cure and punishment

In all of the attention recently given to Harvey Weinstein and his ilk, the focus has been on personalities and far too little of it on the systemic problem of ubiquitous sexual harassment. The discussion has been centered on punishment, with far too little said about the cure.

Court: Employer may be liable for sexual harassment by nonemployee

A hotel housekeeping employee was brutally raped by a trespasser while she was working at the hotel. The employee sued her employer for violating the California Fair Employment and Housing Act (FEHA) provisions requiring it to protect her from nonemployee sexual harassment. The hotel argued that the employee couldn't establish a valid claim under the FEHA because it didn't know the trespasser posed a risk to her before he appeared on its property, and her claim was therefore barred by the workers' compensation exclusivity rule. The trial court agreed with the hotel, but the appellate court found the employee had established a valid claim for sexual harassment by a nonemployee.

Taxi drivers: employees or independent contractors?

With lawsuits against ride-sharing companies like Uber and Lyft in the news, the issue of whether a worker is an independent contractor or an employee has been getting quite a bit of attention recently. The following case involved an employee performing what now seems like an almost old-fashioned occupation: taxicab driver. The trial court found the taxi driver was an independent contractor, but the court of appeal concluded the trial court applied the wrong standard and sent the case back to the lower court with instructions on the correct standard to apply.