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Advising California Employers and Employees

Be ready to deal with virtually any workplace issue your clients may face.

Be ready to deal with virtually any workplace issue your clients may face.

  • Hiring guidelines and employment contracts
  • Immigration law for employers
  • Wages and hours; family and medical leave
  • Employee handbooks
  • Protecting trade secrets; noncompetition covenants
  • Privacy issues in the workplace
  • Employer liability for employee acts; insurance coverage
  • Discrimination, harassment, and retaliation claims
  • Whistleblower issues and workplace investigations
  • Wrongful termination; reductions in force
  • Mediation and arbitration of employment disputes
  • Auditing your client’s workplace practices
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Be ready to deal with virtually any workplace issue your clients may face.

  • Hiring guidelines and employment contracts
  • Immigration law for employers
  • Wages and hours; family and medical leave
  • Employee handbooks
  • Protecting trade secrets; noncompetition covenants
  • Privacy issues in the workplace
  • Employer liability for employee acts; insurance coverage
  • Discrimination, harassment, and retaliation claims
  • Whistleblower issues and workplace investigations
  • Wrongful termination; reductions in force
  • Mediation and arbitration of employment disputes
  • Auditing your client’s workplace practices

1

Hiring Guidelines and Pitfalls

Lawrence J. Gartner

Ethan Chernin

Stefanie M. Gushá

  • I. OVERVIEW 1.1
  • II. RECRUITING
    • A. Avoiding Discrimination Claims
      • 1. Using Employment Agencies and Hiring Halls 1.2
      • 2. Recruiting at Schools and Colleges 1.3
      • 3. Newspaper Advertisements 1.4
    • B. Recruiting During a Labor Dispute 1.5
    • C. Raiding Other Employers 1.6
    • D. Foreign Labor Contractors 1.6A
  • III. JOB QUALIFICATIONS
    • A. Hiring Standards Must Pass Business-Necessity Test 1.7
    • B. Age 1.8
    • C. Citizenship, National Origin, and Ancestry 1.9
    • D. Sexual Orientation 1.10
    • E. Financial Circumstances 1.11
    • F. Dress and Personal Appearance Standards 1.12
    • G. Rehabilitated Drug and Alcohol Users 1.13
    • H. Education Requirements 1.14
    • I. English Fluency 1.15
    • J. Physical Abilities and Mental Health 1.16
    • K. Medical Condition 1.17
    • L. Spouses and Family Members Working Together 1.18
    • M. Veterans 1.19
    • N. Caregivers 1.19A
  • IV. APPLICATIONS AND PRE-EMPLOYMENT INTERVIEWS
    • A. Applications
      • 1. Application Form Is Source of Useful Information 1.20
      • 2. Applicant's Copy 1.21
    • B. Interview Restrictions
      • 1. Non-Job-Related Questions 1.22
      • 2. Specific Topics
        • a. Age 1.23
        • b. Marital Status 1.24
        • c. Pregnancy 1.25
        • d. Disability or Medical Condition
          • (1) Prohibited Inquiries 1.26
          • (2) Permitted Inquiries Concerning Ability 1.27
        • e. Religion 1.28
        • f. Criminal Record 1.29
        • g. Questions About Discipline for Sexual Harassment Permitted 1.30
      • 3. Agency Form: Employment Inquiries: What Can Employers Ask Applicants and Employees? (DFEH-161) 1.31
  • V. REFERENCES AND BACKGROUND CHECKS
    • A. References From Former Employers 1.32
    • B. Credit History and Other Background Checks
      • 1. Governing Law 1.33
      • 2. Federal Requirements for Employers 1.34
      • 3. California Law
        • a. Consumer Credit Reporting Agencies Act 1.35
        • b. Lab C §1024.5 1.35A
        • c. Investigative Consumer Reporting Agencies Act 1.36
      • 4. Procedural Requirements 1.37
        • a. Notice of Intention to Obtain Report 1.38
          • (1) Under Fair Credit Reporting Act 1.39
          • (2) Under Consumer Credit Reporting Agencies Act 1.40
          • (3) Under California Investigative Consumer Reporting Agencies Act 1.41
        • b. Applicant's Authorization 1.42
        • c. Employer Certification of Compliance 1.43
        • d. Employer Obligation to Provide Applicant With Copy of Report 1.44
        • e. Employer's Obligations When Employment Is Denied on Basis of Consumer Report 1.45
      • 5. Information That May Not Be Included in Consumer Report 1.46
      • 6. Form: Notice and Disclosure 1.47
      • 7. Form: Certification to Credit Reporting Agency 1.48
      • 8. Form: Certificate of Compliance by Agency 1.49
      • 9. Form: Notification of Request for Investigative Consumer Report 1.50
      • 10. Form: Authorization to Obtain Investigation Reports 1.51
      • 11. Form: Pre-Adverse Action Disclosure 1.52
      • 12. Form: Summary of Rights Under Fair Credit Reporting Act 1.53
      • 13. Form: Post-Adverse Action Disclosure 1.54
      • 14. Form: Notification of Intent to Procure Investigative Consumer Report 1.55
    • C. Employee Misrepresentations 1.56
  • VI. PRE-EMPLOYMENT TESTING
    • A. General Education or Intelligence Tests 1.57
    • B. Psychological Tests 1.58
    • C. Polygraph Tests
      • 1. Federal Law 1.59
      • 2. California Law 1.60
    • D. Voice Stress Analysis 1.61
    • E. Fingerprints and Photographs 1.62
    • F. Medical and Physical Examinations Given Only After Job Offer 1.63
    • G. AIDS Testing 1.64
    • H. Drug Tests Permissible 1.65
  • VII. RECOMMENDATIONS FOR REDUCING THE RISK OF LIABILITY
    • A. Statements Made During Recruitment 1.66
      • 1. Avoiding Claims of Misrepresentation 1.67
        • a. Do Not Falsely Induce Employee Relocation 1.68
        • b. Covenant of Good Faith and Fair Dealing Is Implied in Employment Offer 1.69
        • c. Use Checklist of Terms of Employment 1.70
      • 2. Avoiding Claims of Implied Contract
        • a. Use Written At-Will Provisions 1.71
        • b. Do Not Assure Term of Job 1.72
    • B. Follow Step-by-Step ADA/FEHA Hiring Guidelines 1.73
    • C. Use Care in Hiring 1.74
  • VIII. CHECKLISTS
    • A. Checklist: Paperwork for New Employees 1.75
    • B. Checklist: Trade Secret Concerns in Interviewing Applicant 1.76
    • C. Checklist: Issues to Consider Before Implementing Employee Testing 1.77
  • IX. FORMS
    • A. Form: Application for Employment 1.78
    • B. Form: Applicant's Statement 1.79
    • C. Form: Notification of Rejection of Application 1.80
    • D. Form: Employment Offer Letter 1.81
    • E. Form: Mutual Agreement to Arbitrate Claims 1.82
    • F. Form: Authorization for Job-Related Medical Examination and Drug-Testing and for Release of Information 1.83
    • G. Form: Sample Job Description Questionnaire 1.84
    • H. Form: Sample Job Description for Receptionist 1.85

2

Employment Contracts and Executive Compensation

Margaret Hart Edwards

Kate West Rowan

Michael Pedhirney

  • I. GENERAL CONSIDERATIONS IN USE OF EMPLOYMENT CONTRACTS
    • A. Overview of Benefits to Employer 2.1
      • 1. Anticipating Termination of Employment 2.2
      • 2. Exercising Business Control Over an Employee 2.3
      • 3. Attracting and Retaining Employees for a Period or Purpose 2.4
      • 4. Protecting the Employer's Intellectual Property 2.5
      • 5. Agreeing on Alternative Forums for Dispute Resolution 2.6
    • B. Drafting Considerations
      • 1. Gathering Relevant Background Information 2.7
      • 2. Other Legal Considerations
        • a. Reporting Requirements 2.8
        • b. Conflicts of Interest 2.9
  • II. EMPLOYMENT CONTRACT PROVISIONS
    • A. General Comment on Use of Forms 2.10
    • B. Preliminary Matters
      • 1. Form: Preamble to Employment Contract 2.11
      • 2. Recitals
        • a. Purpose 2.12
        • b. Form: Recitals 2.13
    • C. Term of Employment
      • 1. Drafting Considerations 2.14
        • a. At-Will Employment
          • (1) Erosion of At-Will Nature of Employment 2.15
          • (2) Including At-Will Clause in Employment Contract 2.16
        • b. Indefinite Term 2.17
        • c. Specified Term 2.18
      • 2. Form: Term of Employment 2.19
    • D. Form: Place of Employment 2.20
    • E. Employee's Duties and Authority
      • 1. Describing Duties in Broad Terms 2.21
      • 2. Form: Employee's Duties and Authority 2.22
    • F. Employee's Outside Business Activities
      • 1. Duty Not to Engage in Conflicting Activities 2.23
      • 2. Drafting Considerations 2.24
      • 3. Form: Outside Business Activities Precluded or Restricted 2.25
      • 4. Form: Reasonable Time and Effort Required 2.26
      • 5. Form: Covenant Not to Compete During Employment Term 2.27
      • 6. Form: Morality Clause 2.28
      • 7. Consulting Arrangement
        • a. Drafting Considerations 2.29
        • b. Form: Consulting Services 2.30
    • G. Employee's Compensation and Benefits
      • 1. Planning Executive Compensation 2.31
        • a. Salary 2.32
        • b. Deferred Compensation 2.33
        • c. Incentives 2.34
        • d. Benefits 2.35
      • 2. Form: Base Salary 2.36
      • 3. Form: Adjustment to Base Salary 2.37
      • 4. Form: Incentive Compensation 2.38
      • 5. Form: Stock Bonus 2.39
      • 6. Form: Stock Options 2.40
      • 7. Form: Cash Bonus 2.41
      • 8. Form: Commissions 2.42
      • 9. Form: Royalties 2.43
      • 10. Form: Deferred Compensation 2.44
      • 11. Additional Benefits 2.45
        • a. Form: Additional Benefits 2.46
        • b. Form: Vacation 2.47
        • c. Board Membership 2.48
        • d. Form: Board Membership 2.49
        • e. Expenses
          • (1) Drafting Considerations 2.50
          • (2) Form: Expense Reimbursement 2.51
        • f. Form: Automobile Allowance 2.52
        • g. Form: Life Insurance 2.53
      • 12. Repayment of Compensation Held Excessive
        • a. Tax Considerations in Drafting 2.54
        • b. Form: Repayment of Compensation Held Excessive 2.55
    • H. Ownership of Intangibles
      • 1. Drafting Considerations 2.56
      • 2. Form: Ownership of Intangibles 2.57
        • a. Proprietary Information Obligations 2.58
          • (1) Protecting Confidential Information 2.59
          • (2) Restraint of Unfair Competition After Employment Termination 2.60
      • 3. Form: Proprietary Information Obligations 2.61
      • 4. Form: Noninterference 2.62
      • 5. Form: Noncompetition [Deleted] 2.63
      • 6. Form: Use of Employee's Name and Image 2.64
    • I. Indemnification of Employee
      • 1. Need for Indemnification Provisions 2.65
      • 2. Form: Indemnification by Employer 2.66
      • 3. Form: Employer-Provided Indemnity Insurance 2.67
      • 4. Form: Qualification for Surety Bond 2.68
      • 5. Form: Indemnification by Employee 2.69
    • J. Termination of Agreement
      • 1. Provisions Regarding Termination
        • a. Termination of Employment 2.70
        • b. Effect of Mergers, Transfers of Assets, or Dissolutions 2.71
      • 2. Form: Termination of Employment; Termination Date 2.72
        • a. Form: Involuntary Termination 2.73
          • (1) Form: Termination Payment 2.74
          • (2) Form: Termination of Employment by Employee 2.75
        • b. Form: Termination for Cause 2.76
        • c. Form: Termination on Resignation 2.77
        • d. Form: Termination on Retirement 2.78
        • e. Form: Termination Because of Disability 2.79
        • f. Form: Termination on Death 2.80
      • 3. Form: Employer Has Right to Terminate or Assign Agreement 2.81
      • 4. Form: Agreement Survives Combination or Dissolution 2.82
      • 5. Form: Rights and Obligations After Notice of Termination 2.83
      • 6. Duty of Cooperation After Termination 2.84
      • 7. Form: Other Benefits 2.84A
      • 8. Form: IRC §409A 2.84B
    • K. Resolving Disputes
      • 1. Arbitration
        • a. Drafting Considerations 2.85
        • b. Form: Arbitration 2.86
      • 2. Injunction
        • a. Drafting Considerations 2.87
        • b. Form: Injunction 2.88
      • 3. Liquidated Damages
        • a. Drafting Considerations 2.89
        • b. Form: Liquidated Damages for Employer 2.90
        • c. Form: Liquidated Damages for Employee 2.91
      • 4. Form: Statute of Limitations 2.91A
    • L. Miscellaneous Provisions
      • 1. Form: Integration 2.92
      • 2. Form: Choice of Law 2.93
      • 3. Form: Notices 2.94
      • 4. Form: Severability 2.95
      • 5. Form: Employee's Representations 2.96
      • 6. Form: Counterparts 2.97
      • 7. Form: Successors and Assigns 2.98
      • 8. Form: Attorney Fees 2.99
      • 9. Form: Amendments 2.100
      • 10. Form: No Third Party Rights 2.101
    • M. Form: Execution 2.102
  • III. EXECUTIVE COMPENSATION
    • A. Types of Compensation Generally 2.103
    • B. Cash Compensation 2.104
      • 1. Base Salary 2.105
      • 2. Cash Commissions 2.106
      • 3. Bonuses and Incentive Bonus Plans 2.107
    • C. Equity or Equity-Related Compensation 2.108
      • 1. Publicly Traded Company Considerations 2.109
      • 2. General Tax Rules 2.110
      • 3. Restricted Stock 2.111
      • 4. Stock Options 2.112
        • a. Incentive Stock Options 2.113
        • b. Nonqualified Stock Options 2.114
      • 5. Phantom Stock and Stock Appreciation Rights (SARs) 2.115
    • D. Deferred Compensation 2.116
    • E. Other Types of Compensation
      • 1. Severance Benefits 2.117
      • 2. Below-Market Loans 2.118
    • F. Miscellaneous Issues
      • 1. Parachute Payments 2.119
      • 2. Excess Employee Remuneration 2.120

3

Independent Contractors, Leased Workers, and Outsourcing

Arthur Chinski

  • I. SCOPE OF CHAPTER 3.1
  • II. TERMINOLOGY 3.2
  • III. ADVISING CLIENT ON ADVANTAGES AND DISADVANTAGES OF USING INDEPENDENT CONTRACTORS
    • A. Preliminary Considerations 3.3
    • B. Potential Advantages in Using Independent Contractors 3.4
    • C. Disadvantages in Using Independent Contractors 3.5
  • IV. CHART: TESTS THAT DETERMINE WHETHER WORKER IS INDEPENDENT CONTRACTOR OR EMPLOYEE 3.6
    • A. California Law
      • 1. State Income Tax Withholding 3.7
        • a. Restatement Test 3.8
        • b. Common-Law-Based Control Factors Determining Employment Status 3.9
      • 2. California Unemployment and Disability Insurance
        • a. Taxes and Contributions 3.10
        • b. Common-Law Control Test Applied for Unemployment and Disability Insurance Purposes 3.11
      • 3. California Workers' Compensation 3.12
        • a. Definitions of "Employer" and "Employee" in California Workers' Compensation Law 3.13
        • b. Presumption of Employment 3.14
        • c. Licensed Contractor 3.15
        • d. Definition of Independent Contractor in California Workers' Compensation Law 3.16
        • e. Test Under the Borello Decision 3.17
      • 4. Areas Other Than Workers' Compensation Where Borello Test May Apply 3.18
    • B. Federal Law
      • 1. Payroll Taxes
        • a. Social Security and Medicare Contributions (FICA) 3.19
        • b. Federal Unemployment Tax 3.20
        • c. Tests Determining Worker Classification for Federal Payroll Tax Purposes
          • (1) Classification by IRS Based on Common-Law Control Test 3.21
            • (a) Revenue Ruling 87–41: Source of 20 "Control of Work" Factors 3.22
            • (b) The "Safe Harbor" Provision 3.23
          • (2) Classification of Corporate Officers as Statutory Employees 3.24
          • (3) Other Statutory Employees 3.25
      • 2. Title VII of the Civil Rights Act (EEOC)
        • a. Prohibited Acts 3.26
        • b. Definitions of Employer, Employee, and Independent Contractor Under Title VII
          • (1) Employer 3.27
          • (2) Employee 3.28
          • (3) Independent Contractor 3.29
        • c. Tests Determining Status Under Title VII
          • (1) "Economic Realities" Test 3.30
          • (2) EEOC Test 3.31
      • 3. National Labor Relations Act 3.32
        • a. Employees and Independent Contractors Under the NLRA 3.33
        • b. Common-Law Agency Test 3.34
      • 4. Fair Labor Standards Act 3.35
        • a. Employer, Employee, and Independent Contractor Under the FLSA 3.36
        • b. Ninth Circuit "Economic Realities" Test 3.37
    • C. The "Smell Test" 3.38
  • V. EMPLOYING LEASED WORKERS
    • A. Increasing Use of Leased Workers 3.39
    • B. Risk of Joint-Employer Status 3.40
      • 1. Applicability of Title VII to Joint Employers 3.41
      • 2. Applicability of Fair Labor Standards Act to Joint Employers 3.42
      • 3. Applicability of Family Medical Leave Act to Joint Employers 3.43
      • 4. Applicability of National Labor Relations Act to Joint Employers 3.44
      • 5. Special Employment and Workers' Compensation Liability 3.45
      • 6. California Unemployment and Disability Compensation 3.46
      • 7. Tax Liability 3.47
  • VI. POTENTIAL PENALTIES FOR MISCLASSIFICATION 3.48
    • A. Chart: Penalties for Misclassifying Employee as Independent Contractor 3.49
    • B. Failure to Withhold/Contribute Payroll Taxes
      • 1. IRS Sanctions 3.50
      • 2. EDD Sanctions 3.51
      • 3. Severity of Combined State and Federal Penalties; IRS Authority to Compromise Assessments 3.52
      • 4. Statutes of Limitations 3.53
    • C. Potential Penalties Imposed by Workers' Compensation Appeals Board 3.54
    • D. Penalties Under National Labor Relations Act 3.55
    • E. Liability for Minimum Wages and Overtime
      • 1. Potential Penalties 3.56
      • 2. Statutes of Limitations 3.57
    • F. Employee Benefits 3.58
  • VII. AUDIT CONSIDERATIONS
    • A. IRS and EDD Usually Audit 3.59
    • B. EDD Audit Procedures
      • 1. Investigation 3.60
      • 2. Assessment 3.61
      • 3. Appeal 3.62
    • C. IRS Audit Procedures
      • 1. Investigation 3.63
      • 2. Appeal of Determination 3.64
      • 3. Correcting Retirement Plan Errors 3.64A
  • VIII. DATA SUMMARIZING LEGAL STATUS OF EMPLOYMENT RELATIONSHIPS
    • A. Chart: Industry-Specific Rulings and Guidelines 3.65
    • B. Chart: California and Federal Statutory Exceptions to General Rules Governing Employees 3.66
  • IX. FORMS
    • A. Form: Sample Independent Contractor Data Sheet 3.67
    • B. Form: Sample Agreement Between Principal and Independent Contractor 3.68

4

Immigration Law Requirements for Employers

Mitchell L. Wexler

Michael H. Boshnaick

  • I. SCOPE OF CHAPTER 4.1
  • II. TO WHOM DOES IRCA APPLY? 4.2
  • III. REQUIREMENTS FOR EMPLOYERS
    • A. Summary 4.3
    • B. Hiring Obligations 4.4
      • 1. Acceptable Documents 4.5
        • a. To Establish Both Identity and Employment Authorization 4.6
        • b. To Establish Identity Only 4.7
        • c. To Establish Employment Authorization Only 4.8
        • d. Receipts in Place of Required Documents 4.9
      • 2. Employer Document Examining Procedures 4.10
      • 3. Form I-9 is Evidence of Compliance 4.11
      • 4. Form: Employment Eligibility Verification (Form I-9) 4.12
    • C. Document Retention Requirements; DHS Inspection 4.13
    • D. I-9 Electronic Signatures and Storage 4.14
    • E. Social Security Administration "Mismatch Letters" 4.14A
    • F. E-Verify; IMAGE Program 4.14B
  • IV. EMPLOYEE STATUS
    • A. Who Is an "Unauthorized Alien"? 4.15
    • B. Aliens Eligible for Employment 4.16
    • C. Restricted Categories 4.17
    • D. Independent Contractors 4.18
    • E. Employees Hired From State Employment Agency 4.19
  • V. RECRUITERS AND REFERRERS 4.20
  • VI. INVESTIGATIONS 4.21
  • VII. PENALTIES 4.22
    • A. Hiring Violations 4.23
    • B. Paperwork Violations 4.24
    • C. Criminal Violations
      • 1. "Pattern or Practice" Violations 4.25
      • 2. Penalties: Fines, Imprisonment, Civil Sanctions 4.26
    • D. Indemnification Against Employer Liability Prohibited 4.27
  • VIII. ANTIDISCRIMINATION PROVISIONS
    • A. Prohibited Conduct 4.28
    • B. Exceptions 4.29
    • C. Penalties 4.30
  • IX. CALIFORNIA UNFAIR IMMIGRATION PRACTICES 4.30A
  • X. CHECKLIST: ESTABLISHING EMPLOYMENT PRACTICES THAT COMPLY WITH IMMIGRATION LAWS 4.31
  • XI. CHECKLIST: IDENTITY AND EMPLOYMENT AUTHORIZATION DOCUMENTS 4.32
  • XII. HIRING FOREIGN NATIONALS 4.33
    • A. Client Representation 4.34
    • B. Temporary Categories: Nonimmigrant Visa Categories 4.35
    • C. Nonimmigrant Status Categories That Require Petition to USCIS
      • 1. H-1B Specialty Occupations 4.36
        • a. Dual Intent Permitted 4.37
        • b. Prevailing Wage Requirement 4.38
        • c. Labor Condition Application 4.39
        • d. Filing Petition With USCIS 4.40
        • e. Authorized Work Period 4.41
        • f. Where to Obtain H-1B Visas 4.42
        • g. Change of Status 4.43
        • h. Presumption of Fraud 4.44
        • i. Extension of H-1B Status 4.45
      • 2. L-1 Intracompany Transferee 4.46
        • a. Qualification for L-1 Status 4.47
        • b. Procedure for Applying for L-1 Status 4.48
      • 3. O-1 Extraordinary Ability or Achievement 4.49
    • D. Nonimmigrant Status Categories That Do Not Require Petition to USCIS
      • 1. Generally 4.50
      • 2. E-1 and E-2: Treaty Traders and Treaty Investors 4.51
      • 3. E-3: Australian Specialty Occupation Workers 4.51A
        • a. Methods for Obtaining Visa 4.52
          • (1) Treaty Trader (E-1) Status 4.53
          • (2) Treaty Investor (E-2) Status 4.54
        • b. Specific Procedures for E Status 4.55
      • 4. J-1 Exchange Visitors 4.56
        • a. Procedure 4.57
        • b. Requirement to Return to Home Country 4.58
        • c. Application to Waive J-1 Home Return Requirement 4.59
      • 5. F-1 Students 4.60
      • 6. B-1 Business Visitors 4.61
      • 7. TN Canadian and Mexican Professionals 4.62
      • 8. Other Nonimmigrant Visa Categories 4.63
  • XIII. PERMANENT RESIDENCE; IMMIGRATION THROUGH EMPLOYMENT 4.64
    • A. Immigrant Visa Categories
      • 1. First Preference: Priority Workers 4.65
        • a. Persons With Extraordinary Ability 4.66
        • b. Outstanding Professors and Researchers 4.67
        • c. Multinational Executives and Managers 4.68
      • 2. Second Preference: Workers With Advanced Degrees or Exceptional Ability 4.69
        • a. Advanced Degree Professionals 4.70
        • b. Persons of Exceptional Ability 4.71
      • 3. Third Preference: Skilled or Unskilled Workers Without Advanced Degrees 4.72
        • a. Skilled Workers 4.73
        • b. Professional Workers Without Advanced Degree 4.74
        • c. Unskilled Workers 4.75
    • B. Labor Certification 4.76
      • 1. Schedule A 4.77
      • 2. Filing PERM Labor Certification Applications 4.78
      • 3. Ban on Sale, Barter, or Purchase of Labor Certifications, and on Certain Payments 4.79
      • 4. PERM Prefiling Recruitment 4.80
      • 5. DOL Audits 4.81
    • C. Immigrant Petition 4.82
    • D. Immigrant Visa Application 4.83
      • 1. Consular Processing 4.84
      • 2. Adjustment of Status 4.85

5

Wage and Hour Laws

Richard S. Rosenberg

Jeffrey P. Fuchsman

Matthew T. Wakefield

  • I. OVERVIEW OF APPLICABLE LAW 5.1
    • A. Basic Federal Statutes 5.2
    • B. California Regulatory Scheme: Wage Orders 5.3
  • II. APPLICATION OF THE FLSA
    • A. Requires Employer-Employee Relationship 5.4
    • B. Joint Employer Relationship 5.4A
    • C. "In Commerce" Requirement 5.5
      • 1. Employee Test 5.6
        • a. "Engaged in Commerce" 5.7
        • b. "Engaged in the Production of Goods for Commerce" 5.8
        • c. Employees of Not-for-Profit Organizations 5.9
      • 2. Enterprise Test 5.10
        • a. Family Business Exception 5.11
        • b. Public Entities 5.12
        • c. Indian Tribes 5.12A
  • III. COVERAGE UNDER CALIFORNIA LAW 5.13
  • IV. WAGE REQUIREMENTS
    • A. Information to Be Provided to Employees on Hire 5.13A
    • B. Employment Agreement Requirements 5.13B
    • C. Pay Periods 5.14
    • D. Method of Payment 5.14A
    • E. Itemized Wage Statements 5.14B
    • F. Sick Pay Statements 5.14C
    • G. Pay for Reporting to Work 5.15
    • H. Split-Shift Premiums 5.15A
    • I. Payment of Wages on Termination of Employment 5.16
    • J. Payment of Commissions on Termination of Employment 5.16A
    • K. Payment of Bonuses and Other Incentives on Termination of Employment 5.16B
    • L. Minimum Wage
      • 1. Basic Rate
        • a. Adult Employees 5.17
        • b. Minors and Learners 5.18
      • 2. Crediting of Tips Toward Minimum Wage
        • a. Under the FLSA 5.19
        • b. Under California Law 5.20
      • 3. Meal and Lodging Credits 5.21
    • M. Overtime Compensation
      • 1. General Rules
        • a. Under California Law 5.22
        • b. Under the FLSA 5.23
      • 2. The Workweek
        • a. Under the FLSA and California Law 5.24
        • b. Alternative Workweek Arrangements in California 5.25
        • c. Make-Up Time Exception in California 5.26
      • 3. The Regular Rate
        • a. Hourly Employees 5.27
        • b. Salaried Employees 5.28
        • c. Fluctuating Workweek
          • (1) Under the FLSA 5.29
          • (2) Not Permitted Under California Law 5.30
          • (3) Example Illustrating Differences Between Federal and State Approach 5.31
        • d. Piece-Rate Employees 5.32
        • e. Different Rates of Pay for Different Types of Work
          • (1) Under California Law 5.33
          • (2) Under the FLSA 5.34
        • f. Noncash Wages and Commissions 5.35
      • 4. Exclusions From the Regular Rate
        • a. Gifts and Special Occasion Bonuses 5.36
        • b. Payment for Hours Not Worked or Expenses 5.37
        • c. Discretionary Bonuses and Payments to Certain Benefit Plans 5.38
        • d. Other Benefit Plan Contributions 5.39
        • e. Stock Options and Other Equity Devices 5.40
        • f. Premium Pay for Overtime 5.41
      • 5. Different Overtime Rules for Different Industries 5.42
    • N. Equal Pay for Substantially Similar Work, Regardless of Gender, Race, or Ethnicity 5.42A
    • O. Compensatory Time Off 5.43
    • P. Tips 5.44
  • V. DETERMINING HOURS WORKED
    • A. Generally
      • 1. Under California Law 5.45
      • 2. Under the FLSA 5.46
    • B. Preparatory and Concluding Activities 5.47
    • C. Rest, Recovery, and Meal Periods
      • 1. Under California Law 5.48
      • 2. Under the FLSA 5.49
    • D. Waiting Time/On-Call Time 5.50
    • E. Sleeping Time 5.51
    • F. Travel Time
      • 1. California Law 5.52
      • 2. Federal Law 5.53
    • G. Training Time 5.54
    • H. Trainees and Interns 5.54A
    • I. Volunteers 5.54B
    • J. Rounding of Time Entries 5.54C
    • K. Off-the-Clock Work 5.54D
    • L. Other Limitations on Time Worked 5.55
  • VI. EXEMPTIONS FROM MINIMUM WAGE AND OVERTIME REQUIREMENTS
    • A. California Exemptions 5.56
      • 1. Executive Exemption 5.57
      • 2. Administrative Exemption 5.58
      • 3. Professional Exemption 5.59
      • 4. Exempt Treatment of Other Particular Occupations
        • a. Computer-Related Professionals 5.60
        • b. Outside Salespersons 5.61
        • c. Commissioned Salespersons 5.61A
        • d. Other Exemptions 5.61B
    • B. Under Federal Law 5.62
      • 1. Executive Exemption 5.63
        • a. Salary Basis 5.64
        • b. Primary Duty 5.65
        • c. Supervisory Position 5.66
        • d. Authority to Hire or Fire 5.67
      • 2. Administrative Exemption 5.68
        • a. Salary Basis 5.69
        • b. Primary Duty 5.70
        • c. Exercise of Discretion and Independent Judgment 5.71
      • 3. Professional Exemption
        • a. Learned Professional 5.72
          • (1) Salary Basis 5.73
          • (2) Primary Duty 5.74
        • b. Creative Professional 5.75
      • 4. Exempt Treatment of Other Particular Occupations
        • a. Computer-Related Professionals 5.76
        • b. Outside Salespersons 5.77
        • c. Certain Agricultural Workers 5.78
      • 5. Miscellaneous Exemptions
        • a. From Both Minimum Wage and Overtime Requirements 5.79
        • b. From Overtime Requirements Only 5.80
  • VII. CHILD LABOR
    • A. California Law
      • 1. Limitations on Employment 5.81
      • 2. Wages and Hours 5.82
    • B. Federal Law
      • 1. Application of the FLSA 5.83
      • 2. Prohibition Against "Oppressive Child Labor" 5.84
        • a. Hazardous Occupations 5.85
        • b. Limited Occupations for Minors 14 and 15 Years Old 5.86
        • c. Waivers 5.87
    • C. Chart: Child Labor Laws 5.88
  • VIII. RESPONSIBILITY FOR UNIFORMS, EQUIPMENT, PROPERTY LOSS, AND SALES ADJUSTMENTS
    • A. Employee/Employer Responsibility
      • 1. Uniforms 5.89
      • 2. Tools and Equipment 5.89A
      • 3. Shortages, Breakage, or Losses 5.89B
      • 4. Adjustments, Charge Backs, or Deductions 5.89C
      • 5. Indemnification 5.89D
      • 6. Employer-Provided Training Costs 5.89E
  • IX. MANDATORY WORKING CONDITIONS
    • A. Changing Rooms and Resting Facilities 5.89F
    • B. Seating 5.89G
    • C. Temperature 5.89H
    • D. Other Requirements 5.89I
  • X. ENFORCEMENT
    • A. California Wage and Hour Laws
      • 1. Investigation and Hearings 5.90
      • 2. Enforcement of Judgments by Labor Commissioner 5.90A
      • 3. Subpoenas 5.91
      • 4. Civil Actions; Remedies Available 5.92
      • 5. Unfair Competition Claims 5.92A
      • 6. Class Actions 5.93
      • 7. Class Actions and Arbitration 5.93A
      • 8. Class Action Settlements 5.93B
      • 9. Statute of Limitations 5.94
      • 10. Criminal Actions 5.95
      • 11. Civil Penalties 5.96
      • 12. Labor Code Private Attorneys General Act 5.97
        • a. More Serious Violations 5.98
        • b. Other Labor Code Violations 5.99
        • c. Health and Safety Violations 5.100
      • 13. Punitive Damages 5.100A
      • 14. Settlements and Releases of Claims Under California Law 5.100B
      • 15. Successor Liability Under California Law 5.100C
      • 16. Joint Employer Liability With Labor Contractor 5.100D
      • 17. Owner, Director, Officer, or Managing Agent Liability 5.100E
    • B. Federal Enforcement of Wage and Hour Laws
      • 1. Investigations and Inspections 5.101
      • 2. Civil Actions
        • a. Remedies Available in Suits by the Department of Labor 5.102
        • b. Remedies Available in Private Suits 5.103
        • c. Successor Liability Under Federal Law 5.103A
        • d. Union Employees May Bypass Grievance and Arbitration Procedure 5.104
        • e. Statute of Limitations 5.105
      • 3. Criminal Actions 5.106
      • 4. Settlements and Releases of Claims Under Federal Law 5.106A
  • XI. WAGE AND HOUR REQUIREMENTS FOR GOVERNMENT CONTRACTORS
    • A. Walsh-Healey Public Contracts Act 5.107
    • B. Davis-Bacon Act 5.108
    • C. Copeland Act 5.109
    • D. Contract Work Hours Standards Act 5.110
    • E. McNamara-O'Hara Service Contract Act 5.111
  • XII. WAGE GARNISHMENTS
    • A. Earnings Withholding Orders 5.112
    • B. Employees and Earnings Subject to Order 5.113
    • C. Service of Withholding Orders 5.114
    • D. Employer's Procedure After Service
      • 1. Notice to Employee 5.115
      • 2. Determining Withholding Periods, Amounts; Priority
        • a. Withholding Period 5.116
        • b. Amount to Be Withheld 5.117
        • c. Priorities of Conflicting Levies and Assignments 5.118
      • 3. Employer's Return 5.119
      • 4. Remitting Withheld Earnings 5.120
    • E. Notice of Termination or Modification 5.121

6

Vacations, Family and Medical Leave, and Other Time Off

Deborah Crandall Saxe

Kamran Mirrafati

Lori Bien

  • I. VACATIONS
    • A. Right to Paid Vacation Benefits
      • 1. Employer Agreement Requirement 6.1
      • 2. Waiting Period 6.2
      • 3. "Use It or Lose It" Policy 6.3
      • 4. Limit on Accrual of Vacation 6.4
      • 5. Accelerating Accrual 6.5
      • 6. Payment on Termination of Employment 6.6
      • 7. Recovery of Vacation Pay Advances 6.7
    • B. Employee Actions for Unpaid Vacation Benefits 6.8
    • C. Funded Vacation Plans and ERISA 6.9
    • D. Checklist: Guidelines for Drafting Vacation Policy 6.10
  • II. SICK LEAVE
    • A. All California Employers Must Provide Paid Sick Leave 6.11
      • 1. Covered Employees 6.11A
      • 2. Permissible Uses of Sick Leave 6.11B
        • a. Use for Family Member 6.11C
        • b. Minimum Amount and Limit 6.11D
        • c. Notice to Employer 6.11E
      • 3. Accrual 6.11F
      • 4. Carryover of Unused Sick Leave 6.11G
      • 5. Reinstatement of Accrued and Unused Sick Leave 6.11H
      • 6. No Discrimination or Retaliation for Use of Sick Leave 6.11I
    • B. Posting and Recordkeeping Requirements 6.12
    • C. Enforcement and Penalties 6.13
    • D. No Preemption of Greater Requirements 6.13A
    • E. Exemption for Certain Existing Sick Leave Policies 6.14
    • F. Kin Care Leave 6.14A
  • III. PAID TIME OFF 6.15
  • IV. HOLIDAYS
    • A. Table: Legal Holidays 6.16
    • B. Floating Holidays 6.16A
    • C. Checklist: Guidelines for Drafting Holiday Pay Policy 6.17
    • D. Day of Rest 6.18
  • V. PREGNANCY DISABILITY LEAVE
    • A. Covered Employers 6.19
    • B. Eligible Employees 6.20
    • C. Length of Pregnancy Disability Leave 6.21
    • D. Intermittent or Reduced Work Schedule Leave 6.22
    • E. Employee and Employer Notices
      • 1. Employee Notice of Leave 6.23
      • 2. Required Employer Notices 6.24
    • F. Medical Certification
      • 1. When Required 6.25
      • 2. Medical Certification and HIPAA 6.26
    • G. Pay During Pregnancy Disability Leave 6.27
    • H. Benefits Available During Pregnancy Leave 6.28
    • I. Reinstatement to Same or Comparable Position 6.29
    • J. Relationship to Family and Medical Leave 6.30
  • VI. FAMILY AND MEDICAL LEAVE UNDER THE FAMILY AND MEDICAL LEAVE ACT (FMLA) AND CALIFORNIA FAMILY RIGHTS ACT (CFRA) 6.31
    • A. Basic Requirements 6.32
    • B. Reasons for Leave
      • 1. FMLA Leave 6.33
      • 2. California Variation: Pregnancy Exception 6.34
      • 3. California Variation: Domestic Partners 6.35
    • C. Employers Covered by FMLA and CFRA
      • 1. Private Employers 6.36
      • 2. Public Agencies 6.37
    • D. Eligibility Requirements for Employees
      • 1. In General 6.38
      • 2. Medical Need Requirement for Leave to Care for Relative 6.39
    • E. Definitions
      • 1. "Spouse" 6.40
      • 2. "Child" or "Son or Daughter" 6.41
      • 3. "Parent" 6.42
      • 4. "Serious Health Condition" 6.43
      • 5. "Needed to Care for" a Family Member 6.44
      • 6. "Health Care Provider" 6.45
      • 7. "Continuing Treatment" 6.46
      • 8. "Incapacity" 6.47
    • F. Length of Family and Medical Leave 6.48
      • 1. Calculating 12 Weeks of Leave 6.49
      • 2. 12-Month "Leave Year" 6.50
      • 3. Limits on Leave for Birth or Child Care 6.51
      • 4. Combined Leave for Spouses Under the FMLA 6.52
      • 5. California Variation: Combined Leave for Parents of Child 6.53
    • G. Intermittent and Reduced-Time Leave
      • 1. When Appropriate 6.54
      • 2. California Variation: Intermittent Leave for Child Care 6.55
    • H. Employer Designation as FMLA/CFRA Leave 6.56
      • 1. Basis for Employer's Designation 6.57
      • 2. When Employee Merely Requests Paid Time Off 6.58
      • 3. Preliminary Designation While Awaiting Confirming Information [Deleted] 6.59
      • 4. Timing and Form of Employer's Designation 6.60
      • 5. Retroactive Designation 6.61
        • a. Exception: Employer Learns FMLA Purpose for Leave After Leave Has Begun [Deleted] 6.62
        • b. Exception: Employer Learns FMLA or CFRA Purpose for Leave After Employee Returns [Deleted] 6.63
      • 6. Effect of Employer's Failure to Notify Employee of FMLA Leave Designation 6.64
    • I. Employee Responsibilities
      • 1. Notice of Need for Leave 6.65
        • a. Form of Notice 6.66
        • b. Form: Notice of Intent to Take Family or Medical Leave 6.67
        • c. Form: Notice of Eligibility and Rights and Responsibilities (DOL Form WH-381) 6.68
      • 2. Medical Certification 6.69
        • a. Contents of Medical Certifications 6.69A
        • b. Recertifications 6.69B
        • c. Second and Third Opinions 6.70
        • d. California Variation: Second or Third Opinion 6.71
        • e. Medical Certification Forms 6.72
          • (1) Form: Certification of Health Care Provider for Employee's Serious Health Condition (DOL Form WH-380-E) 6.73
          • (2) Form: Certification of Health Care Provider for Family Member's Serious Health Condition (DOL Form WH-380-F) 6.73A
          • (3) Form: Certification of Health Care Provider (FEHC) 6.74
      • 3. Fitness-for-Duty Report 6.75
    • J. Employee's Right to Reinstatement After Leave
      • 1. Right to Same Position 6.76
        • a. Notice of Guarantee of Reinstatement 6.77
        • b. Waiver of Rights; Light Duty Assignment 6.78
        • c. Inability to Perform Essential Function on Return From Leave 6.79
        • d. Layoff While on Leave 6.80
      • 2. Special Reinstatement Rules for Key Employees
        • a. "Key Employee" Defined 6.81
        • b. Potential Denial of Reinstatement and Benefit Maintenance 6.82
    • K. Relationship of FMLA and CFRA Leave to California Paid Family Leave 6.83
    • L. Pay During FMLA/CFRA Leave 6.84
      • 1. Substitution of Accrued Employer-Provided Paid Leave
        • a. Under the FMLA 6.85
        • b. Under the CFRA 6.86
      • 2. Limitation on Substitution of Accrued Employer-Provided Paid Leave 6.87
      • 3. Exempt Status and Deductions From Salary for Unpaid FMLA Leave 6.88
    • M. Effect of FMLA/CFRA Leave on Employee Status and Benefits
      • 1. Health Insurance
        • a. Employer Obligation to Maintain 6.89
        • b. Payment of Premiums 6.90
        • c. When Employee Chooses Not to Retain Health Insurance During Leave 6.91
        • d. When Employee Does Not Return to Work 6.92
        • e. When Employee Takes Combined Pregnancy Leave 6.93
      • 2. Benefit Levels, Vesting, and Seniority 6.94
      • 3. Other Benefits 6.95
    • N. Notice and Recordkeeping Requirements for Employers
      • 1. Notices
        • a. Leave Rights Notice 6.96
          • (1) Form Notice: Your Rights Under the Family and Medical Leave Act of 1993 (DOL WH Publication 1420) 6.97
          • (2) Form Notice: Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave 6.98
          • (3) Form Notice: Pregnancy Disability Leave 6.99
        • b. Specific Notices From Employer to Employee 6.100
          • (1) Mandatory Provisions in the Rights and Responsibilities Notice 6.101
          • (2) Optional Inclusions in Rights and Responsibilities Notice 6.102
      • 2. Personnel Manuals [Deleted] 6.103
      • 3. Recordkeeping Required of Employers Under the FMLA 6.104
    • O. Effect on Other Laws or Benefits 6.105
    • P. Prohibited Acts and Remedies 6.106
      • 1. Remedies Under the FMLA 6.107
      • 2. Individual Liability Under the FMLA 6.108
      • 3. Remedies Under the CFRA 6.109
  • VII. LEAVES REQUIRED BY OTHER STATE AND FEDERAL LAWS PROTECTING INDIVIDUALS WITH DISABILITIES
    • A. ADA and FEHA
      • 1. Comparison of Acts
        • a. Application of Acts 6.110
        • b. Definitions
          • (1) "Physical Disability" 6.111
          • (2) "Mental Disability" 6.112
          • (3) "Limits on Major Life Activities" 6.113
          • (4) "Reasonable Accommodation" 6.114
          • (5) "Undue Hardship" 6.115
      • 2. Effect on Employer Leave Policy 6.116
    • B. Rehabilitation Act 6.117
  • VIII. ACCOMMODATION OF RELIGIOUS BELIEFS 6.118
  • IX. ACCOMMODATION OF EMPLOYEES WHO VOLUNTARILY ENTER DRUG OR ALCOHOL REHABILITATION PROGRAMS 6.119
  • X. ACCOMMODATION OF EMPLOYEES WHO ENROLL IN ADULT LITERACY EDUCATION PROGRAMS 6.120
  • XI. ACCOMMODATION OF CIVIC RESPONSIBILITIES
    • A. Voting 6.121
    • B. Service as Election Official 6.122
    • C. Service as Juror or Witness 6.123
    • D. Leave for Emergency Duty as Volunteer Firefighter, Reserve Peace Officer, or Emergency Rescue Person 6.124
    • E. Training Leave for Volunteer Firefighter, Reserve Peace Officer, or Emergency Rescue Person 6.125
    • F. Leave for Military Service
      • 1. State Law 6.126
      • 2. Federal Law: USERRA
        • a. Application 6.127
        • b. Employee Obligations
          • (1) Notice of Leave 6.128
          • (2) Notice of Intention to Return to Work 6.129
          • (3) Documentation 6.129A
        • c. Employer Obligations
          • (1) Pay Issues 6.130
          • (2) Benefits 6.131
          • (3) Reinstatement of Employee 6.132
        • d. Discrimination and Termination Protections 6.133
        • e. Remedies 6.134
    • G. FMLA Leave to Care for a "Covered Servicemember" 6.134A
      • 1. Definition of "Covered Servicemember" 6.134B
      • 2. Definition of "Serious Injury or Illness" and "Outpatient Status" 6.134C
      • 3. Definition of "Son or Daughter" 6.134D
      • 4. Definition of "Next of Kin" 6.134E
      • 5. FMLA Leave Allowed to Care for a "Covered Servicemember" 6.134F
      • 6. Certification 6.134G
      • 7. Effect of Other FMLA Regulations 6.134H
    • H. FMLA Leave Due to a Qualifying Exigency 6.134I
      • 1. Definition of "Son or Daughter" 6.134J
      • 2. Definition of "Covered Active Duty" 6.134K
      • 3. Definition of "Contingency Operation" 6.134L
      • 4. Definition of "Qualifying Exigency" 6.134M
      • 5. Amount of FMLA Leave Allowed for Qualifying Exigencies 6.134N
      • 6. Certification 6.134O
      • 7. Effect of Other FMLA Regulations 6.134P
    • I. Leave for Spouses of Military Personnel 6.134Q
  • XII. SCHOOL LEAVES
    • A. Leave for School Suspension 6.135
    • B. Leave for Participation in School Activities 6.136
  • XIII. LEAVES FOR VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, OR STALKING 6.137
  • XIV. LEAVE FOR VICTIMS OF SERIOUS OR VIOLENT FELONIES AND THEIR RELATIVES 6.138
  • XV. LEAVE FOR ORGAN AND BONE MARROW DONATION 6.138A
  • XVI. FORMS
    • A. Form: Sample Policy for FMLA/CFRA Leave 6.139
    • B. Form: Sample Policy for Pregnancy Disability Leave 6.139A
    • C. Form: Sample Policy for Disability Leave [Deleted] 6.140
    • D. Form: Sample Policy for Personal Leave 6.141
    • E. Form: Sample Policy for Bereavement Leave 6.142
    • F. Form: Sample Policy for Leave for Spouses of Military Personnel 6.143
  • XVII. CHART: OVERVIEW OF LEAVE LAWS 6.144

7

Tax Compliance

Richard A. Saffir

  • I. OVERVIEW 7.1
    • A. Importance of Tax Compliance 7.2
    • B. Role of Attorney and Accountant 7.3
    • C. Notifying Taxing Authorities 7.4
      • 1. Notifying IRS 7.5
      • 2. Notifying California Employment Development Department 7.6
      • 3. Notifying California Franchise Tax Board 7.7
      • 4. Notifying California State Board of Equalization 7.8
      • 5. Notifying Local Taxing Authorities 7.9
    • D. Establishing Recordkeeping Procedures
      • 1. Organizing Information 7.10
      • 2. Collecting Employee/Payee Information 7.11
        • a. Employees 7.12
        • b. Other Payees 7.13
      • 3. Use of Computers and Electronic Storage Data 7.14
    • E. Withholding and Employment Taxes
      • 1. Who Withholds and Pays Employment Taxes
        • a. Federal 7.15
        • b. California 7.16
      • 2. Calculation of Withholding and Employment Taxes
        • a. Federal 7.17
        • b. California 7.18
          • (1) Personal Income Tax (PIT) Withholding 7.19
          • (2) State Disability Insurance (SDI) 7.20
          • (3) Unemployment Insurance (UI) 7.21
          • (4) Employment Training Tax (ETT) 7.22
        • c. Deposits of Federal Employment Taxes 7.23
          • (1) Monthly Deposits 7.24
          • (2) Semiweekly Deposits 7.25
          • (3) One-Day Rule 7.26
          • (4) Reporting Deposits 7.27
        • d. Deposits of California Employment Taxes 7.28
        • e. Penalties for Failure to Withhold, Deposit, or Pay Taxes 7.29
        • f. Work Opportunity Tax Credit 7.29A
      • 3. California Sales and Use Tax
        • a. Sales Tax Coverage and Exemptions
          • (1) Retailers Pay Sales Tax 7.30
          • (2) Tax Measured by Gross Receipts 7.31
          • (3) Tax on Tangible Personal Property 7.32
          • (4) Use Tax on Consumption or Storage of Property 7.33
          • (5) Tangible Personal Property Not Subject to Sales Tax 7.34
          • (6) Resale Exemption 7.35
          • (7) Occasional Sale Exemption 7.36
        • b. Sales Tax on Transfers of Property to Start-Up; Mergers 7.37
        • c. Sales and Use Tax Returns and Payment
          • (1) Due Dates of Returns and Payments 7.38
          • (2) State Board of Equalization Tax Returns 7.39
          • (3) Prepayment of Sales and Use Tax 7.40
        • d. Penalties 7.41
      • 4. Property Taxes
        • a. Property Tax Coverage and Exemptions 7.42
          • (1) Real Property 7.43
          • (2) Personal Property 7.44
        • b. Assessment of Tax 7.45
        • c. Filing Property Statements 7.46
        • d. Payment of Tax 7.47
        • e. Purchase and Change in Ownership 7.48
          • (1) Transfers of Property Between Legal Entities 7.49
          • (2) Transfers of Ownership Interests in Legal Entities 7.50
        • f. Protesting or Adjusting Assessed Values 7.51
      • 5. Documentary Transfer Tax
        • a. Assessment of Transfer Tax 7.52
        • b. Tax Rate 7.53
      • 6. Local Business Taxes 7.54
      • 7. Excise and Miscellaneous Taxes
        • a. What Businesses Pay Excise and Miscellaneous Taxes 7.55
        • b. Compliance With Excise Tax 7.56
    • F. Information Returns and Reporting Obligations
      • 1. Activities and Payments That Must Be Reported; Required Forms 7.57
        • a. Wages 7.58
        • b. Individual Retirement Information 7.59
        • c. Dividends 7.60
        • d. Interest 7.61
        • e. Service Fees, Commissions, Rentals, and Royalties 7.62
        • f. Retirement Plan Distributions 7.63
        • g. Real Estate Transactions 7.64
        • h. Brokers and Barter Exchanges 7.65
        • i. Restaurants, Tips 7.66
        • j. Cash Transactions 7.67
        • k. Other Transactions 7.68
      • 2. Failure to File Information Returns 7.69
  • II. TABLES AND LISTS
    • A. Taxes Imposed on Different Forms of Business Entities 7.70
    • B. Tax Forms Commonly Used by Business Entities 7.71
      • 1. Sole Proprietorship Income Tax Forms 7.72
      • 2. Corporation Income Tax Forms 7.73
      • 3. Partnership and LLC Income Reporting Forms 7.74
      • 4. Business Activities Reporting Forms 7.75
      • 5. Employment Tax Forms 7.76
      • 6. California Sales Tax Forms 7.77
      • 7. Excise Tax Forms 7.78
      • 8. Miscellaneous Tax Forms 7.79
    • C. IRS Tax Compliance Publications
      • 1. General Guides 7.80
      • 2. Guides for Specific Transactions or Businesses 7.81
  • III. COMBINED CALIFORNIA AND FEDERAL TAX CALENDAR
    • A. Overview
      • 1. Standard Filings for Calendar Year Taxpayers 7.82
      • 2. Filings and Payment Obligations Without Fixed Due Dates
        • a. Filings Triggered by an Event 7.83
        • b. Recurring Monthly or Semiweekly Employment Tax Deposit Obligations 7.84
        • c. Formation and Qualification Fees and Taxes 7.85
    • B. January 7.86
    • C. February 7.87
    • D. March 7.88
    • E. April 7.89
    • F. May 7.90
    • G. June 7.91
    • H. July 7.92
    • I. August 7.93
    • J. September 7.94
    • K. October 7.95
    • L. November 7.96
    • M. December 7.97
  • IV. AFFORDABLE CARE ACT COMPLIANCE
    • A. Overview 7.98
      • 1. Calculating "Large" Employer Status and "Full-Time" Employee Status 7.99
      • 2. Aggregation Rules and "Large" Employer Status 7.100
      • 3. "Affordability" and Three Safe Harbor Calculation Methods 7.101
    • B. Excise Tax Penalties 7.102
    • C. Information Reporting Provisions 7.103
    • D. Employer Tax Credits 7.104
    • E. California Health Insurance Marketplace 7.105
    • F. Market Reform and Essential Benefits 7.106
    • G. Wellness Programs 7.107
    • H. Implementation 7.108

8

Unemployment Compensation and State Disability Insurance

Terence R. Savage

Eric Hendrickson

  • I. FEDERAL-STATE SYSTEM 8.1
    • A. Governing Laws 8.2
    • B. Entitlement to Unemployment Compensation and Disability Insurance Benefits Generally 8.3
  • II. OBLIGATION TO PAY OR WITHHOLD TAXES 8.4
    • A. Employer-Employee Relationship Required 8.5
    • B. Location of Employment 8.6
      • 1. Services Localized in California 8.7
      • 2. Services Deemed Performed in California 8.8
    • C. Definition of "Employer" 8.9
    • D. Definition of "Employee" 8.10
    • E. Effect of Contract Language 8.11
    • F. Services Included or Excluded by Statute 8.12
      • 1. Excluded Services 8.13
        • a. Specific Exclusions 8.14
        • b. Directors of a Corporation 8.15
        • c. Domestic Services 8.16
          • (1) Wage Threshold for Unemployment Insurance Contribution 8.17
          • (2) Wage Threshold for Disability Insurance Contribution 8.18
        • d. Real Estate and Direct Salespersons 8.19
        • e. Consultants 8.20
      • 2. Exclusions Contingent on Similar Exclusions Under FUTA 8.21
      • 3. Excluded Services for Public Entities or Nonprofit Organizations 8.22
      • 4. Included Services 8.23
        • a. Public Entities 8.24
        • b. Leasing or Temporary Services Employers 8.25
        • c. Substitute and Assistant Workers Hired by Employee 8.26
        • d. Agricultural Employment 8.27
        • e. Exempt Religious, Charitable, and Other Organizations 8.28
        • f. Elective Employer Coverage 8.29
    • G. Both Exempt and Nonexempt Services 8.30
  • III. TAX WITHHOLDING AND PAYMENT
    • A. Returns and Reports 8.31
      • 1. Work Records 8.32
      • 2. Filing Returns and Reports 8.33
      • 3. New Employee Report Required for Certain "Transient" Occupations 8.34
      • 4. Notices Required by Employer 8.35
    • B. Employer Contributions to the Unemployment Fund
      • 1. Contributions Rate 8.36
      • 2. Wages as the Basis of Contribution
        • a. Included Remuneration 8.37
          • (1) General Inclusions 8.38
          • (2) Taxable Value of Board and Lodging 8.39
          • (3) Tips 8.40
          • (4) Deferred Compensation Plans 8.41
        • b. Excluded Remuneration
          • (1) Business Expenses 8.42
          • (2) Insurance 8.43
          • (3) Payments to or From a Trust 8.44
          • (4) Miscellaneous Exemptions 8.45
          • (5) Other Exclusions 8.46
        • c. Taxable Amount of Wages 8.47
      • 3. Reserve Accounts 8.48
        • a. Annual Statement of Account 8.49
        • b. Protest of Charges 8.50
      • 4. Quarterly Payments 8.51
      • 5. Reimbursable Financing 8.52
    • C. Assessments
      • 1. When Assessments May Be Made 8.53
      • 2. Penalties and Interest 8.54
      • 3. When Assessments Become Final 8.55
      • 4. Jeopardy Assessments 8.56
      • 5. Cancellation of Erroneous Assessments 8.57
      • 6. Statute of Limitations 8.58
    • D. Liens and Successor Liability
      • 1. Liens 8.59
      • 2. Successor Liability 8.60
      • 3. Liability of Corporate Officers 8.61
    • E. Refunds and Overpayments
      • 1. Claims for Credit or Refund of Overpayment 8.62
      • 2. Notice of Denial of Claim 8.63
      • 3. Reversal of Erroneous Denial 8.64
      • 4. Recovery of Erroneous Refund 8.65
    • F. Administrative Appellate Review
      • 1. Review by Administrative Law Judge 8.66
      • 2. Review of Jeopardy Assessments 8.67
      • 3. Review by Unemployment Insurance Appeals Board 8.68
    • G. Judicial Review 8.69
    • H. Use of Information Obtained 8.70
      • 1. Confidentiality 8.71
      • 2. Purposes for Which Information May Be Used 8.72
        • a. Exchange of Information With Other Governmental Agencies 8.73
        • b. Exchange of Information With Law Enforcement Agencies and Others 8.74
  • IV. CLAIMS FOR UNEMPLOYMENT COMPENSATION BENEFITS
    • A. "Unemployment" as Basis for Benefits 8.75
      • 1. Distinctions Between Total Unemployment and Partial Unemployment 8.76
      • 2. "Wages" for Purposes of Defining "Unemployed" 8.77
    • B. Maximum Benefits Payable 8.78
      • 1. "Benefit Year" Defined 8.79
      • 2. "Base Period" Defined 8.80
    • C. Conditions of Eligibility
      • 1. Availability for Work 8.81
      • 2. Search for Suitable Work 8.82
      • 3. Requirement of 1-Week Waiting Period 8.83
    • D. Factors Not Affecting Eligibility
      • 1. Physical or Mental Illness or Injury 8.84
      • 2. Court-Related Duties 8.85
      • 3. Emergency Hospitalization 8.86
      • 4. Student Status 8.87
      • 5. Death in Immediate Family 8.88
      • 6. Unexpired Leave Time on Discharge From Armed Services 8.89
    • E. Ineligible Persons
      • 1. Aliens 8.90
      • 2. Strikers 8.91
      • 3. Recipients of Temporary Total Disability Indemnity 8.92
      • 4. Persons Convicted of Making False Statements 8.93
    • F. Disqualification for Voluntarily Quitting or Discharge for Misconduct 8.94
      • 1. Presumption of Nondisqualifying Conduct 8.95
      • 2. Definition of "Most Recent Work" 8.96
      • 3. Voluntarily Leaving Work Without Good Cause
        • a. What Constitutes "Voluntary" Leaving 8.97
        • b. "Constructive" Quitting 8.98
        • c. "Good Cause" Defined 8.99
        • d. Employee's Duty to Preserve Employment Relationship 8.100
        • e. Situations Deemed "Good Cause" by Statute
          • (1) Compulsory Retirement 8.101
          • (2) Election to be Laid Off Under Collective Bargaining Agreement 8.102
          • (3) Deprivation of Equal Employment Opportunities 8.103
          • (4) Sexual Harassment 8.104
          • (5) Accompanying Spouse or Domestic Partner to Another Location 8.105
          • (6) Domestic Violence Abuse 8.106
        • f. Application of Good-Cause Principles to Factual Examples
          • (1) Religious or Ethical Reasons 8.107
          • (2) Concerns for Health, Safety, or Morals 8.108
          • (3) Dissatisfaction With Earnings 8.109
          • (4) Transportation Difficulties 8.110
          • (5) Attendance at School 8.111
          • (6) Domestic Circumstances 8.112
          • (7) Other Reasons 8.113
      • 4. Discharge for Misconduct; What Constitutes "Misconduct" 8.114
        • a. Requirement That Misconduct Be Connected With Most Recent Work 8.115
        • b. Situations Giving Rise to Issues of Misconduct 8.116
      • 5. Duration of Disqualification From Eligibility to Receive Benefits
        • a. Misconduct or Voluntary Quit 8.117
        • b. Refusal of Suitable Work 8.118
        • c. False Statements 8.119
        • d. Intoxication 8.120
    • G. Effect of Remuneration During Period of Unemployment on Amount of Benefits
      • 1. Reduction of Benefits by Amount of Retirement Pay 8.121
      • 2. Employer Payments to Supplement Unemployment Compensation; Severance or Dismissal Pay 8.122
      • 3. Vacation Pay 8.123
      • 4. Holiday Pay 8.124
      • 5. Sick Pay 8.125
    • H. Claims Procedure
      • 1. Types of Claims 8.126
        • a. New Claim 8.127
        • b. Continued Claim 8.128
        • c. Partial Claim 8.129
        • d. Additional Claim 8.130
        • e. Reopened Claim 8.131
      • 2. Steps in EDD's Processing of Claims 8.132
        • a. Filing of Claim and Notice to Last Employer 8.133
        • b. Computation of Benefits 8.134
          • (1) Notice of Computation 8.135
          • (2) Protest of Computation 8.136
        • c. Continued Claim Statement 8.137
        • d. Determination of Eligibility and Notice of Determination 8.138
        • e. Periodic Eligibility Review 8.139
        • f. Attachment of Unemployment Benefits for Child Support 8.139A
      • 3. Reconsideration of Determinations or Computations 8.140
    • I. Payment of Claims 8.141
    • J. Liability for Overpayment of Benefits 8.142
      • 1. Notice of Overpayment and Assessment Determination 8.143
      • 2. Appeal of Overpayment 8.144
      • 3. Recovery of Overpayments
        • a. Civil Action by the EDD 8.145
        • b. Summary Judgment 8.146
        • c. Offset 8.147
      • 4. Penalties 8.148
    • K. Invalidity of Waiver or Assignment of Benefits 8.149
  • V. ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW 8.150
    • A. Appeals to Administrative Law Judge 8.151
    • B. Appeals to Appeals Board
      • 1. Appeals Procedure 8.152
      • 2. Payment of Benefits During Appeals Procedure 8.153
        • a. Before Administrative Law Judge Decision 8.154
        • b. After Administrative Law Judge Decision 8.155
    • C. Judicial Review of Appeals Board Decisions 8.156
      • 1. Review of Benefit Determination by Administrative Mandate Proceedings 8.157
      • 2. Scope of Judicial Review 8.158
  • VI. CLAIMS FOR DISABILITY INSURANCE BENEFITS
    • A. Governing Law 8.159
      • 1. Statutes and Regulations 8.160
      • 2. Case Law 8.161
    • B. Nature and Source of Disability Benefits 8.162
      • 1. State Disability Plan 8.163
      • 2. Voluntary Plans 8.164
      • 3. Elective Coverage 8.165
    • C. What Constitutes a Disability 8.166
    • D. Eligibility for Benefits 8.167
      • 1. Departmental Medical Examination 8.168
      • 2. Other Conditions of Eligibility 8.169
      • 3. Physician and Practitioner Defined 8.170
    • E. Ineligibility for Benefits
      • 1. Employee Covered by Approved Voluntary Plan 8.171
      • 2. Entitlement to Unemployment Compensation Benefits 8.172
      • 3. Entitlement to Workers' Compensation Benefits 8.173
        • a. When Rate Is Less Than Disability Insurance Rate 8.174
        • b. Payment of Disability Insurance Benefits While Workers' Compensation Claim Is Pending 8.175
    • F. Disqualifications
      • 1. Alcoholism or Drug Addiction 8.176
      • 2. Incarceration 8.177
      • 3. Disqualification Under Certain Unemployment Compensation Provisions 8.178
    • G. Amount of Benefits
      • 1. Weekly Benefit Amount 8.179
      • 2. Base Period 8.180
      • 3. Maximum Benefits During One Disability Period 8.181
      • 4. Reduction of Benefit Amount by Wages Received 8.182
      • 5. Waiting Period 8.183
      • 6. Disability Insurance Weekly Benefits 8.184
    • H. Claim Procedures
      • 1. Filing and Notice of Claim 8.185
      • 2. Late Filing 8.186
      • 3. Determination and Notice of Determination 8.187
      • 4. Computation and Notice of Benefit Amount 8.188
      • 5. Protest of Computation 8.189
      • 6. Reconsideration 8.190
      • 7. Continued Claims 8.191
      • 8. Overpayments and Penalties 8.192
    • I. Administrative Review 8.193
    • J. Judicial Review 8.194
  • VII. FAMILY TEMPORARY DISABILITY INSURANCE 8.195

9

Notice-Posting, Training, and Recordkeeping Requirements

Margaret Hart Edwards

Michael G. Pedhirney

  • I. INTRODUCTION 9.1
  • II. POSTING REQUIREMENTS 9.2
    • A. Postings Related to Wages, Hours, and Working Conditions
      • 1. Federal Law
        • a. Fair Labor Standards Act 9.3
        • b. Davis-Bacon Act 9.4
        • c. Walsh-Healey Public Contracts Act 9.5
        • d. Service Contract Act 9.6
        • e. Migrant and Seasonal Agricultural Worker Protection Act 9.7
        • f. Shipping Act 9.8
        • g. American Recovery and Reinvestment Act of 2009 9.8A
        • h. National Labor Relations Act 9.8B
      • 2. California Law
        • a. Payday Notice 9.9
        • b. Security for Payroll: Certain Occupations 9.10
        • c. Labor Disturbances 9.11
        • d. Wage Orders 9.12
        • e. California MW-2014 Minimum Wage Poster 9.13
        • f. California Sick Leave 9.14
    • B. LHWCA and Workers' Compensation Postings
      • 1. Federal Longshore and Harbor Workers' Compensation Act 9.15
      • 2. California Workers' Compensation Act 9.16
    • C. Occupational Safety and Health Postings 9.17
      • 1. General Posting Requirements Under Cal/OSHA
        • a. Overall Safety and Health Obligations in the Workplace 9.18
        • b. Hazardous Substances 9.19
        • c. Posting of Citations 9.20
        • d. Posting After Investigation of Accident 9.21
        • e. Notice of Exposure 9.22
        • f. Annual Summary 9.23
        • g. Notice of Unsafe Condition 9.24
        • h. Notice of Access to Medical and Exposure Records 9.25
        • i. Permits 9.26
        • j. Injury and Illness Prevention Program Code of Safe Practices 9.27
        • k. Emergency Action Plan and Telephone Numbers 9.28
        • l. Fire Protection Plan 9.29
        • m. Smoking Prohibition 9.30
      • 2. Chart: Specific Posting Requirements for Certain Industries or Activities 9.31
    • D. Antidiscrimination Law Postings
      • 1. Federal Law
        • a. Civil Rights Act of 1964, Title VII 9.32
        • b. Age Discrimination in Employment Act 9.33
        • c. Americans With Disabilities Act 9.34
      • 2. California Fair Employment and Housing Act 9.35
    • E. Affirmative Action Notice Postings
      • 1. Under Executive Order No. 11246 9.36
      • 2. For Vietnam Era Veterans 9.37
      • 3. For Individuals With Disabilities 9.38
    • F. Leave-of-Absence Postings
      • 1. Family and Medical Leave Act 9.39
      • 2. California Family Rights Act 9.40
      • 3. Pregnancy Leave 9.41
      • 4. Family Temporary Disability Leave 9.42
      • 5. State Disability Insurance and Unemployment 9.43
      • 6. Military Leave 9.44
    • G. Miscellaneous Postings
      • 1. Federal Law
        • a. Posting of ERISA Plan "Notice to Interested Parties" Required by IRS 9.45
        • b. Employee Polygraph Protection Act 9.46
        • c. Drug-Free Workplace Act 9.47
        • d. Union Elections 9.48
        • e. Intention to Use Foreign Nationals 9.49
      • 2. State Law
        • a. Time Off to Vote 9.50
        • b. California Drug-Free Workplace Act of 1990 9.51
        • c. Organizing Agricultural Workers 9.52
        • d. Whistleblower Hotline 9.53
        • e. Sex Trafficking 9.53A
      • 3. Local Ordinances 9.54
  • III. TRAINING REQUIREMENTS 9.55
    • A. Ethics Training Under Sarbanes-Oxley and Foreign Corrupt Practices Act 9.56
    • B. Drug-Free Workplace Act Training
      • 1. Federal Drug-Free Workplace Act 9.57
      • 2. California Drug-Free Workplace Act 9.58
    • C. Safety Training
      • 1. Federal OSHA 9.59
      • 2. California OSHA 9.60
    • D. Discrimination Prevention Training
      • 1. California Sexual Harassment Prevention Training 9.61
      • 2. Protections for Janitorial Service Workers 9.61A
      • 3. Discrimination Prevention Training Generally 9.62
      • 4. As Part of Affirmative Defense to Federal Claims 9.63
      • 5. As Part of Affirmative Defense to California Law Discrimination Claims 9.64
      • 6. As Defense Against Punitive Damages Under Federal Law 9.65
      • 7. Affirmative Action Training Requirements 9.65A
    • E. Health Insurance Portability and Accountability Act 9.66
  • IV. RECORDKEEPING REQUIREMENTS 9.67
    • A. Records Relating to Wages, Hours, and Working Conditions
      • 1. Federal Law
        • a. Fair Labor Standards Act 9.68
        • b. Labor-Management Reporting and Disclosure Act 9.69
      • 2. California Law
        • a. Employee Wage Records 9.70
        • b. Public Works Contractors 9.71
        • c. Industrial Homeworkers 9.72
        • d. Garment Manufacturing 9.73
        • e. Car Wash and Polishing 9.73A
        • f. Janitorial Service Workers 9.73B
        • g. Records for Unemployment Insurance Purposes 9.74
        • h. Gratuities 9.75
        • i. Employment of Minors 9.76
        • j. Wage Orders 9.77
        • k. Deductions From Cash Payment of Wages 9.78
    • B. Occupational Safety and Health Records
      • 1. Federal OSHA Form 300 9.79
      • 2. California Occupational Safety and Health Act 9.80
        • a. Monitoring Exposure to Hazardous Materials 9.81
        • b. Training Records 9.82
        • c. Records of Illnesses and Injuries 9.83
        • d. Records of Workers' Compensation Claims
          • (1) Claim File 9.84
          • (2) Claim Log 9.85
    • C. Records Relating to Antidiscrimination Laws
      • 1. Federal Law
        • a. Records of Title VII Actions 9.86
        • b. Records Required by ADEA 9.87
        • c. Records Required by ADA 9.88
        • d. Records Required by GINA 9.88A
      • 2. California Law
        • a. Records Required by FEHA 9.89
        • b. Records for Monitoring Wage Discrimination on Basis of Gender, Race, or Ethnicity 9.90
    • D. Affirmative Action Records Required of Government Contractors
      • 1. Records Relating to Required Affirmative Action Programs 9.91
      • 2. Records Relating to Veterans and Individuals With Disabilities 9.92
    • E. Records Relating to Family and Medical Leave
      • 1. FMLA Requirements 9.93
      • 2. CFRA Requirements 9.94
    • F. Tax Records
      • 1. Federal Law
        • a. Records Relating to Taxable Income 9.95
        • b. Income Tax Withholding Records 9.96
        • c. Federal Unemployment Tax Records 9.97
        • d. FICA Contributions Records 9.98
      • 2. California Income Tax Records 9.99
    • G. Miscellaneous Recordkeeping Requirements
      • 1. Federal Law
        • a. Records Related to Immigration Law 9.100
        • b. Polygraph Test Records 9.101
        • c. Supply Contractor Records (Walsh-Healey Act) 9.102
        • d. Service Contractor Records (Service Contract Act) 9.103
        • e. Contractor Records (Davis-Bacon Act) 9.104
        • f. Records on Migrant and Seasonal Agricultural Workers 9.105
        • g. Shipping Records 9.106
        • h. Records Relating to ERISA Benefits 9.107
        • i. Bioterrorism Preparedness Act 9.108
        • j. Fair and Accurate Credit Transactions Act of 2003 9.109
        • k. HIPAA Records 9.110
      • 2. California Law
        • a. California Public Work Contracts 9.111
        • b. Specialized Employers 9.112
    • H. Additional Recordkeeping Recommendations
      • 1. Chart: Retention of Personnel Records 9.113
      • 2. Records Not to Be Kept in Personnel File 9.114
      • 3. Spoliation of Evidence 9.115
    • I. Chart: Summary of Posting Requirements 9.116
    • J. Chart: Summary of Recordkeeping and Retention Requirements 9.117

10

Employee Handbooks

Denise N. Brucker

Lisa A. Frank

William B. Sailer

  • I. INTRODUCTION
    • A. Scope of Chapter 10.1
    • B. Employee Handbooks Distinguished From Personnel Policy Manuals 10.2
    • C. Advantages and Disadvantages 10.3
  • II. LEGAL EFFECT OF EMPLOYEE HANDBOOKS
    • A. Effect of Employer's Policies on Employment Contract 10.4
    • B. At-Will Disclaimers and Employee Handbooks 10.5
      • 1. Contractual Effect of Handbook Receipt 10.6
        • a. Agreement to At-Will Employment 10.7
        • b. Disclaimer of Other Agreements 10.8
      • 2. Form: Employee Handbook Receipt Acknowledgment 10.9
  • III. POLICIES TO INCLUDE IN THE EMPLOYEE HANDBOOK
    • A. Assessing Current Policies for Inclusion in Handbook 10.10
    • B. Checklist: Potential Inclusions 10.11
    • C. Introductory Comments 10.12
    • D. Equal Employment Opportunity
      • 1. Compliance With Statutory Prohibitions 10.13
      • 2. Form: Equal Opportunity Employment Policy 10.14
    • E. Employment At Will
      • 1. Reaffirmation of Policy 10.15
      • 2. Form: At-Will Employment Policy 10.16
    • F. Introductory Period
      • 1. May Create Implied-in-Fact Contract of Employment 10.17
      • 2. Form: Introductory Period Policy 10.18
    • G. Policy Against Discrimination, Harassment and Retaliation
      • 1. Governing Law 10.19
      • 2. Guidelines for Drafting a Policy Against Discrimination, Harassment, and Retaliation 10.20
    • H. Dispute Resolution Policy
      • 1. Advisability of Inclusion; Caveats 10.21
      • 2. Guidelines for Drafting Dispute Resolution Policy 10.22
    • I. Confidential Information 10.23
    • J. Inspection of Work Stations, Personal Belongings, or Electronic Data 10.24
    • K. Pay Policies and Practices
      • 1. Employee Classifications 10.25
      • 2. Work Hours, Payroll, and Other Issues 10.26
    • L. Employee Benefits 10.27
    • M. Leave Policies 10.28
    • N. Employment of Relatives 10.29
    • O. Regulation of Outside Employment 10.30
    • P. Standards of Performance and Conduct
      • 1. Topics to be Covered in Handbook
        • a. Punctuality and Attendance 10.31
        • b. Solicitation Rules 10.32
        • c. Dress and Grooming Standards 10.33
        • d. Customer Relations 10.34
        • e. Use of Drugs and Alcohol 10.35
        • f. Performance Reviews and Evaluations 10.36
      • 2. General Considerations Regarding Standards of Performance, Discipline, and Termination 10.37
        • a. Specific Drafting Guidelines 10.38
        • b. Form: Performance Standards; Misconduct, Discipline, and Termination 10.39
    • Q. References 10.40
    • R. Policies Relating to Workplace Safety and Health
      • 1. Workplace Safety Program
        • a. Required Elements 10.41
        • b. Guidelines for Drafting Workplace Safety Policy 10.42
      • 2. Workplace Violence
        • a. OSHA Guidelines 10.43
        • b. Drafting Workplace Violence Policy 10.44
      • 3. Smoking in the Workplace 10.45
      • 4. Cell Phone and Wireless Devices Policy 10.46

11

Trade Secrets Protection and Unfair Competition

Sean A. O'Brien

  • I. IMPORTANCE OF PROTECTING TRADE SECRETS AND PREVENTING UNLAWFUL COMPETITIVE BUSINESS PRACTICES 11.1
  • II. FEDERAL DEFEND TRADE SECRETS ACT OF 2016; IMPACT ON EXISTING STATE TRADE SECRETS LAW 11.1A
  • III. THE UNIFORM TRADE SECRETS ACT 11.2
    • A. Defining Trade Secret Under UTSA 11.3
      • 1. Information That Has Economic Value Because Not Generally Known
        • a. In General 11.4
        • b. Customer List/Information Cases 11.5
        • c. Professional or New Job Announcement Exception 11.5A
        • d. Special Rules for Financial Advisors and Brokers Subject to FINRA: The "Protocol for Broker Recruiting" 11.5B
      • 2. Reasonable Efforts to Maintain Secrecy 11.6
      • 3. TROs and Preliminary Injunctions—A Word of Caution [Deleted] 11.6A
    • B. Defining Misappropriation Under UTSA; How Misappropriation Can Occur and Who Can Be Liable 11.7
      • 1. Requirement That the Misappropriating Party Actually "Use" the Trade Secret 11.7A
      • 2. Reverse Engineering Not Misappropriation 11.8
      • 3. Avoiding Misappropriation When Hiring Competitor's Employees 11.9
      • 4. Inevitable Disclosure Doctrine 11.10
      • 5. Obtaining Personal Jurisdiction Over Out-of-State Defendants [Deleted] 11.11
    • C. Loss of Trade Secret Protection Through Public Disclosure 11.12
      • 1. Through Publication on the Internet or in Trade Journals 11.13
      • 2. Through Patent Applications 11.14
      • 3. Under Copyright Laws 11.15
      • 4. Disclosure to Governmental Agencies Under Disclosure Laws 11.16
      • 5. Disclosure Through Licensing Agreements 11.16A
      • 6. Inadvertent Disclosure in Litigation or to Third Parties 11.17
      • 7. Form: Protective Language for Submissions 11.18
    • D. Security Measures to Protect Trade Secrets 11.19
      • 1. When Hiring or Contracting With Another
        • a. Areas of Concern 11.20
        • b. Use of Indemnity Agreements 11.20A
        • c. Conflicts of Interest 11.20B
        • d. Form: Sample Offer or Hire Letter to New Employee 11.21
        • e. Safeguard Measures 11.22
      • 2. During Period of Employment or Contractual Relationship 11.23
        • a. Use of Confidentiality, Nondisclosure, and Antisolicitation Agreements 11.24
        • b. Identification of Trade Secret Information 11.25
        • c. Implementation of Plant and Workplace Security Procedures 11.26
        • d. Use of Confidential Stamps and Legends 11.27
        • e. Use of Confidentiality or Secrecy Agreements With Customers, Clients, and Third Parties 11.28
        • f. Information Inadvertently Disclosed to Others 11.29
        • g. Protecting Digital or Electronically Stored Information; Computer Database Security Measures 11.30
        • h. Importance of Implementing "BYOD" Policies 11.30A
        • i. Other Technological Issues 11.31
        • j. Forms for Ensuring Confidentiality and Nondisclosure
          • (1) Form: Visitor Log-In 11.32
          • (2) Form: Receipt Acknowledgment 11.33
          • (3) Form: Confidentiality Legend 11.34
          • (4) Form: Sample Approval of Information Release 11.35
          • (5) Form: Notice for Facsimile Transmission 11.36
      • 3. When Terminating Employment or Contractual Relationship 11.37
        • a. Exit Interview: Reaffirmation of Confidentiality Obligations Through "Termination Certificate" 11.38
        • b. Form: Employee Termination Certificate 11.38A
        • c. Letter to Exiting Employee's New Employer and to Existing Customers 11.39
        • d. Form: Letter to Employee Confirming Exit Interview 11.40
        • e. Form: Letter to New Employer 11.41
      • 4. Investigation of Employees and Privacy Concerns 11.41A
        • a. Eavesdropping, Recording Telephone Conversations, Video Surveillance, and Use of GPS Tracking Devices 11.41B
        • b. Monitoring and Retrieving Computer Data or Accessing Employee's Private Social Media or Email Accounts 11.41C
        • c. Discovery From Third Parties Into Social Media Sites and Private Internet or "Cloud" Accounts 11.41D
        • d. Searching Property, Offices, and Trash 11.41E
        • e. Interrogating Persons; Physical Searches 11.41F
        • f. Pretexting: Obtaining Personal Information Through False Pretenses 11.41G
        • g. Use of Private Investigators 11.41H
        • h. Form: Company Policy for Use of Company Computers, Internet, E-Mail, and Personal or Cloud-Based Electronic Storage Devices 11.41I
    • E. Remedies Available to Plaintiff Whose Trade Secrets Have Been Misappropriated 11.42
    • F. Recovery of Attorney Fees in Trade Secret Litigation 11.42A
    • G. TROs and Preliminary Injunctions: A Word of Caution 11.42B
    • H. Asserting Claims for Trade Secret Misappropriation in Litigation: The Compulsory Counterclaim Trap for the Unwary 11.42C
    • I. Obtaining Personal Jurisdiction Over Out-of-State Defendants in Trade Secret/Unfair Competition Litigation 11.42D
    • J. Use and Enforceability of Employment-Related Arbitration Contracts in Trade Secret Litigation 11.42E
    • K. Protecting Against Unwanted Disclosure During Litigation
      • 1. Disclosure of Trade Secrets at Outset of Case
        • a. Trade Secret Must Be Identified With Reasonable Particularity 11.43
        • b. Requisite Degree of Specificity 11.43A
      • 2. Protective Orders 11.44
      • 3. Sealing of Court Records 11.44A
      • 4. Trade Secret Privilege 11.45
      • 5. Preservation of Trade Secrets and Evidence 11.46
      • 6. Managing the Burden and Expense of Electronic Discovery 11.46A
      • 7. Protocols for Conducting Forensic Discovery of Electronic/Digital Stored Information 11.46B
    • L. Insurance Coverage for Defense of Trade Secret Misappropriation and Unfair Competition Claims 11.47
    • M. Employer's Duty to Defend and Indemnify the Newly Hired Employee 11.47A
  • IV. EMPLOYEE INVENTIONS
    • A. Overview of Trade Secret and Invention Ownership Law 11.48
    • B. Contractual Assignments of Employee Inventions 11.49
    • C. Enforcement of Ownership Rights 11.50
  • V. CONTRACTUAL RESTRAINTS ON COMPETITION AND THEIR ENFORCEABILITY 11.51
    • A. Covenants Not to Compete 11.52
    • B. Attempts to Circumvent California's Strong Public Policy Against Covenants Not to Compete
      • 1. "Sham" Employee Stock Sale or Repurchase Transactions 11.53
      • 2. Postemployment "Forfeiture" of Benefits 11.54
      • 3. Use of Choice of Law, Forum Selection, or Contractual Arbitration Clauses 11.54A
        • a. Choice of Law 11.55
        • b. Forum Selection Clauses and Their Enforceability 11.55A
        • c. Contractual Arbitration 11.55B
      • 4. Use of Narrowly Drawn Noncompete Provisions 11.56
    • C. Antisolicitation Agreements
      • 1. Employee Solicitation and No-Hire/No-Poaching Agreements 11.57
      • 2. Customer Solicitation 11.58
    • D. Confidentiality Agreements and Covenants Not to Disclose 11.59
    • E. Remedies for Breach of Contractual Restraints 11.60
  • VI. STATUTORY UNFAIR COMPETITION CLAIMS AND BUSINESS-RELATED TORTS 11.61
    • A. Preemption by UTSA 11.61A
    • B. Statutory Unfair Competition (Bus & P C §§17200–17210) 11.62
    • C. Criminal Sanctions for Theft of Trade Secrets 11.63
    • D. Common Law Misappropriation 11.64
    • E. Breach of Confidence 11.65
    • F. Inducing Breach of Contract; Interference With Prospective Business and Economic Advantage 11.65A
      • 1. Tortious Interference With Contractual Relations 11.66
      • 2. Tortious Interference With Prospective Economic or Business Relations 11.67
    • G. Breach of Fiduciary Duty and Duty of Loyalty 11.68
      • 1. Competing With Company 11.69
      • 2. Corporate Opportunity Doctrine 11.70
      • 3. Constructive Fraud Based on Fiduciary Relationship 11.71
    • H. Trade Libel 11.72
    • I. Conversion of Personal Property 11.73
    • J. Civil Remedies for Theft, Destruction, or Misuse of Computer Data 11.74
    • K. Civil Conspiracy and Aiding and Abetting Liability 11.74A
  • VII. EMPLOYEE AGREEMENT: PROPRIETARY INFORMATION AND ASSIGNMENT OF INVENTIONS
    • A. General Comment 11.75
    • B. Form: Short Agreement for Protection of Proprietary Information 11.76
    • C. Form: Long Agreement for Protection of Proprietary Information and Assignment of Inventions
      • 1. Form: Introductory Provisions 11.77
      • 2. Form: Definitions 11.78
      • 3. Form: Duty of Trust and Confidentiality 11.79
      • 4. Form: No Disclosure or Misappropriation of Proprietary Information 11.80
      • 5. Provisions Regarding Invention Assignment
        • a. Form: Assignment of Proprietary Information and Inventions 11.81
        • b. Form: Proprietary Right Registrations; Execution of Necessary Documents 11.82
        • c. Form: Exception to Assignment of Inventions 11.83
        • d. Form: Disclosure of Inventions and Maintenance of Records 11.84
      • 6. Form: Provisions Regarding Noncompetition and Nonsolicitation
        • a. Form: Conflicting Employment or Business Opportunities 11.85
        • b. Form: Nonsolicitation of Employees 11.86
        • c. Form: Nonsolicitation of Customers 11.87
        • d. Form: Noncompetition 11.88
      • 7. Provisions Regarding Obligations on Termination of Employment
        • a. Form: Returning Company Documents and Other Tangible Items 11.89
        • b. Form: Reaffirmation of Obligations on Termination of Employment 11.90
        • c. Form: Notification to New Employer 11.91
      • 8. Miscellaneous Provisions
        • a. Form: Representations and Warranties 11.92
        • b. Form: At-Will Employment 11.93
        • c. Form: Equitable Remedies 11.94
        • d. Form: Choice of Law 11.95
        • e. Form: Enforceability and Severability 11.96
        • f. Form: No Waiver 11.97
        • g. Form: Attorney Fees 11.98
        • h. Form: Amendment and Modification 11.99
        • i. Form: Entire Agreement 11.100
        • j. Form: Successors and Assigns 11.101
        • k. Form: Word Usage 11.102
        • l. Form: Exhibits 11.103
        • m. Form: Effective Date 11.104
      • 9. Form: Conclusion 11.105
      • 10. Form: Execution 11.106
      • 11. Form: Exhibit A—California Labor Code §2870 11.107
      • 12. Form: Exhibit B—Existing Inventions and Improvements 11.108
      • 13. Form: Exhibit C—Termination Certificate 11.109

12

Workplace Safety

Fred Walter

Lisa Prince

  • I. SCOPE OF CHAPTER 12.1
  • II. NEW AND NOTEWORTHY 12.1A
  • III. FEDERAL OVERVIEW
    • A. Applicable Law: The Occupational Safety and Health Act of 1970
      • 1. General Mandate to Employers; Historical Context 12.2
      • 2. Jurisdiction 12.3
      • 3. Federal Preemption; Cal/OSHA 12.4
    • B. Navigating the Federal OSHA 12.5
      • 1. Rulemaking 12.6
      • 2. Enforcement 12.7
      • 3. Adjudication and Administrative Appeals 12.8
        • a. Appeals of Administrative Hearing Officer's Decisions 12.9
        • b. Appeals of Commission Decisions 12.10
  • IV. NAVIGATING CAL/OSHA
    • A. Applicable Law: California Occupational Safety and Health Act of 1973
      • 1. General Mandate to Employers 12.11
      • 2. Scope of Act 12.12
      • 3. Regulatory and Administrative Scheme 12.13
    • B. Occupational Safety and Health Standards Board
      • 1. Authority and Composition 12.14
      • 2. Adoption of Standards 12.15
      • 3. Employer-Requested Variances
        • a. Permanent Variance 12.16
          • (1) Applying for Interim Variance [Deleted] 12.17
          • (2) Before Hearing 12.18
            • (a) Disqualification of Hearing Officer 12.19
            • (b) Prehearing Motions, Discovery, and Evidence 12.20
          • (3) Hearing Procedure 12.21
            • (a) Party Representation 12.22
            • (b) Admission of Evidence During Hearing 12.23
            • (c) Continuances and Defaults 12.24
          • (4) Posthearing Procedure 12.25
        • b. Requesting Temporary Variances 12.26
          • (1) Hearings 12.27
          • (2) Appeals of Temporary Variances 12.28
    • C. The Division of Occupational Safety and Health 12.29
      • 1. Investigations Following Workplace Injury, Illness, or Death
        • a. Notification of Serious Injury or Illness or Death 12.30
        • b. Complaints About the Workplace 12.31
          • (1) Formal Complaints 12.31A
          • (2) Informal Complaints 12.31B
          • (3) Discrimination 12.31C
      • 2. Bureau of Investigations 12.32
      • 3. Workplace Inspections
        • a. Basis for Inspections 12.33
        • b. Inspection Process 12.34
        • c. Pros and Cons of Insisting on a Warrant 12.35
      • 4. Citations
        • a. Issuance of Serious Citation (1BY Letter) 12.35A
        • b. Grounds for Issuance 12.36
        • c. Multiemployer Worksite Liability 12.37
          • (1) Exposing Employer Defense 12.37A
          • (2) Controlling Employer "Due Dilligence" Defense 12.37B
        • d. Types and Degrees of Violations: Regulatory Definitions
          • (1) Willful Violation 12.38
          • (2) Repeat Violation 12.39
          • (3) Serious Violation 12.40
          • (4) General Violation 12.41
          • (5) Regulatory Violation 12.42
        • e. Notice in Lieu of Citation 12.43
        • f. Information Memorandum 12.44
        • g. Orders and Special Orders
          • (1) Temporary Restraining Orders 12.45
          • (2) Order Prohibiting Use 12.46
            • (a) Notice Procedure 12.47
            • (b) Contesting Order 12.48
          • (3) Special Orders 12.49
      • 5. Order to Take Special Action 12.50
      • 6. Posting Requirements 12.51
      • 7. Civil Penalties
        • a. Service of Notice of Proposed Penalty 12.52
        • b. Amounts of Civil Penalties 12.53
          • (1) Basis for Assessing Penalty Amounts 12.54
          • (2) Penalty Adjustment: Abatement Credit and Waiver 12.55
          • (3) Chart: Violations Subject to Fixed Penalties or Mandatory Minimums 12.56
        • c. Abatement 12.57
        • d. Failure to Pay Civil Penalties 12.58
      • 8. Criminal Penalties 12.59
        • a. Summary: Criminal Liability Under Cal/OSHA 12.60
        • b. Corporate Criminal Liability Act 12.61
  • V. APPEALING CAL/OSHA CITATIONS
    • A. Filing an Appeal
      • 1. California Occupational Safety and Health Appeals Board 12.62
      • 2. Initiating Appeal 12.62A
    • B. Appealable Issues and Posting Requirements 12.63
    • C. Expedited Hearing Process 12.63A
    • D. Prehearing Procedure 12.64
    • E. Settlement 12.65
    • F. Mandatory Settlement Conference [Deleted] 12.65A
    • G. Discovery 12.66
    • H. The Hearing 12.67
      • 1. Representation, Evidence, Oral and Written Argument 12.68
      • 2. Failure to Appear 12.69
      • 3. Division's Burden 12.70
    • I. Defenses to Citations 12.71
      • 1. Independent Employee Act 12.72
      • 2. Unforeseeable Isolated Employee Act 12.73
      • 3. Void for Vagueness 12.74
      • 4. Exposing Employer Defense 12.75
      • 5. Logical Time Not Yet Reached 12.75A
    • J. Findings and Order 12.75B
    • K. Petition for Reconsideration 12.76
      • 1. Grounds for Reconsideration 12.77
      • 2. Pleadings, Service Requirements, Answer 12.78
      • 3. Disposition of Petition 12.79
    • L. Appealing an OSHAB Decision
      • 1. Prerequisite of Exhaustion of Administrative Remedies 12.80
      • 2. Application for Writ of Mandate 12.81
      • 3. Review by Superior Court 12.82
    • M. Costs 12.83
  • VI. INJURY AND ILLNESS PREVENTION PROGRAMS
    • A. Overview 12.84
    • B. Requirements
      • 1. Generally 12.85
      • 2. Recordkeeping Requirements 12.86
      • 3. Employers With Fewer Than 20 Employees 12.87
      • 4. Communicating With Employees 12.88
      • 5. Joint Labor-Management Safety and Health Committees 12.89
      • 6. Procedures for Enforcement of IIPP 12.90
      • 7. Chart: Summary of Employer Duties Under the IIPP and Other Laws 12.91
      • 8. Trade Secret Preservation When Employee Requests Medical Records 12.92
      • 9. IIPP Compliance Checklist 12.93
  • VII. HAZARDOUS SUBSTANCES INFORMATION AND TRAINING ACT
    • A. Navigating the Act 12.94
      • 1. Who Is Covered 12.95
      • 2. When It Applies 12.96
      • 3. Exemptions From the Act 12.97
    • B. Safety Data Sheets (SDS) 12.98
      • 1. Information Required 12.99
      • 2. Exceptions to Providing SDS 12.100
      • 3. California Hazard Communication Standard (8 Cal Code Regs §5194) 12.101
        • a. Hazard Communication Program 12.102
        • b. Duty to Collect SDSs for Hazardous Substances 12.103
        • c. Notice to Employees 12.104
        • d. Form: Notice to Employees of Right to SDSs 12.105
        • e. Employee Training 12.106
        • f. Employer Labeling 12.107
  • VIII. CAL/OSHA FORM 300 LOG AND ANNUAL SUMMARY
    • A. Log of Occupational Injuries and Illnesses 12.108
      • 1. Recordable Illnesses and Injuries 12.109
      • 2. Contents of Cal/OSHA Form 300 12.110
      • 3. Completing the Injury and Illness Incident Report (Cal/OSHA Form 301) 12.111
    • B. Annual Summary: Cal/OSHA Form 300A 12.112
    • C. Reporting Occupational Injury and Illness 12.113
  • IX. SUMMARY OF EMPLOYEE SAFETY AND HEALTH RIGHTS 12.114
  • X. OTHER WORKPLACE HEALTH AND SAFETY ISSUES
    • A. Smoking in the Workplace 12.115
      • 1. Employer Duties 12.116
      • 2. Places of Employment 12.116A
      • 3. Places of Employment Not Covered 12.117
      • 4. Applicable Penalties 12.118
    • B. Prevention of Workplace Violence
      • 1. Workplace Violence Prevention in Healthcare 12.118A
      • 2. Other Theories of Liability 12.119
      • 3. Workplace Violence Safety Act 12.120
      • 4. Preventive Measures 12.121
    • C. Workplace Ergonomic Requirements
      • 1. Application 12.122
      • 2. Required Program 12.123
  • XI. USE OF CAL/OSHA CITATIONS IN CIVIL LITIGATION 12.124

13

Workplace Privacy

Everett F. Meiners

  • I. SCOPE OF CHAPTER 13.1
  • II. CONSTITUTIONAL AND COMMON-LAW PRIVACY ISSUES
    • A. United States Constitutional Privacy Protections 13.2
    • B. California Constitutional Privacy Protections 13.3
    • C. Common-Law Privacy Rights 13.4
      • 1. Unauthorized Appropriation of an Individual's Name or Likeness 13.5
      • 2. Unreasonable Intrusion Into an Individual's Private Affairs 13.6
      • 3. Public Disclosure of Private Facts About an Individual 13.7
      • 4. False-Light Publicity 13.8
    • D. Contractual Theories of Recovery 13.9
  • III. SPECIFIC INFORMATION-GATHERING PRACTICES INVOLVING EMPLOYEE PRIVACY ISSUES
    • A. Criminal History Inquiries
      • 1. Arrests Versus Convictions 13.10
      • 2. Remedies 13.11
    • B. Fingerprints and Photographs 13.12
    • C. Polygraph Examinations
      • 1. Federal Law
        • a. Application of Employee Polygraph Protection Act 13.13
        • b. Limited Use of Polygraph Procedure 13.14
        • c. Remedies 13.15
      • 2. California Law 13.16
      • 3. Summary of Factors to Consider Before Implementing Polygraph Testing 13.17
      • 4. Form: Polygraph Consent Form 13.18
    • D. Voice Stress Analysis 13.19
    • E. Integrity Tests 13.20
    • F. Eavesdropping on or Recording Confidential Communications
      • 1. Federal Law 13.21
        • a. Consent Exception 13.22
        • b. Business Extension Exception 13.23
        • c. Remedies 13.24
      • 2. California Law
        • a. Activities Prohibited 13.25
        • b. Wiretapping 13.26
        • c. Eavesdropping 13.27
        • d. Penalties for Wiretapping or Eavesdropping 13.28
        • e. Monitoring Employee's Telephone Calls With the Public 13.29
    • G. Retrieval of E-Mail, Voice-Mail, and Employee Information on Company Computer
      • 1. Restrictions on Access 13.30
      • 2. Internet Content 13.31
      • 3. Blogging and Social Media 13.32
      • 4. Form: Sample Computer/E-Mail Usage Policy 13.33
    • H. Use of Two-Way Mirrors, Surveillance Cameras, and Audio Recording 13.34
    • I. Investigations and Use of Private Investigators
      • 1. Guidelines for Disciplinary Investigations 13.35
      • 2. Potential Claims for False Imprisonment 13.36
      • 3. Potential Claims for False Arrest 13.37
      • 4. Use of Private Investigators 13.38
    • J. Use of Undercover Shoppers 13.39
    • K. Workplace Searches
      • 1. Constitutional Limitations
        • a. Public Employers 13.40
        • b. Private Employers 13.41
      • 2. Statutory Limitations 13.41A
      • 3. Practical Advice About Searches 13.42
      • 4. Form: Workplace Search Policy 13.43
    • L. Medical and Physical Examinations
      • 1. Limitation Under Constitutional Privacy Protection 13.44
      • 2. Limitation Under Common-Law Privacy Protection 13.45
      • 3. Potential Areas of Liability in Addition to Privacy Violation 13.46
      • 4. Applicant Testing
        • a. Constraints Imposed by FEHA and ADA 13.47
        • b. HIV/AIDS Testing 13.48
    • M. Medical Records
      • 1. Federal Law 13.49
      • 2. California Law
        • a. Information Protected; Exceptions 13.50
        • b. Written Authorization 13.51
        • c. Effect of Separate Policy or Agreement 13.52
        • d. Penalties for Unauthorized Disclosure 13.53
        • e. Special Rules for Health Care Providers and Insurance Transactions 13.54
        • f. Employee Assistance Program Records: Confidentiality Versus Required Disclosure 13.55
        • g. Access by Government Agencies 13.56
        • h. Inspection by Employee Representatives; Union Inspection 13.57
    • N. Drug and Alcohol Issues
      • 1. Employee Participation in Rehabilitation Program 13.58
      • 2. Drug Testing
        • a. Drug-Free Workplace Acts for Public Employers and Contractors 13.59
        • b. Types of Testing
          • (1) Applicant Testing 13.60
          • (2) Random Testing
            • (a) Private Employers 13.61
            • (b) Government Employees and Government Contractors 13.62
            • (c) Automatic Postaccident Testing 13.63
          • (3) Reasonable-Suspicion Testing 13.64
        • c. Potential Areas of Liability 13.65
        • d. Form: Sample Drug and Alcohol Policy 13.66
        • e. Guidelines for Implementing Drug- and Alcohol-Testing Policy 13.67
        • f. Employee Consent to Testing and Release of Results 13.68
        • g. Form: Sample Consent to Drug and Alcohol Test 13.69
      • 3. Compassionate Use Act 13.69A
    • O. Psychological Tests 13.70
    • P. Checklist: Questions to Consider Before Implementing Any Form of Employee Testing 13.71
  • IV. USE AND DISCLOSURE OF PRIVATE INFORMATION ABOUT EMPLOYEES
    • A. Employee's Right to Personnel Records 13.72
    • B. Financial Records 13.73
    • C. Disclosure to Persons Other Than Employee
      • 1. Disclosure to Union 13.74
      • 2. Disclosures to Prospective Employers 13.75
      • 3. Voluntary Disclosure to Government Officials 13.76
      • 4. Internal Dissemination 13.77
      • 5. Mandatory Disclosures
        • a. Required Disclosures to Government 13.78
        • b. Subpoena Duces Tecum 13.79
    • D. Negligent Maintenance of Employment Records 13.80
    • E. Nondisclosure of Social Security Numbers 13.81
    • F. Notice of Unauthorized Access 13.82
  • V. ATTEMPTS TO REGULATE EMPLOYEE LIFESTYLES
    • A. Limitations 13.83
    • B. Dress and Grooming Standards
      • 1. Valid Reason Required 13.84
      • 2. Form: Sample Dress and Grooming Policy 13.85
    • C. Moonlighting
      • 1. Prohibition May Be Legitimate 13.86
      • 2. Form: Sample Outside Employment Policy 13.87
    • D. Employment of Spouses, Relatives, or Cohabitants
      • 1. Employer's Policy May Prohibit 13.88
      • 2. Form: Sample Policy on Employment of Relatives 13.89
    • E. Workplace Romances 13.90
    • F. Sexual Activities or Sexual Orientation
      • 1. Constitutional and Statutory Limitations 13.91
      • 2. Local Ordinances and Regulations 13.92
    • G. First Amendment Rights of Government Employees 13.93

14

Employer Liability for Acts of Employees

Joanie L. Roeschlein

Thomas G. Mackey

  • I. TORT THEORIES OF EMPLOYER LIABILITY 14.1
    • A. Agency Law—Employer Directs or Ratifies 14.2
    • B. Negligent Hiring and Retention 14.3
    • C. Respondeat Superior Doctrine 14.4
  • II. WHO IS AN EMPLOYEE?
    • A. Right-of-Control Test 14.5
    • B. Borrowed and Leased Employees: Special and Dual Employment Situations 14.6
  • III. TESTS FOR DETERMINING WHETHER TORTIOUS CONDUCT FALLS WITHIN SCOPE OF EMPLOYMENT
    • A. General Rules and Interpretive Decisions
      • 1. Interests of Employer Versus Employee's Personal Motives 14.7
      • 2. Narrowing of Scope of Respondeat Superior Liability 14.8
    • B. Test to Determine Whether Injurious Conduct Falls Within Scope of Employment 14.9
      • 1. Comparison to Workers' Compensation Test 14.10
        • a. The Going-and-Coming Rule 14.11
          • (1) Special Mission Requested by Employer 14.12
          • (2) Exception to Going-and-Coming Rule When Travel Time Is Compensated 14.13
          • (3) Exception When Employer Substantially Benefits 14.14
          • (4) Exception When Use of Automobile Is Required 14.15
          • (5) Exception for Social Functions 14.16
          • (6) Work-Related Risk 14.17
        • b. Off-Duty and Break-Time Conduct 14.18
        • c. Personal Business and Errands 14.19
        • d. Use of Cell Phones or Other Mobile Devices 14.19A
      • 2. Violation of Employer's Rules and Regulations 14.20
  • IV. LIABILITY FOR ACTIONS OF INDEPENDENT CONTRACTORS
    • A. General Rule of No Liability 14.21
    • B. Exception for Peculiar Risks 14.22
    • C. Exception for Nondelegable Duties 14.23
    • D. Possible Exception for Intentional Torts 14.24
  • V. DAMAGES
    • A. Availability of Punitive Damages Against Employer 14.25
    • B. Noneconomic Damages Under Proposition 51: Joint and Several Liability 14.26
  • VI. EMPLOYER LIABILITY FOR CONTRACTS ENTERED INTO BY EMPLOYEES
    • A. Actual Authority
      • 1. May Be Expressed or Implied 14.27
      • 2. Equal Dignities Rule 14.28
    • B. Ostensible Authority 14.29
    • C. Ratification of Contracts 14.30
    • D. Undisclosed Principal 14.31
    • E. Employer's Liability for Contracts in Excess of Employee's Authority 14.32
    • F. Employee-Agent's Liability to Third Party 14.33
  • VII. EMPLOYEE-AGENT'S RIGHT TO INDEMNIFICATION FROM EMPLOYER 14.34
  • VIII. CORPORATE EMPLOYER'S LIABILITY FOR CRIMINAL ACTS OF EMPLOYEES 14.35

15

Discrimination and Harassment

Teresa R. Tracy

  • I. OVERVIEW 15.1
  • II. PRINCIPAL STATUTES AND ORDERS
    • A. Federal Laws 15.2
      • 1. Civil Rights Act of 1964 (Title VII)
        • a. Coverage 15.3
        • b. Foreign Employment Issues 15.4
        • c. What Is Prohibited 15.5
        • d. Exceptions
          • (1) Particular Organizations and Employees 15.6
          • (2) Bona Fide Occupational Qualification 15.7
            • (a) Customer Preferences Typically Do Not Excuse Discrimination 15.8
            • (b) Employee Safety May Excuse Discrimination 15.9
          • (3) Other Exceptions 15.10
      • 2. Civil Rights Act of 1866: Contracts and Race (§1981)
        • a. Coverage Broadened by Civil Rights Act of 1991 15.11
        • b. What Is Prohibited 15.12
        • c. Exceptions 15.13
      • 3. Civil Rights Act of 1871 (§1983)
        • a. Coverage 15.14
        • b. What Is Prohibited 15.15
        • c. Exceptions 15.16
      • 4. Civil Rights Act of 1871 (§1985) 15.17
      • 5. Equal Pay Act of 1963
        • a. Coverage 15.18
        • b. What Is Prohibited 15.19
        • c. Exceptions 15.20
      • 6. Age Discrimination in Employment Act
        • a. Coverage 15.21
        • b. What Is Prohibited 15.22
        • c. Additional Protections of OWBPA 15.23
        • d. Exceptions
          • (1) Seniority System, Benefit Plan, Retirement Incentives 15.24
          • (2) Efficiency and Safety Concerns 15.25
          • (3) Other Factors 15.26
        • e. Defenses 15.27
      • 7. Immigration Reform and Control Act of 1986
        • a. Coverage 15.28
        • b. What Is Prohibited 15.29
        • c. Exceptions 15.30
      • 8. Americans with Disabilities Act
        • a. Coverage 15.30A
        • b. What Is Prohibited 15.30B
      • 9. Genetic Information Nondiscrimination Act of 2008
        • a. Coverage 15.30C
        • b. What Is Prohibited 15.30D
      • 10. Rehabilitation Act of 1973 15.30E
        • a. Coverage 15.30F
        • b. What Is Prohibited 15.30G
    • B. California Laws
      • 1. Fair Employment and Housing Act
        • a. Coverage
          • (1) Generally 15.31
          • (2) Religious Entities 15.32
        • b. What Is Prohibited 15.33
          • (1) Issues Relating to Age 15.34
          • (2) Issues Relating to Physical or Mental Disability 15.35
          • (3) Issues Relating to Medical Condition 15.36
          • (4) Issues Relating to Religion 15.37
          • (5) Issues Relating to Marital Status 15.38
          • (6) Issues Relating to Sexual Orientation 15.39
          • (7) Issues Relating to Gender Identity 15.40
          • (8) Veteran Status 15.40A
        • c. Exceptions 15.41
          • (1) Bona Fide Occupational Qualification 15.42
          • (2) Business Necessity 15.43
          • (3) Preemption and Other Defenses 15.44
        • d. Failure to Prevent Discrimination 15.44A
      • 2. California Constitution 15.45
      • 3. California Family Rights Act of 1993 15.46
      • 4. California Equal Pay Law 15.47
      • 5. Unruh Civil Rights Act and Related Statutes 15.48
      • 6. Bane Act 15.49
      • 7. Local Laws 15.50
  • III. APPLICATION OF EQUAL EMPLOYMENT LAW
    • A. Who Is Protected
      • 1. Employees, Unpaid Interns, Volunteers, and Independent Contractors 15.51
      • 2. Partnership "Employees" 15.52
      • 3. More Than One Employer 15.53
      • 4. Immigration Status 15.53A
    • B. Basic Theories of Unlawful Discrimination 15.54
      • 1. Disparate Treatment 15.55
        • a. Prima Facie Case 15.56
        • b. Employer's Rebuttal That Action Was Not Discriminatory 15.57
          • (1) Nondiscriminatory Motive Shown by "Same Actor Inference" 15.58
          • (2) Meeting Customer Preferences 15.59
          • (3) "Cat's Paw" Theory of Liability 15.59A
        • c. Burden Shifts Back to Plaintiff 15.60
        • d. Other Proof Issues 15.61
      • 2. Disparate Impact
        • a. Prima Facie Case 15.62
        • b. Employer's Rebuttal 15.63
        • c. Plaintiff's Showing That Nondiscriminatory Alternative Exists 15.64
      • 3. Interplay of Theories: Ricci v DeStefano 15.64A
    • C. Specific Prohibited or Restricted Practices
      • 1. Recruiting 15.65
        • a. Advertising 15.66
        • b. Word-of-Mouth Referrals 15.67
      • 2. Hiring Standards
        • a. Reinstatement 15.67A
        • b. Business Necessity Justification 15.68
        • c. Testing 15.69
        • d. Dress and Personal Appearance 15.70
        • e. Physical Requirements 15.71
        • f. Overqualification 15.72
        • g. Test Scores 15.73
        • h. Waivers 15.73A
      • 3. Promotion
        • a. Seniority Systems 15.74
        • b. Grounds for Promotion 15.75
      • 4. Other Terms and Conditions of Employment
        • a. Pregnancy-Related Issues 15.76
        • b. Age-Related Issues 15.77
        • c. Sex and Gender-Related Issues 15.78
        • d. Providing or Canceling Pension Benefits 15.79
        • e. Language Requirements 15.80
        • f. Accommodation of Religion 15.81
        • g. Health Issues Not Amounting to Disability 15.81A
      • 5. Retaliation 15.82
        • a. Engaging in Protected Activity 15.83
        • b. Adverse Employment Action 15.84
          • (1) Federal Cases 15.85
          • (2) California Cases 15.86
        • c. Causal Link 15.87
        • d. Anti-SLAPP Defense 15.87A
      • 6. Reorganizations or Job Elimination Decisions 15.88
      • 7. Workers With Caregiving Responsibilities 15.88A
    • D. Harassment 15.89
      • 1. Sexual Harassment
        • a. Generally 15.90
        • b. Form: Acknowledgment of Consensual Relationship 15.90A
        • c. Same-Sex Harassment 15.91
        • d. Welcomeness 15.92
        • e. Failure to Take Steps to Prevent 15.92A
        • f. Standard for Judging Sexual Harassment
          • (1) Quid pro Quo 15.93
          • (2) Hostile Environment 15.94
      • 2. Sources of Liability
        • a. Agents and Supervisors 15.95
        • b. Employees and Third Parties 15.96
      • 3. Affirmative Defense to Harassment 15.97
        • a. No Tangible Employment Action 15.98
        • b. Reasonable Care to Prevent and Promptly Correct Harassment 15.99
        • c. Plaintiff's Failure to Act 15.100
        • d. California Law 15.101
      • 4. Discovery Issues 15.102
      • 5. Preventive Steps for Employers 15.103
      • 6. Form: Sample Policy Prohibiting Harassment 15.104
      • 7. Form: Complaint for Harassment 15.105
      • 8. Sexual Harassment Brochure (DFEH-185) 15.106
      • 9. Checklist: Suggested Action Plan for Employer 15.107
      • 10. Nonmanagement Employees' Liability for Harassment 15.108
  • IV. DISCRIMINATION AGAINST INDIVIDUALS WITH DISABILITIES
    • A. Americans With Disabilities Act
      • 1. Coverage
        • a. Employers 15.109
        • b. Employees 15.110
      • 2. What Is Prohibited
        • a. Generally 15.111
        • b. Selection Criteria That Screen Out Individuals With Disabilities 15.112
        • c. Inappropriate Employment Tests 15.113
        • d. Accommodation Requirements 15.114
        • e. Limiting Job Classifications 15.115
        • f. Discrimination Based on Association With Individual With Disability 15.116
        • g. Relationships With Entities Whose Practices May Violate ADA 15.117
      • 3. Key Terms
        • a. Disability 15.118
          • (1) Physical or Mental Impairment 15.119
          • (2) Substantially Limiting 15.120
          • (3) Major Life Activities 15.121
          • (4) Past Record of Physical or Mental Impairment 15.122
          • (5) Regarded as Disabled 15.123
        • b. What Is Not a Disability? 15.124
        • c. Qualified Individual 15.125
          • (1) Employer's Judgment About Essential Job Functions 15.126
          • (2) EEOC Standards 15.127
      • 4. Reasonable Accommodation Requirement
        • a. General Principles 15.128
        • b. Rules Developed by Courts and EEOC 15.129
        • c. Specific Types of Reasonable Accommodations 15.130
          • (1) Retrofitting 15.131
          • (2) Job Restructuring 15.132
          • (3) Part-Time or Modified Work Schedules and Medical Leave 15.133
          • (4) Reassignment 15.134
          • (5) Use of Interpreters 15.135
          • (6) Acquisition or Modification of Equipment 15.136
          • (7) Further Examples of Reasonable Accommodations 15.137
        • d. Interactive Process 15.138
        • e. Undue Hardship 15.139
      • 5. Permissible Grounds for Making an Adverse Employment Decision 15.140
        • a. Job-Related 15.141
        • b. Business Necessity 15.142
        • c. No Reasonable Accommodation Is Possible 15.143
        • d. Direct Threat to Health and Safety 15.144
      • 6. Benefits and Insurance Considerations 15.145
        • a. Preexisting Condition Exclusions on Health Insurance Still Acceptable 15.146
        • b. Insured Benefits Subject to Discrimination Provisions 15.147
        • c. Pension Issues 15.147A
      • 7. ADA Compliance Guidelines 15.148
    • B. FEHA
      • 1. Who Is Covered? 15.149
      • 2. California Law More Protective Than ADA 15.150
      • 3. State Remedies Are Broader Than ADA's 15.151
  • V. REMEDIES AND PROCEDURES UNDER EQUAL EMPLOYMENT LAWS
    • A. General Overview 15.152
      • 1. State 15.153
      • 2. Federal 15.154
      • 3. Choice of Jurisdiction 15.155
      • 4. Effect of "After-Acquired Evidence" Doctrine 15.156
      • 5. Effect of Arbitration Clauses 15.157
    • B. State Administrative Procedures
      • 1. Complaint 15.158
        • a. Time for Filing 15.159
        • b. Filing Procedure 15.160
        • c. Parties Named in the Complaint 15.161
        • d. Service 15.162
      • 2. Investigation
        • a. Fact Gathering by DFEH 15.163
        • b. Discovery 15.164
        • c. Confidentiality 15.165
      • 3. Employer's Response
        • a. Position Statement 15.166
        • b. Defenses 15.167
      • 4. Disposition of the Complaint
        • a. Pre-Determination Settlement 15.168
        • b. Dismissal and Closure 15.169
        • c. Dispute Resolution [Deleted] 15.170
        • d. Accusation [Deleted] 15.171
        • e. Right-to-Sue Notice 15.172
        • f. Mandatory Dispute Resolution and DFEH Litigation 15.172A
      • 5. Prehearing Procedures
        • a. Parties [Deleted] 15.173
        • b. Notice of Defense and Representation of Respondent [Deleted] 15.174
        • c. Transfer to Court [Deleted] 15.175
        • d. Discovery and Motions [Deleted] 15.176
      • 6. Evidentiary Hearing
        • a. Hearing Officer [Deleted] 15.177
        • b. Prehearing Procedures [Deleted] 15.178
        • c. The Hearing [Deleted] 15.179
        • d. Posthearing Briefs and Motions [Deleted] 15.180
      • 7. Decision and Order
        • a. Proposed Decision [Deleted] 15.181
        • b. FEHC's Decision [Deleted] 15.182
        • c. Reconsideration [Deleted] 15.183
        • d. Relief That FEHC May Order [Deleted] 15.184
      • 8. Judicial Review and Enforcement
        • a. Review [Deleted] 15.185
        • b. Enforcement [Deleted] 15.186
    • C. Federal Procedures
      • 1. The Charge or Complaint 15.187
        • a. Who May File 15.188
        • b. Time for Filing 15.189
        • c. Filing Procedure 15.190
        • d. Service 15.191
      • 2. EEOC Investigation
        • a. Workshare Arrangement With DFEH 15.192
        • b. Mediation and Fact Gathering 15.193
        • c. Subpoenas and Discovery 15.194
        • d. Confidentiality 15.195
      • 3. Employer's Response
        • a. Internal Investigation 15.196
        • b. Position Statement 15.197
        • c. Defenses 15.198
      • 4. Disposition of Charge
        • a. Settlement 15.199
        • b. Withdrawal 15.200
        • c. Formal Determination by the EEOC 15.201
        • d. Conciliation 15.202
        • e. Notice of Right to Sue 15.203
      • 5. EEOC Litigation 15.204
        • a. Administrative Prerequisites 15.205
        • b. Statute of Limitations 15.206
        • c. Intervention by the Employee 15.207
        • d. Scope of the Litigation 15.208
  • VI. LITIGATING STATE LAW CLAIMS 15.209
    • A. Procedural Prerequisites
      • 1. Jurisdiction 15.210
      • 2. Venue 15.211
      • 3. Exhaustion of DFEH Administrative Remedies 15.212
      • 4. Statute of Limitations 15.213
      • 5. Special Issues Related to Public Employees 15.214
    • B. Preparing the Complaint
      • 1. Parties
        • a. Plaintiffs 15.215
        • b. Defendants 15.216
      • 2. Claims
        • a. Grounds of Discrimination 15.217
        • b. Discriminatory Practices 15.218
      • 3. Remedies
        • a. Full Range Available 15.219
        • b. Back Pay 15.220
        • c. Reinstatement, Promotion, and Injunctive Relief 15.221
        • d. Front Pay 15.222
        • e. Compensatory Damages 15.223
        • f. Punitive Damages 15.224
        • g. Attorney Fees, Costs, and Prejudgment Interest 15.225
        • h. Training 15.226
        • i. Injunction Under Unfair Competition Law 15.227
    • C. Responding to the Complaint
      • 1. Removal to Federal Court 15.228
      • 2. Demurrer or Motion for Judgment on Pleadings 15.229
      • 3. Answer 15.230
    • D. Discovery, Motions, and Trial 15.231
      • 1. Discovery 15.232
      • 2. Dispositive Motions 15.233
      • 3. Trial
        • a. Right to Jury Trial 15.234
        • b. Motions in Limine 15.235
        • c. Expert Testimony 15.236
        • d. Burdens of Proof 15.237
        • e. Estoppel in Disability Claims 15.238
        • f. Evidentiary Issues 15.239
    • E. Differences for Litigation Under Equal Pay Act 15.240
      • 1. Exhaustion of Remedies 15.241
      • 2. Statute of Limitations 15.242
      • 3. Parties 15.243
      • 4. Burden of Proof 15.244
      • 5. Remedies 15.245
    • F. Public Policy Claims 15.246
    • G. Expansion of State Court Litigation 15.247
  • VII. LITIGATING FEDERAL CLAIMS 15.248
    • A. Procedural Prerequisites
      • 1. Jurisdiction 15.249
      • 2. Venue 15.250
      • 3. Exhaustion of Administrative Remedies 15.251
      • 4. Statutes of Limitations 15.252
      • 5. Special Issues Relating to Federal Employees 15.252A
    • B. Preparing the Complaint
      • 1. Parties
        • a. Plaintiffs 15.253
        • b. Defendants 15.254
        • c. Pleading 15.255
      • 2. Remedies 15.256
        • a. Back Pay 15.257
        • b. Reinstatement, Promotion, and Injunctive Relief 15.258
        • c. Front Pay 15.259
        • d. Compensatory and Punitive Damages 15.260
        • e. Special Damage Provisions in Mixed Motive Cases 15.261
        • f. Attorney Fees, Costs, and Prejudgment Interest 15.262
    • C. Responding to the Complaint
      • 1. Removal to Federal Court 15.263
      • 2. Motion to Dismiss or Motion for Judgment on Pleadings 15.264
      • 3. Answer 15.265
    • D. Discovery 15.266
    • E. Dispositive Motions 15.267
    • F. Trial
      • 1. Right to Jury Trial 15.268
      • 2. Motions in Limine 15.269
      • 3. Burdens of Proof 15.270
    • G. Litigation Under Federal Discrimination Laws Other Than Title VII
      • 1. Americans with Disabilities Act 15.271
      • 2. Age Discrimination in Employment Act 15.272
        • a. Jurisdiction 15.273
        • b. Exhaustion of Administrative Remedies 15.274
        • c. Statute of Limitations 15.275
        • d. Parties 15.276
        • e. Statistical Evidence and Other Circumstantial Evidence 15.276A
        • f. Burden of Proof: The Decisive Factor Requirement 15.276B
        • g. Remedies 15.277
        • h. Jury Trial 15.278
      • 3. Equal Pay Act 15.279
        • a. Jurisdiction 15.280
        • b. Exhaustion of Administrative Remedies 15.281
        • c. Statute of Limitations 15.282
        • d. Parties 15.283
        • e. Summary Judgment 15.283A
        • f. Remedies 15.284
        • g. Jury Trial 15.285
      • 4. Section 1981 15.286
        • a. Jurisdiction 15.287
        • b. Exhaustion of Administrative Remedies 15.288
        • c. Statute of Limitations 15.289
        • d. Parties and Pleading 15.290
        • e. Remedies 15.291
        • f. Jury Trial 15.292
      • 5. Section 1983 15.293
    • H. Bankruptcy Issues 15.293A
      • 1. Immigration Reform and Control Act 15.294

16

Whistleblower Issues

Cynthia E. Fruchtman

  • I. INTRODUCTION 16.1
  • II. WHISTLEBLOWING AS PROTECTED ACTIVITY 16.2
  • III. WHO QUALIFIES FOR WHISTLEBLOWER STATUS? 16.3
  • IV. PUBLIC POLICY PROTECTS WHISTLEBLOWERS 16.4
  • V. PRIVILEGE AND IMMUNITY EXCEPTIONS TO WHISTLEBLOWER PROTECTION
    • A. Privilege of Confidentiality Is Breached or Trade Secrets Are Disclosed 16.5
    • B. Privilege for Statements Made in Judicial or Official Proceedings 16.5A
    • C. Tribal Immunity 16.5B
    • D. Administrative Investigations 16.5C
  • VI. SARBANES-OXLEY ACT 16.6
  • VII. WHISTLEBLOWER'S MOTIVATION 16.7
  • VIII. WHEN WHISTLEBLOWER PROTECTIONS ARISE 16.8
  • IX. EMPLOYER MEASURES; WHISTLEBLOWER POLICY 16.9
  • X. EXHAUSTION REQUIREMENT 16.9A
  • XI. EMPLOYER RESPONSE TO WHISTLEBLOWING
    • A. Inappropriate Response 16.10
    • B. Appropriate Response 16.11
  • XII. TIMELINESS OF WHISTLEBLOWER COMPLAINT 16.12
  • XIII. PENALTIES FOR RETALIATION 16.13
  • XIV. INSURANCE COVERAGE FOR DEFENSE OF WHISTLEBLOWER CLAIMS 16.14
  • XV. PRACTICAL ADVICE 16.15

16A

Workplace Investigations

Patricia C. Pérez

  • I. INTRODUCTION
    • A. Scope of Chapter 16A.1
    • B. Duty to Investigate 16A.2
    • C. Types of Claims Requiring Investigation; Scope 16A.3
  • II. CASE LAW GOVERNING WORKPLACE INVESTIGATIONS 16A.4
  • III. PRELIMINARY ISSUES TO CONSIDER BEFORE STARTING THE INVESTIGATION
    • A. Ethical Considerations 16A.5
    • B. Privacy Issues 16A.6
  • IV. WHO SHOULD INVESTIGATE? 16A.7
  • V. STARTING THE INVESTIGATION 16A.8
  • VI. STRATEGIC PLANNING 16A.9
  • VII. INTERVIEWS AND DOCUMENT REVIEW 16A.10
    • A. Identity of Interviewee; Scheduling Interviews 16A.11
    • B. Checklist: Suggested Interview Procedures and Questions 16A.11A
  • VIII. REACHING FAIR AND WELL-REASONED CONCLUSIONS 16A.12
  • IX. DRAFTING AN INVESTIGATION REPORT 16A.13
  • X. INSTITUTING CORRECTIVE ACTION AND DOCUMENTING THE INVESTIGATION 16A.14
    • A. Communicating the Results 16A.15
  • XI. ADDITIONAL ISSUES
    • A. Unionized Employees 16A.16
    • B. Police Officers and Firefighters 16A.16A
    • C. Litigation Issues 16A.17

17

Discipline and Termination

Douglas J. Farmer

James R. Moss, Jr.

Rodney Sorensen

  • I. AT-WILL EMPLOYMENT
    • A. Presumption in California 17.1
    • B. Overcoming Presumption of Employer's Right to Terminate at Will 17.2
      • 1. Statutory Limitations on At-Will Terminations
        • a. Equal Employment Opportunity Statutes 17.3
        • b. Antiretaliation and Whistleblower Statutes 17.4
        • c. Leave of Absence Statutes 17.5
        • d. Labor Code Protections 17.6
      • 2. Public Policy Limitations on At-Will Terminations 17.7
        • a. "Fundamental" Public Policy Must Be at Stake 17.8
        • b. Policy Must Benefit Public at Large 17.9
        • c. Policy Must Apply to Defendant Employer 17.10
        • d. Retaliatory Terminations Deemed to Violate Public Policy 17.11
          • (1) Termination for Refusing to Further Employer's Unlawful Conduct 17.12
          • (2) Termination for Satisfying a Legal Obligation 17.13
          • (3) Termination for Exercising a Legal Right 17.14
          • (4) Termination for Opposing or Reporting Employer's Unlawful Conduct 17.15
          • (5) Termination for Engaging in "Protected Activity" Under NLRA 17.15A
        • e. Private Disputes Not Protected 17.16
      • 3. Contractual Limitations on At-Will Termination
        • a. Express and Implied-in-Fact Contracts to Terminate Only for Good Cause 17.17
          • (1) Express Contracts
            • (a) Oral Contracts 17.18
            • (b) Written Contracts 17.19
          • (2) Implied-in-Fact Contract 17.20
            • (a) Employment Policies 17.21
            • (b) Past Employment Practices 17.22
            • (c) Employee's Length of Service 17.23
            • (d) Promises of Job Security, Promotions, Raises, and Bonuses 17.24
            • (e) Other Employer Writings 17.25
        • b. Covenant of Good Faith and Fair Dealing 17.26
          • (1) Violation of Good Cause Standard Is Prerequisite to Establishing Breach of the Covenant 17.27
          • (2) No Tort Recovery for Bad Faith Denial of Existence of Contract 17.28
  • II. ADVERSE EMPLOYER ACTIONS SHORT OF TERMINATION
    • A. Constructive Termination 17.29
      • 1. Intolerable Conditions
        • a. Extraordinary and Egregious Conditions; Resignation Coerced 17.30
        • b. Determination by Objective Standard
          • (1) No Alternative But to Quit 17.31
          • (2) Demotions, Transfers, Salary Decreases, and Performance Ratings Insufficient Alone to Support Claim 17.32
      • 2. Actual Notice to Employer Required 17.33
      • 3. Statute of Limitations 17.33A
    • B. Wrongful Discipline 17.34
    • C. Action Short of Termination May Support Retaliation or Discrimination Claim 17.34A
  • III. CAUSES OF ACTION RELATED TO WRONGFUL TERMINATION
    • A. Defamation
      • 1. Elements 17.35
      • 2. Defenses
        • a. Preemption 17.36
        • b. Privileged Communications 17.37
    • B. Intentional and Negligent Infliction of Emotional Distress 17.38
    • C. Interference With Contract or Prospective Economic Advantage 17.39
    • D. Other Related Causes of Action
      • 1. Fraud 17.40
      • 2. Misrepresentation Preventing Former Employee's Reemployment 17.41
      • 3. Negligent Performance of Contractual Duty to Evaluate 17.42
      • 4. Loss of Consortium or Negligent Infliction of Emotional Distress Claims by Employee's Spouse 17.43
  • IV. REMEDIES IN WRONGFUL TERMINATION ACTIONS
    • A. Contract Damages 17.44
    • B. Tort Damages
      • 1. General Damages 17.45
      • 2. Special Damages 17.46
      • 3. Punitive Damages 17.47
    • C. Mitigation of Damages 17.48
    • D. Equitable Remedies 17.49
  • V. DEFENSES TO A WRONGFUL TERMINATION ACTION
    • A. Preemption by Statutory Remedy
      • 1. Termination Involving Federal Labor Law Issues
        • a. Engaging in Protected Activities 17.50
        • b. Terminated Employee Covered by Collective Bargaining Agreement 17.51
        • c. Claims Against Union by Former Union Employee 17.52
        • d. Termination Claims by Railway Employee or Airline Worker 17.53
        • e. Preemption by Federal Banking Laws 17.54
        • f. Preemption by Immigration Reform and Control Act 17.54A
      • 2. Termination Involving Discrimination Issues
        • a. Preemption by FEHA 17.55
        • b. Preemption by Federal Discrimination Statutes 17.56
      • 3. Termination Involving Pension Benefits 17.57
      • 4. California Workers' Compensation Law 17.58
    • B. Termination for Cause 17.59
    • C. Termination Based on Good Faith Investigation 17.60
    • D. After-Acquired Evidence of Employee Misconduct 17.61
    • E. No Employment Relationship 17.62
    • F. Statute of Limitations 17.63
  • VI. INSURANCE COVERAGE FOR WRONGFUL TERMINATION CLAIMS 17.64
  • VII. AVOIDING WRONGFUL TERMINATION CLAIMS
    • A. Stress At-Will Policy of the Company 17.65
      • 1. Include At-Will Language in Employment Applications 17.66
      • 2. Form: Sample At-Will Statement and "After-Acquired Evidence" Clause for Employment Application 17.67
    • B. Draft Offer Letters to Avoid "Good Cause" Presumption
      • 1. Specific Language to Avoid 17.68
      • 2. Form: Offer Letter 17.69
    • C. Employment Agreements
      • 1. Recommended Content 17.70
      • 2. Form: Sample At-Will Provision for Employment Agreement 17.71
    • D. Employee Handbooks
      • 1. At-Will Statements in Employee Handbooks 17.72
      • 2. "Introductory Period" Provisions 17.73
      • 3. Discipline and Termination Policies
        • a. Potential Consequences of Ill-Drafted Provisions 17.74
        • b. "Progressive Discipline" Issues 17.75
    • E. Performance Evaluations
      • 1. Common Mistakes 17.76
      • 2. Guidelines for Employee Evaluation 17.77
        • a. Utilize Objective Standards 17.78
        • b. Avoid Generic Preprinted "Check the Box" Forms 17.79
        • c. Coordinate Evaluation Forms With Employee Job Descriptions 17.80
        • d. Include Specific Examples of Strengths and Weaknesses 17.81
        • e. Discuss Evaluation With Employee 17.82
        • f. Allow Employee to Provide Feedback to the Evaluation 17.83
        • g. Consider Review by More Than One Level 17.84
        • h. Periodically Audit the Evaluation System 17.85
        • i. Train and Evaluate the Evaluators 17.86
        • j. Establish Effective Recordkeeping System 17.87
        • k. Utilize Evaluation System to Prevent Lawsuits 17.88
    • F. Grievance Policies 17.89
    • G. Protecting Internal Investigations 17.90
    • H. Discipline Checklist 17.91
  • VIII. TERMINATION OF THE EMPLOYMENT RELATIONSHIP 17.92
    • A. Termination Checklist 17.93
    • B. Additional Preventive Measures in "High Risk" Situations 17.94
    • C. Required Pamphlet and Notice of Termination 17.94A
    • D. Termination Letter 17.95
    • E. Termination Meeting 17.96
    • F. Time Limit for Payment of Final Wages 17.97
    • G. Exit Interview 17.98
    • H. Severance Pay and Settlement Agreements 17.98A
    • I. Avoiding Posttermination Liability 17.99
  • IX. SEVERANCE AND SETTLEMENT AGREEMENTS
    • A. Releases of Liability
      • 1. General Principles 17.100
      • 2. Unilateral or Mutual Release of Claims 17.101
      • 3. Releases of Age Discrimination Claims Under the OWBPA 17.102
      • 4. Releases of Wage Claims 17.103
      • 5. Release of Workers' Compensation Claims 17.104
      • 6. No Waiver of Unemployment Insurance Claims 17.105
      • 7. Waiver of Unknown Claims 17.106
    • B. Tax Considerations
      • 1. Settlement Amounts 17.107
      • 2. Attorney Fees 17.108
    • C. Confidentiality 17.109
    • D. Employment References 17.110
    • E. Waiver of Reemployment Rights 17.111
    • F. Form: Sample Settlement Agreement and Mutual Release 17.112
    • G. Form: Short Form Severance Agreement 17.113
  • X. POSTTERMINATION ISSUES
    • A. Employment References 17.114
      • 1. No-Reference or Limited-Reference Policies 17.115
      • 2. Truthful Reference Guidelines 17.116
    • B. Unemployment Insurance Claims 17.117
  • XI. SUMMARY OF LAWS GOVERNING TERMINATION AND DISCIPLINE
    • A. Chart: Federal Statutes Limiting Termination and Discipline 17.118
    • B. Chart: California Statutes Limiting Termination and Discipline 17.119

18

Reductions in Force and Plant Closings

Cynthia L. Jackson

Ashley H. Kimball

Brian K. Tomkiel

Angela J. McIsaac

  • I. INTRODUCTION 18.1
  • II. PLANNING A REDUCTION IN FORCE (RIF) 18.2
    • A. Consider Alternatives to Layoff and Termination
      • 1. Offering Incentives for Voluntary Termination 18.3
        • a. Releases and Waivers of Claims
          • (1) Basic Requirements for Standard Waiver 18.4
          • (2) Requirements for Waiver by Employees Age 40 and Over: OWBPA 18.5
          • (3) Waiver for Group RIF 18.6
            • (a) No Ratification of Voidable Releases 18.7
            • (b) Form: Release 18.8
        • b. Claims Not Subject to Waiver 18.9
        • c. Tax Issues in Releasing ADEA and Title VII Claims 18.10
      • 2. Transfers, Bumping, and Recall 18.11
    • B. Establish Selection Criteria for Termination
      • 1. Neutral Criteria 18.12
      • 2. Typical Criteria for Retaining or Laying Off Employees
        • a. Merit 18.13
        • b. Versatility 18.14
        • c. Seniority 18.15
        • d. Salary 18.16
      • 3. Prohibited Criteria 18.17
    • C. Notice 18.18
    • D. Checklist: RIF Guidelines for Minimizing Litigation Risk 18.19
  • III. WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT (WARN)
    • A. Background 18.20
    • B. Covered Employers 18.21
      • 1. Requisite Number of Employees
        • a. Employees Counted 18.22
        • b. Employees Not Counted 18.23
      • 2. Application to Independent Contractors and Subsidiaries 18.24
      • 3. Application on Sale or Acquisition 18.25
    • C. Triggering Events 18.26
      • 1. Definitions of "Plant Closing," "Termination," and "Mass Layoff"
        • a. Duration; Number of Employees Affected 18.27
        • b. Strikes and Other Exemptions 18.28
      • 2. Definition of "Employment Loss" and "Layoff" 18.29
    • D. Notice
      • 1. Required Recipients 18.30
      • 2. Contents 18.31
      • 3. Timing of Notice
        • a. General Rule 18.32
        • b. Exceptions 18.33
          • (1) Faltering Company Exception 18.34
          • (2) Unforeseen Business Circumstance Exception 18.35
          • (3) Natural Disaster Exception 18.36
      • 4. Manner of Service 18.37
      • 5. Forms 18.38
        • a. Form: Notice to Employees or Representative re: Mass Layoff 18.39
        • b. Form: Notice to Chief Elected Government Official, State Dislocated Worker Unit, or Workforce Investment Board re: Mass Layoff 18.40
        • c. Form: Notice to Chief Elected Government Official or Dislocated Worker Unit re: Plant Closing/Termination or Relocation 18.41
    • E. Liability for Violation of WARN Notice Requirements 18.42
    • F. Defenses
      • 1. Statute of Limitations 18.43
      • 2. Waiver 18.44
  • IV. CONTINUING HEALTH INSURANCE BENEFITS
    • A. COBRA 18.45
    • B. Labor Code §2807 18.46
  • V. DISCRIMINATION CLAIMS
    • A. Protected Categories 18.47
    • B. Showing Necessary to Support Discrimination Action
      • 1. Disparate Treatment
        • a. Prima Facie Case 18.48
        • b. Rebuttal 18.49
        • c. Pretext 18.50
      • 2. Disparate Impact
        • a. Prima Facie Case 18.51
        • b. Rebuttal 18.52
        • c. Nondiscriminatory Alternatives 18.53
        • d. Adverse Impact Analysis for Age Discrimination 18.54
    • C. Defenses 18.55
  • VI. BREACH OF CONTRACT AND RELATED CLAIMS 18.56
  • VII. NLRA COMPLIANCE 18.57
    • A. Subjects of Decision Bargaining 18.58
      • 1. Total Plant Closings 18.59
      • 2. Partial Plant Closings 18.60
      • 3. Plant Relocations 18.61
      • 4. Subcontracting to Nonunion Employees 18.62
    • B. Subjects of Effects Bargaining 18.63
    • C. The Duty to Bargain 18.64
      • 1. Decision Bargaining 18.65
      • 2. Effects Bargaining 18.66
    • D. The Duty to Disclose 18.67
    • E. NLRB-Imposed Remedies 18.68
      • 1. Decision Bargaining 18.69
      • 2. Effects Bargaining 18.70
    • F. Third Party Liability
      • 1. Parent-Subsidiary 18.71
      • 2. Effect of Bankruptcy Proceedings 18.72
    • G. Statute of Limitations 18.73
    • H. Preemption of State Law Claims by LMRA 18.74
  • VIII. BANKRUPTCY ISSUES 18.75
    • A. Employer Bankruptcy
      • 1. Priority for Certain Wages and Benefits Claims 18.76
      • 2. Employee Benefit Plan Contributions 18.77
      • 3. Retiree Benefits 18.78
      • 4. Employee Contract Termination Claims 18.79
      • 5. Collective Bargaining Agreements 18.80
      • 6. Non-NLRA Employment Agreements 18.81
      • 7. Labor Union Standing and Plan of Reorganization 18.82
      • 8. Nondischargeable Claims 18.83
    • B. Employee Bankruptcy 18.84

19

Insurance Coverage for Employment Claims

Larry M. Golub

  • I. SCOPE OF CHAPTER 19.1
  • II. COVERAGE UNDER STANDARD BUSINESS GENERAL LIABILITY POLICIES
    • A. Overview of Coverage 19.2
    • B. Specific Coverage Issues
      • 1. Bodily Injury and Property Damage Coverage 19.3
      • 2. Requirement of an "Occurrence" 19.4
      • 3. Advertising Injury and Personal Injury Coverage Issues 19.5
      • 4. General Liability Policy Exclusions 19.6
      • 5. Nonstandard General Liability Policies 19.7
      • 6. Employment-Related Practices Exclusion 19.7A
      • 7. Is the Defendant an Insured? 19.7B
  • III. COVERAGE UNDER EXCESS OR UMBRELLA POLICIES 19.8
  • IV. COVERAGE UNDER WORKERS' COMPENSATION POLICIES 19.9
  • V. COVERAGE UNDER DIRECTORS AND OFFICERS LIABILITY POLICIES 19.10
  • VI. COVERAGE UNDER ERRORS AND OMISSIONS POLICIES 19.11
  • VII. COVERAGE UNDER EMPLOYMENT PRACTICES LIABILITY POLICIES 19.12
    • A. Form: Employment Practices Liability Coverage (NAS Insurance Services Form 1808BO-0910) 19.13
    • B. Form: Extension of Coverage for Defense Only of Wage and Hour Claims (NAS Insurance Services Form 1808B-0912) 19.13A
    • C. Form: Employment Practices Liability Coverage Section (Chubb Form 14-02-3797) 19.14
    • D. Form: Broad-Form Employment Practices Liability Insurance 19.15
  • VIII. RESPONDING TO AN EMPLOYEE CLAIM
    • A. Tender to All Potentially Applicable Insurers 19.16
    • B. Form: Tender of Claim 19.17
    • C. Factors to Consider in Analyzing Coverage 19.18
      • 1. Occurrence Versus Claims-Made Coverage 19.19
      • 2. Coverage Preclusion by Any Applicable Statutes 19.20
      • 3. Defendants Named in the Action 19.21
        • a. Is the Employee Covered? 19.22
        • b. Is the Employer Covered? 19.23
      • 4. Insurer's Duty to Defend 19.24

20

Mediation and Arbitration of Employment Disputes

Robert M. Cassel

  • I. OVERVIEW 20.1
  • II. MEDIATION
    • A. Available at All Stages of Dispute 20.2
    • B. Factors to Consider in Deciding Whether to Mediate 20.3
    • C. Selecting the Mediator 20.4
    • D. Mediator's Methodology 20.5
    • E. Who Pays for Mediation? 20.6
    • F. Checklist: Premediation Steps 20.7
    • G. Mediation Session 20.8
    • H. Practice Points: Strategies for Successful Mediation 20.9
    • I. Mediated Settlement Agreement 20.10
    • J. Terms to Include in Mediated Settlement Agreement
      • 1. Recital of Settlement 20.11
      • 2. Payment Terms 20.12
      • 3. Release 20.13
      • 4. Confidentiality 20.14
      • 5. More Formal Agreement to Follow 20.15
      • 6. Employment References 20.16
      • 7. Controlling Law and Enforcement Provisions 20.17
      • 8. Execution 20.18
      • 9. Language Mandated by OWBPA 20.19
    • K. Form: Sample Mediated Settlement Agreement 20.20
  • III. ARBITRATION
    • A. Practical Considerations in Deciding Whether to Compel Arbitration 20.21
      • 1. Rule of Law 20.22
      • 2. Competence and Bias of Decision-Maker 20.23
      • 3. Discovery Rights 20.24
      • 4. Statement of Decision 20.25
    • B. Policy Considerations
      • 1. When Arbitration Agreement Is Binding 20.26
      • 2. Who Decides Whether Parties Agreed to Arbitrate 20.27
      • 3. When Arbitration Agreement Is Not Enforceable
        • a. "Contracts of Employment" Exclusion 20.28
        • b. Title VII and Other Federal Claims 20.29
        • c. Issues Outside Scope of Agreement to Arbitrate 20.30
        • d. Unconscionability 20.31
        • e. Class Action Waivers 20.31A
        • f. Grounds for Rescission 20.32
        • g. Waiver of Right to Arbitrate 20.33
      • 4. Collective Bargaining Agreements 20.34
      • 5. State Efforts to Regulate Arbitration Agreements 20.35
      • 6. Effect of Arbitration Agreements on Administrative Claims 20.36
    • C. Judicial Arbitration 20.37
    • D. Selection of Arbitrator 20.38
      • 1. Under California Arbitration Act 20.39
      • 2. Under AAA and JAMS Rules
        • a. AAA 20.40
        • b. JAMS 20.41
    • E. Prearbitration Discovery
      • 1. Under California Arbitration Act 20.42
      • 2. Under AAA and JAMS Rules
        • a. AAA 20.43
        • b. JAMS 20.44
    • F. Arbitration Hearing
      • 1. Under California Arbitration Act 20.45
      • 2. Under AAA and JAMS Rules
        • a. AAA 20.46
        • b. JAMS 20.47
    • G. Preparing for Arbitration Hearing 20.48
      • 1. Pleadings 20.49
      • 2. Arbitration Brief 20.50
      • 3. Opening Statement 20.51
      • 4. Witness Preparation 20.52
      • 5. Examination of Opposing Party's Witnesses 20.53
      • 6. Closing Arguments 20.54
    • H. Arbitrator's Award
      • 1. Requirements 20.55
      • 2. Time for Making Award 20.56
      • 3. Relief Granted 20.57
      • 4. Correction of Award by Arbitrator 20.58
      • 5. Collateral Effect of Award
        • a. Res Judicata 20.59
        • b. Unconfirmed Award as Contract 20.60
      • 6. Court Review
        • a. Confirmation, Vacation, or Correction of Award 20.61
        • b. Pearson Dental Supplies, Inc. v Superior Court 20.61A
        • c. Powers of Reviewing Court 20.62
        • d. Review Procedure 20.63
    • I. Alternative Arbitration Procedures
      • 1. High-Low Arbitration 20.64
      • 2. Baseball Arbitration 20.65
    • J. Form: Sample Mediation/Arbitration Clause for Employment Agreement 20.66

21

Public Employment Issues

Bonnie Bogue

Erich Shiners

  • I. LEGAL FRAMEWORK FOR PUBLIC EMPLOYEE COLLECTIVE BARGAINING 21.1
    • A. State 21.2
    • B. Local Government 21.3
    • C. Public Schools 21.4
    • D. Higher Education 21.5
    • E. Public Transit 21.6
    • F. Trial Courts 21.7
    • G. In-Home Supportive Services 21.7A
  • II. REPRESENTATION RIGHTS AND DUTIES
    • A. Employees' Right to Be Represented 21.8
    • B. Self-Representation Right 21.9
    • C. Managerial, Supervisory and Confidential Employees 21.10
    • D. Union's Right to Represent 21.11
    • E. Union Access to Employees 21.12
    • F. Union's Duty of Fair Representation 21.13
    • G. Organizational Security 21.14
  • III. RECOGNITION PROCEDURES 21.15
    • A. Unit Determination 21.16
      • 1. Unit Determination Under PERB Regulations 21.17
      • 2. Unit Determination Under MMBA and Trial Court Acts 21.18
    • B. Representation Elections and Recognition Procedures 21.19
    • C. Decertifying the Representative 21.20
  • IV. COLLECTIVE BARGAINING RIGHTS 21.21
    • A. Scope of Representation 21.22
    • B. Duty to Bargain 21.23
      • 1. Good Faith Bargaining 21.24
      • 2. Unilateral Action 21.25
    • C. Impasse Resolution 21.26
      • 1. Mediation 21.27
      • 2. Factfinding 21.28
      • 3. Arbitration of Impasses 21.29
    • D. Strikes 21.30
      • 1. Right to Strike 21.31
      • 2. Enjoining Strikes 21.32
      • 3. Discipline of Strikers 21.33
    • E. Agreements 21.34
  • V. ENFORCEMENT OF STATUTORY RIGHTS AND OBLIGATIONS
    • A. PERB-Administered Statutes 21.35
      • 1. PERB Unfair Practice Procedures 21.36
      • 2. Judicial Review of PERB Decisions 21.37
    • B. Enforcement of Non-PERB Statutes 21.38
  • VI. ENFORCEMENT OF CONTRACT RIGHTS 21.39
    • A. Deferral to Arbitration 21.40
    • B. Enforcement of Arbitration Awards 21.41
    • C. Arbitrability 21.42

 

ADVISING CALIFORNIA EMPLOYERS AND EMPLOYEES

(1st Edition)

March 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH01

Chapter 1

Hiring Guidelines and Pitfalls

01-047

§1.47

Notice and Disclosure

01-048

§1.48

Certification to Credit Reporting Agency

01-049

§1.49

Certificate of Compliance by Agency

01-050

§1.50

Notification of Request for Investigative Consumer Report

01-051

§1.51

Authorization to Obtain Investigation Reports

01-052

§1.52

Pre-Adverse Action Disclosure

01-053

§1.53

Summary of Rights Under Fair Credit Reporting Act

01-054

§1.54

Post-Adverse Action Disclosure

01-055

§1.55

Notification of Intent to Procure Investigative Consumer Report

01-075

§1.75

Checklist: Paperwork for New Employees

01-076

§1.76

Checklist: Trade Secret Concerns in Interviewing Applicant

01-077

§1.77

Checklist: Issues to Consider Before Implementing Employee Testing

01-079

§1.79

Applicant’s Statement

01-080

§1.80

Notification of Rejection of Application

01-081

§1.81

Employment Offer Letter

01-082

§1.82

Mutual Agreement to Arbitrate Claims

01-083

§1.83

Authorization for Job-Related Medical Examination and Drug-Testing and for Release of Information

01-084

§1.84

Sample Job Description Questionnaire

01-085

§1.85

Sample Job Description for Receptionist

CH02

Chapter 2

Employment Contracts and Executive Compensation

02-011

§§2.11–2.102

Preamble to Employment Contract

 

§2.13

Recitals

 

§2.19

Term of Employment

 

§2.20

Place of Employment

 

§2.22

Employee’s Duties and Authority

 

§2.25

Outside Business Activities Precluded or Restricted

 

§2.26

Reasonable Time and Effort Required

 

§2.27

Covenant Not to Compete During Employment Term

 

§2.28

Morality Clause

 

§2.30

Consulting Services

 

§2.36

Base Salary

 

§2.37

Adjustment to Base Salary

 

§2.38

Incentive Compensation

 

§2.39

Stock Bonus

 

§2.40

Stock Options

 

§2.41

Cash Bonus

 

§2.42

Commissions

 

§2.43

Royalties

 

§2.44

Deferred Compensation

 

§2.46

Additional Benefits

 

§2.47

Vacation

 

§2.49

Board Membership

 

§2.51

Expense Reimbursement

 

§2.52

Automobile Allowance

 

§2.53

Life Insurance

 

§2.55

Repayment of Compensation Held Excessive

 

§2.57

Ownership of Intangibles

 

§2.61

Proprietary Information Obligations

 

§2.62

Noninterference

 

§2.64

Use of Employee’s Name and Image

 

§2.66

Indemnification by Employer

 

§2.67

Employer-Provided Indemnity Insurance

 

§2.68

Qualification for Surety Bond

 

§2.69

Indemnification by Employee

 

§2.72

Termination of Employment; Termination Date

 

§2.73

Involuntary Termination

 

§2.74

Termination Payment

 

§2.75

Termination of Employment by Employee

 

§2.76

Termination for Cause

 

§2.77

Termination on Resignation

 

§2.78

Termination on Retirement

 

§2.79

Termination Because of Disability

 

§2.80

Termination on Death

 

§2.81

Employer Has Right to Terminate or Assign Agreement

 

§2.82

Agreement Survives Combination or Dissolution

 

§2.83

Rights and Obligations After Notice of Termination

 

§2.84A

Other Benefits

 

§2.84B

IRC §409A

 

§2.86

Arbitration

 

§2.88

Injunction

 

§2.90

Liquidated Damages for Employer

 

§2.91

Liquidated Damages for Employee

 

§2.91A

Statute of Limitations

 

§2.92

Integration

 

§2.93

Choice of Law

 

§2.94

Notices

 

§2.95

Severability

 

§2.96

Employee’s Representations

 

§2.97

Counterparts

 

§2.98

Successors and Assigns

 

§2.99

Attorney Fees

 

§2.100

Amendments

 

§2.101

No Third Party Rights

 

§2.102

Execution

CH03

Chapter 3

Independent Contractors, Leased Workers, and Outsourcing

03-067

§3.67

Sample Independent Contractor Data Sheet

03-068

§3.68

Sample Agreement Between Principal and Independent Contractor

CH04

Chapter 4

Immigration Law Requirements for Employers

04-031

§4.31

Checklist: Establishing Employment Practices that Comply with Immigration Laws

04-032

§4.32

Checklist: Identity and Employment Authorization Documents

CH06

Chapter 6

Vacations, Family and Medical Leave, and Other Time Off

06-010

§6.10

Checklist: Guidelines for Drafting Vacation Policy

06-017

§6.17

Checklist: Guidelines for Drafting Holiday Pay Policy

06-067

§6.67

Notice of Intent to Take Family or Medical Leave

06-098

§6.98

Form Notice: Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave

06-099

§6.99

Form Notice: Pregnancy Disability Leave

06-139

§6.139

Sample Policy for FMLA/CFRA Leave

06-139A

§6.139A

Sample Policy for Pregnancy Disability Leave

06-141

§6.141

Sample Policy for Personal Leave

06-142

§6.142

Sample Policy for Bereavement Leave

06-143

§6.143

Sample Policy for Leave for Spouses of Military Personnel

CH10

Chapter 10

Employee Handbooks

10-009

§10.9

Employee Handbook Receipt Acknowledgment

10-011

§10.11

Checklist: Potential Inclusions

10-014

§10.14

Equal Opportunity Employment Policy

10-016

§10.16

At-Will Employment Policy

10-018

§10.18

Introductory Period Policy

10-039

§10.39

Performance Standards; Misconduct, Discipline, and Termination

CH11

Chapter 11

Trade Secrets Protection and Unfair Competition

11-018

§11.18

Protective Language for Submissions

11-021

§11.21

Sample Offer or Hire Letter to New Employee

11-032

§11.32

Visitor Log-In

11-033

§11.33

Receipt Acknowledgment

11-034

§11.34

Confidentiality Legend

11-035

§11.35

Sample Approval of Information Release

11-036

§11.36

Notice for Facsimile Transmission

11-038A

§11.38A

Employee Termination Certificate

11-040

§11.40

Letter to Employee Confirming Exit Interview

11-041

§11.41

Letter to New Employer

11-041I

§11.41I

Company Policy for Use of Company Computers, Internet, E-Mail, and Personal or Cloud-Based Electronic Storage Devices

11-076

§11.76

Short Agreement for Protection of Proprietary Information

11-077

§§11.77–11.109

Introductory Provisions

 

§11.78

Definitions

 

§11.79

Duty of Trust and Confidentiality

 

§11.80

No Disclosure or Misappropriation of Proprietary Information

 

§11.81

Assignment of Proprietary Information and Inventions

 

§11.82

Proprietary Right Registrations; Execution of Necessary Documents

 

§11.83

Exception to Assignment of Inventions

 

§11.84

Disclosure of Inventions and Maintenance of Records

 

§11.85

Conflicting Employment or Business Opportunities

 

§11.86

Nonsolicitation of Employees

 

§11.87

Nonsolicitation of Customers

 

§11.88

Noncompetition

 

§11.89

Returning Company Documents and Other Tangible Items

 

§11.90

Reaffirmation of Obligations on Termination of Employment

 

§11.91

Notification to New Employer

 

§11.92

Representations and Warranties

 

§11.93

At-Will Employment

 

§11.94

Equitable Remedies

 

§11.95

Choice of Law

 

§11.96

Enforceability and Severability

 

§11.97

No Waiver

 

§11.98

Attorney Fees

 

§11.99

Amendment and Modification

 

§11.100

Entire Agreement

 

§11.101

Successors and Assigns

 

§11.102

Word Usage

 

§11.103

Exhibits

 

§11.104

Effective Date

 

§11.105

Conclusion

 

§11.106

Execution

 

§11.107

Exhibit A—California Labor Code §2870

 

§11.108

Exhibit B—Existing Inventions and Improvements

 

§11.109

Exhibit C—Termination Certificate

CH12

Chapter 12

Workplace Safety

12-093

§12.93

IIPP Compliance Checklist

12-105

§12.105

Notice to Employees of Right to SDSs

CH13

Chapter 13

Workplace Privacy

13-018

§13.18

Polygraph Consent Form

13-033

§13.33

Sample Computer/E-Mail Usage Policy

13-043

§13.43

Workplace Search Policy

13-066

§13.66

Sample Drug and Alcohol Policy

13-069

§13.69

Sample Consent to Drug and Alcohol Test

13-071

§13.71

Checklist: Questions to Consider Before Implementing Any Form of Employee Testing

13-085

§13.85

Sample Dress and Grooming Policy

13-087

§13.87

Sample Outside Employment Policy

13-089

§13.89

Sample Policy on Employment of Relatives

CH15

Chapter 15

Discrimination and Harassment

15-090A

§15.90A

Acknowledgment of Consensual Relationship

15-104

§15.104

Sample Policy Prohibiting Harassment

15-105

§15.105

Complaint for Harassment

15-107

§15.107

Checklist: Suggested Action Plan for Employer

CH16A

Chapter 16A

Workplace Investigations

16A-011A

§16A.11A

Checklist: Suggested Interview Procedures and Questions

CH17

Chapter 17

Discipline and Termination

17-067

§17.67

Sample At-Will Statement and “After-Acquired Evidence” Clause for Employment Application

17-069

§17.69

Offer Letter

17-071

§17.71

Sample At-Will Provision for Employment Agreement

17-091

§17.91

Discipline Checklist

17-093

§17.93

Termination Checklist

17-112

§17.112

Sample Settlement Agreement and Mutual Release

17-113

§17.113

Short Form Severance Agreement

CH18

Chapter 18

Reductions in Force and Plant Closings

18-008

§18.8

Release

18-019

§18.19

Checklist: RIF Guidelines for Minimizing Litigation Risk

18-039

§18.39

Notice to Employees or Representative re: Mass Layoff

18-040

§18.40

Notice to Chief Elected Government Official, State Dislocated Worker Unit, or Workforce Investment Board re: Mass Layoff

18-041

§18.41

Notice to Chief Elected Government Official or Dislocated Worker Unit re: Plant Closing/Termination or Relocation

CH19

Chapter 19

Insurance Coverage for Employment Claims

19-017

§19.17

Tender of Claim

CH20

Chapter 20

Mediation and Arbitration of Employment Disputes

20-007

§20.7

Checklist: Premediation Steps

20-020

§20.20

Sample Mediated Settlement Agreement

20-066

§20.66

Sample Mediation/Arbitration Clause for Employment Agreement

APP

Appendix

APPENDIX

APP

APP

Workplace Audit Checklist

 

Selected Developments

March 2017 Update

Chapter 1: Hiring Guidelines and Pitfalls

A new section has been added on the topic "Foreign Labor Contractors." See §1.6A.

Labor Code §432.7 has been amended to prohibit employers from requiring applicants to disclose, verbally or in writing, or from utilizing as a condition of employment, information concerning an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the applicant was subject to the process and jurisdiction of juvenile court law. See §§1.29, 13.10.

Chapter 2: Employment Contracts and Executive Compensation

Advances of commissions do not constitute wages. The essence of an advance is that at the time of payment, the employer cannot determine whether the commission will eventually be earned, because a condition to the employee's right to the commission has yet to occur (or the condition's occurrence is not currently ascertainable). Therefore, an advance, by definition, is not a wage because all conditions for performance have not been satisfied. Lindell v Synthes U.S. (ED Cal 2016) 155 F Supp 3d 1068. See §2.42.

The National Labor Relations Board (NLRB) continues to take the position that arbitration agreements barring class actions violate §7 of the National Labor Relations Act (NLRA) (29 USC §§151–169). See Price-Simms, Inc. (2015) 363 NLRB No. 52. The Ninth and Seventh Circuits have recently adopted the NLRB's rationale and have concluded that arbitration agreements barring class or collective actions do indeed violate the NLRA—thereby creating a split with earlier circuits' decisions on this issue. See Morris v Ernst & Young, LLP (9th Cir 2016) 834 F3d 975; Lewis v Epic Sys. Corp. (7th Cir 2016) 823 F3d 1147, 1155; Murphy Oil USA, Inc. v NLRB (5th Cir 2015) 808 F3d 1013. On January 13, 2017, the U.S. Supreme Court elected to hear Morris, Lewis, and Murphy Oil together, to settle the issue. See §§2.85, 5.93A.

Effective January 1, 2017, Lab C §925 prohibits an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California (in either litigation or arbitration) a claim arising in California, or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. See §§2.93, 11.54A, 20.22.

Chapter 3: Independent Contractors, Leased Workers, and Outsourcing

In Administrator's Interpretation No. 2016–1, the U.S. Department of Labor clarified that the concept of joint employment under the Fair Labor Standards Act (FLSA) (29 USC §§201–219) is notably broader than under the common law, due to the FLSA's expansive definition of "employ." See §3.42.

Employer consent is not required for a collective bargaining unit combining the employees solely employed by the contracting company and the employees jointly employed by that same contracting company and a leasing agency. See Miller & Anderson, Inc. (2016) 2016 NLRB Lexis 498 (overruling Oakwood Care Ctr. (2004) 343 NLRB 659). The NLRB applies the "community of interest" test to decide whether such collective bargaining units are appropriate. See §3.44.

The NLRB takes the position that two or more entities are joint employers of a single workforce if they share or codetermine those matters governing the essential terms and conditions of employment. Browning-Ferris Indust. of Cal., Inc. (Aug. 27, 2015, No. 32-RC-109684) 2015 NLRB Lexis 672. See §3.44.

Chapter 4: Immigration Law Compliance for Employers

In November 2016, USCIS published a revised version of Form I-9, marked "11/14/2016 N." Starting January 22, 2017, employers must use only this new version of the form. The revised Form I-9 contains electronic enhancements, including hover-over instructions and drop-down lists from which List A, B, and C documents can be selected based on the employee's citizenship/immigration status. It is optimized for electronic completion. The form is available at http://www.uscis.gov/i-94. See §4.12.

Fines for immigration hiring violations have been increased. See §4.23.

So have the fines for paperwork violations. See §4.24.

The fine for violating Labor Condition Application (LCA) recordkeeping requirements has also increased. See §4.39.

Effective January 1, 2017, Lab C §1019.1 broadened the protections from "unfair immigration-related practices" beyond the retaliation context and extended them to any employee or applicant regardless of whether they have made a complaint. The statute states that it is unlawful for an employer, in the course of satisfying federal law requirements for eligibility determinations (8 USC §1324(b)) to: (1) request more or different documents than required under federal law to verify eligibility; (2) refuse to honor documents that on their face reasonably appear to be genuine; (3) refuse to honor documents or work authorization based on the specific status or term of status that accompanies the authorization to work; or (4) attempt to reinvestigate or re-verify an incumbent employee's authorization to work using an "unfair immigration practice" (defined in Lab C §1019). Labor Code §1091.1 also authorizes an employee or applicant (or their representative) to file a complaint with the Division of Labor Standards Enforcement, and authorizes the Labor Commissioner to award a penalty up to $10,000 and equitable relief. See new §4.30A.

Chapter 5: Wage and Hour Laws

Employees working on oil platforms in the Santa Barbara Channel, which are subject to the Outer Continental Shelf Lands Act (43 USC §§1331–1356b), are subject to the FLSA, but not to California's wage and hour laws. Williams v Brinderson Constructors, Inc. (CD Cal, Aug. 11, 2015, No. CV 15–2474-MWF (AGRx)) 2015 US Dist Lexis 105511. See §5.1.

As a result of the passage in 2016 of Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, employees engaged in the cultivation of marijuana are subject to Wage Order No. 4–2001. Bus & P C §26065; Bus & P C §19333. See §5.3.

Narrow distinctions may determine which Wage Order applies to a job or occupation. See Bains v Department of Indus. Relations (2016) 244 CA4th 1120 (employees harvesting prunes from trees, loading them in containers and/or vehicles, and transporting them to where they will be processed are covered by Wage Order No. 14–2001, while employees processing and packing prunes in fixed drying sheds located next to orchard are subject to Wage Order No. 13–2001). See §5.3.

In Administrator's Interpretation No. 2016–1, the Department of Labor (DOL) announced an expanded joint employer test that the agency now applies under the FLSA and the Migrant and Seasonal Agricultural Worker Protection Act (29 USC §§1801–1872). See §5.4A.

As of January 1, 2017, an employer may not require an employee who primarily resides and works in California to agree to either of the following conditions:

  • Require the employee to adjudicate outside of California a claim arising in California (Lab C §925(a)(1)); or

  • Deprive the employee of the substantive protection of California law with respect to a controversy arising in California (Lab C §925(a)(2)).

Any contract provision that has either condition is voidable by the employee, and an employee that is enforcing his or her rights is entitled to an award of attorney's fees, injunctive relief, and other remedies as a court or an arbitrator may order. Lab C §925(b)–(d). However, these restrictions on choice of law and choice of forum do not apply to a contract with an employee that is individually represented by legal counsel in negotiating its terms. Lab C §925(e). See §5.13B.

An employer that withholds wages in violation of Lab C §212 is subject to a civil penalty, for each failure to pay an employee, of $100 for any initial violation and $200 plus 25 percent of the amount withheld for each subsequent violation or any willful or intentional violation. Lab C §225.5. These civil penalties are limited to violations of Lab C §212 that result in the withholding of wages. For these purposes, a fee for cashing a check or a hold placed on a check can be considered the "withholding of wages." Solis v Regis Corp. (ND Cal 2007) 612 F Supp 2d 1085, 1088. See §5.14A.

Employers must furnish each employee at the time wages are paid with an itemized written statement, showing nine items of information (Lab C §226(a)(1)–(9)), including "gross wages earned." In Soto v Motel 6 Operating, L.P. (2016) 4 CA5th 385, the court held that "gross wages earned" does not include value of accrued but unpaid vacation time. See §5.14B.

The itemized wage statement also must also include the total hours worked by each employee, with some exceptions. Effective January 1, 2017, those exceptions (see Lab C §226(j)) were expanded to include employees who are paid solely on salary, salespersons paid on commission, high-ranking executives partially compensated with stock options, and others who are exempt from payment of the minimum wage or overtime. See §5.14B.

Employees who voluntarily quit employment generally must be paid on their last day of work; however, an employee who does not give prior notice must be paid within 72 hours after his or her last day of work. Lab C §202. In McLean v State of Cal. (2016) 1 C5th 615, the court held that Lab C §202 also applies to employees who retire, just as it does to those who voluntarily quit for other reasons. See §5.16.

The California minimum wage will increase from $10.00 per hour to $15.00 per hour between January 1, 2017 and January 1, 2023, depending on the size of the employer's workforce. See §5.17.

In American Hotel & Lodging Ass'n v City of Los Angeles (9th Cir 2016) 834 F3d 958, the Ninth Circuit held that the NLRA does not preempt a city's minimum wage ordinance, even though it includes a collective bargaining opt-out provision. See §5.17.

Employees that are paid solely by commission must be compensated separately for no less than the minimum wage when they are performing tasks unrelated to sales. Vaquero v Ashley Furniture Indus. (9th Cir 2016) 824 F3d 1150. See §5.17.

As of January 1, 2017, the minimum wage for employees of federal contractors and subcontractors is $10.20 per hour, which will be adjusted for inflation on each subsequent January 1. 29 CFR §10.5. See §5.19.

In Schaefer v Walker Bros. Enters., Inc. (7th Cir 2016) 829 F3d 551, the Seventh Circuit held that restaurant servers who spent 10 to 45 minutes daily performing tasks such as making coffee, washing and slicing fruit, filling ice buckets, restocking bread bins, replenishing supplies, and performing various cleaning tasks were not entitled to the full minimum wage for that time, because such duties were "related" to tipped work. See §5.19.

Mandatory service charges—for example, for banquet or room service meals—are not considered tips and may be credited against the employer's minimum wage obligations. The Fourth Circuit has held that an employer must satisfy at least two requirements to credit "service charges" toward the minimum-wage obligation: (1) the service charge "must have been included in the establishment's gross receipts," and (2) it must have been "distributed by the employer to its employees." McFeeley v Jackson Street Entertainment, LLC (4th Cir 2016) 825 F3d 235, 246. See §5.20.

Meal and lodging credits against the minimum wage have been updated. See §5.21.

Daily overtime is determined based on the number of hours worked by an employee in a workday, which may be different than the number of hours in an employee's shift that spans two workdays. See Henry v Home Depot U.SA., Inc. (ND Cal, Jan. 4, 2016, No. 14-cv-04858-JST) 2016 US Dist Lexis 792; §5.24.

The hourly rate of pay for an employee employed solely at a single hourly rate is the employee's "regular rate." In determining whether to include an amount in the calculation of the regular rate, courts look to "whether the payment at issue is generally understood as compensation to the employee, not whether the payment is tied to specific hours worked by the employee." Flores v City of San Gabriel (9th Cir 2016) 824 F3d 890, 899. In Flores, the Ninth Circuit found that the employer's payment of cash-in-lieu of benefits had to be included in the employee's regular rate, because it was similar to an attendance bonus. See §5.27.

Over the course of a 4-year period commencing January 1, 2019, agricultural employees will receive on a phased-in basis the same rights to daily and weekly overtime as most other California employees. See §5.42.

Following up on last year's amendments to California's Equal Pay Act (Lab C §1197.5) regarding gender-related wage differentials, the Wage Equality Act of 2016 (SB 1063) enacts nearly identical language to preclude wage differentials based on race or ethnicity. For these and other changes, see §5.42A.

In Oregon Restaurants & Lodging v Perez (2016) 816 F3d 1080, the court upheld the DOL's 2011 amendments to 29 CFR §§531.52, 531.54, 531.59, which prohibit employers, regardless of whether they take a tip credit, from requiring customarily tipped employees to participate in a tip pool that includes customarily nontipped employees. The court found that Cumbie v Woody Woo, Inc. (9th Cir 2010) 596 F3d 577 does not foreclose the DOL's ability to regulate tip pooling practices of employers who do not take a tip credit. See §5.44.

In Watterson v Garfield Beach CVS LLC (ND Cal 2015) 120 F Supp 3d 1003, the court held that an employee who voluntarily enrolled in her employer's health insurance plan was not entitled to compensation for time spent completing an annual health screening and online wellness review in order to avoid paying a $50 per month increase in her medical premium. The court found that the employee was not subject to the employer's control because she was not required to enroll in the plan. The court also rejected the employee's argument that the employer was the primary beneficiary of her participation in the annual screening and wellness review. See §5.45.

In Tyson Foods, Inc. v Bouaphakeo (2016) 577 US __, 136 S Ct 103, the Supreme Court held that liability and damages for uncompensated time spent donning and doffing required gear could be determined by statistical techniques when the employer failed to keep records of the time spent on those activities. The Court permitted evidence of an industrial relations expert's determination of the average time it took employees to don and doff the gear based on analysis of 744 videotaped observations of the employees' activities. See §5.47.

In Scott-George v PVH Corp. (ED Cal, Jul. 22, 2016, No. 2:13–cv–0441–TLN–AC) 2016 US Dist. Lexis 96208, the court dismissed a claim under California law brought by employees who alleged they were not compensated for the time during which they were subjected to a security inspection of their purses and bags. The court held the employees failed to show that the checks were a mandatory activity. They could choose not to bring a bag, purse, or the like to work. See §5.47.

In Rodriguez v E.M.E., Inc. (2016) 246 CA4th 1027, the court reversed summary adjudication in favor of an employer who had combined two 10-minute employee rest periods into one 20-minute rest period per 8-hour shift. The court held that a departure by an employer from "the preferred schedule" is permissible only when the departure (1) will not unduly affect employee welfare, and (2) is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule. See §5.48.

In Driscoll v Graniterock Co. (2016) 6 CA5th 215, the employer was found to have complied with the obligation to provide its concrete mixer drivers an off-duty meal period each day by informing the drivers of their right to a meal period and making a meal period available to drivers who requested one. The employer provided employees with a legally compliant employee handbook that contained information about the availability and right to a 30-minute off-duty meal period, the drivers acknowledged they had reviewed the policy, and the employer posted the applicable wage order. There was no evidence that any driver was ever denied an off-duty meal period when he or she requested it. Although the nature of the concrete mixing and delivery industry precludes scheduling off-duty meal periods in advance—the timing of a meal period is dependent on the state of the concrete in the driver's truck and the requirements of a construction job to which he or she is attending—"an employer is not required to schedule meal periods." See §5.48.

In Corbin v Time Warner Entertainment-Advance/Newhouse Partnership (9th Cir 2016) 821 F3d 1069, 1075, the court of appeals upheld the employer's policy of rounding time to the nearest quarter hour, which the court found to be consistent with 29 CFR §785.48(b). See §5.54C.

Also in Corbin, the court of appeals rejected an employee's claim for 1 minute of off-the-clock work on a single occasion, given that it was de minimis. The employer had not pleaded de minimis as an affirmative defense, but the court held that an employer is not required to plead the doctrine as an affirmative defense. See §5.54D.

In Boyd v Bank of Am. Corp. (CD Cal 2015) 109 F Supp 3d 1273, 1286, the federal district court held that real estate appraisers were not administratively exempt because their work did not directly relate to management policies or general business operations. See §5.58. Nor did they meet the professional exemption, because their work did not fall into a field of science or learning requiring a specialized course of study. See §5.59.

Hourly and salary exemption amounts have been updated to reflect 2017 requirements. See §§5.59–5.60.

Private school teachers of students enrolled in kindergarten through grade 12 are exempt from overtime, provided that, as of July 1, 2017, the teacher must earn the greater of:

  • 100 percent of the lowest salary offered by any school district to a credentialed teacher (and not someone employed in that position pursuant to an emergency permit, intern permit, or waiver); or

  • 70 percent of the lowest schedule salary offered to a credentialed teacher (and not someone employed pursuant to an emergency permit, intern permit, or waiver) by the school district or county in which the private school is located.

See §5.61B.

On May 23, 2016, the DOL announced an increase in the minimum salary to $913 per week, or $47,476 per year, beginning December 1, 2016. The new minimum salary also included automatic updates beginning January 1, 2020 and every three years thereafter. However, on November 22, 2016, in Nevada v United States Dep't of Labor (ED Tex, Nov. 22, 2016, No. 4:16-CV-00731) 2016 US Dist Lexis 162048, the court enjoined implementation of this change. The court held that the DOL exceeded its delegated authority and that the increase was not based on a permissible construction of the applicable statute. The DOL has filed an appeal with the Fifth Circuit. See §5.62.

Police, fire fighters, and similar employees, regardless of rank or pay level, that primarily perform traditional first-responder duties will not qualify as exempt executive employees. 29 CFR §541.3(b). Morrison v County of Fairfax, Va. (4th Cir 2016) 826 F3d 758. See §§5.65, 5.70.

In Lutz v Huntington Nat'l Bank (6th Cir 2016) 815 F3d 988, the Sixth Circuit held that residential-loan underwriters are administratively exempt employees, because their job duties relate to the general business operations of the bank, and they exercise discretion and independent judgment when performing those duties. See §5.71.

In Encino Motorcars, LLC v Navarro (2016) 579 US ___, 136 S Ct 2117, the Supreme Court held that the DOL failed to provide a reasoned explanation for its 2011 change in position that service advisors, who evaluate car repair needs and solicit supplemental repair services, are not exempt from FLSA overtime requirements. See §5.80.

In Torres v Wells Fargo Bank, N.A. (CD Cal, Oct. 12, 2016, No. ED CV 15-2225 PSG (KKx)) 2016 US Dist Lexis 163159, the district court held that the employer lawfully included in its incentive compensation plan for home mortgage consultants a deduction for third-party fees, including credit report and appraisal fees, that the consultants failed to collect on loans that were not closed due to cancellation or denial. See §5.89C.

A new section has been added on the topic, "Employer-Provided Training Costs." See §5.89E.

In Kilby v CVS Pharmacy, Inc. (2016) 63 C4th 1, the California Supreme Court provided some long-awaited guidance on the "suitable seating" requirement. See §5.89G.

By January 1, 2019, the Division of Occupational Safety and Health is required to propose to the Occupational Safety and Health Standards Board, for the board's review and adoption, a standard that minimizes heat-related illness and injury among employees working in indoor places of employment. Lab C §6720 (amended). See §5.89H.

In Ramos v Garcia (2016) 248 CA4th 778, an employee-manager who was mistakenly named in a wage and hour action as a coemployer—when he was actually a coemployee—was not entitled to an award of attorney fees under Lab C §§218.5 or 1194(a), because he was not a prevailing employee-plaintiff (he was a defendant), and the lawsuit was not brought in bad faith. See §5.92.

When an arbitration agreement clearly and unmistakably delegates all authority to the arbitrator, a court may not decide whether the agreement is enforceable, except as to claims under the Private Attorneys General Act of 2004 (PAGA) (Lab C §§2698–2699.5). Mohamed v Uber Techs., Inc. (9th Cir 2016) 836 F3d 1102. See §5.93A.

When an agreement is ambiguous on the issue of whether class arbitration is available, the question must be determined by the arbitrator in the first instance. Nguyen v Applied Med. Resources Corp. (2016) 4 CA5th 232 (trial court should not have dismissed class claims, but should allow arbitrator to decide whether arbitration clause permits arbitration on class basis). See §5.93A.

Regarding legal fees for class counsel, the court may use a percentage method for its calculation of the fee award after careful consideration of information about contingency, novelty, and difficulty, together with an assessment of the skill of class counsel, number of hours worked, and the asserted hourly rates. It is within the trial court's discretion to determine whether to cross-check the reasonableness of the percentage fee through a lodestar calculation. Laffitte v Robert Half Int'l, Inc. (2016) 1 C5th 480 (approving fee award of one-third of $19 million class settlement over objection of one class member). See §5.93B.

Amendments to PAGA by SB 836 (Stats 2016, ch 31), effective June 27, 2016, modify some of its filing, processing, and settlement procedures. The following are some highlights of those amendments, which apply prospectively to all pending PAGA cases, as well as new filings:

  • All new PAGA claim notices must be filed online, with a copy sent by certified mail to the employer;

  • All employer cure notices or other responses to a PAGA claim must be filed online, with a copy sent by certified mail to the aggrieved employee or aggrieved employee's representative;

  • A filing fee of $75 is required for a new PAGA claim notice and any initial employer response (cure or other response) to a new PAGA claim notice;

  • The time for the Labor and Workforce Development Agency (LWDA) to review a notice under Lab C §2699.3(a) has been extended from 30 to 60 days;

  • When filing a new PAGA lawsuit in court, a filed-stamped copy of the complaint must be provided to the LWDA (applies only to cases in which the initial PAGA claim notice was filed on or after July 1, 2016);

  • Any settlement of a PAGA action must be approved by the court, whether or not the settlement includes an award of PAGA penalties. A copy of a proposed settlement must be provided to the LWDA at the same time that it is submitted to the court; and

  • A copy of the court's judgment and any other order that awards or denies PAGA penalties must be provided to the LWDA.

See §§5.97–5.99.

An employer may not require an employee to individually arbitrate whether he or she is an "aggrieved employee" within the meaning of PAGA, while preserving its right to a judicial forum for all other aspects of the claim. Perez v U-Haul Co. of Cal. (2016) 3 CA5th 408. See §5.97.

In Rosenfield v GlobalTranz Enters., Inc. (9th Cir 2015) 811 F3d 282, the court held that a complaining employee's position as a manager for the employer was an important part of the "context" that the fact-finder must consider when evaluating a retaliation claim. A reasonable employer would view many actions taken by a non-managerial employee differently than the same actions taken by a manager. See §5.103.

In Genesis Healthcare Corp. v Symczyk (2013) 569 US ___, 133 S Ct 1523, the Supreme Court held that an FLSA plaintiff that disregarded her employer's offer of judgment under Fed R Civ P 68, which she admitted mooted her individual claim, had no continuing interest in the case. Therefore, the employee's suit was appropriately dismissed for lack of subject-matter jurisdiction. However, the Court subsequently held that an unaccepted settlement offer, even an offer of judgment under Fed R Civ P 68, to satisfy the named plaintiff's individual claim does not render a case moot. Campbell-Ewald Co. v Gomez (2016) 577 US __, 136 S Ct 663. See §5.106A.

Chapter 6: Vacations, Family and Medical Leave, and Other Time Off

Several cities have adopted their own paid sick leave policies, which may in some instances provide greater benefits for employees than those available under the Healthy Workplaces, Healthy Families Act of 2014. Among those cities: Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica. See §6.11.

Effective January 1, 2017, an employer having 25 or more employees must inform each new employee of his or her right to take protected time off because of domestic violence, sexual assault, or stalking. New employees must be informed of this right on hire, and current employees on request. The Labor Commissioner is tasked with developing a form for this purpose on or before July 1, 2017, and employers are not required to comply with this rule until the Labor Commissioner has posted the model form on the DLSE's website (http://www.dir.ca.gov/dlse/DLSE-Forms.htm). Lab C §230.1(h)(1)–(3). See §6.137.

Chapter 7: Tax Compliance

Assembly Bill 1775 changed the due date to file certain business entity tax returns to conform to the federal due dates. For taxable years beginning on or after January 1, 2016, California conforms to the due dates for foreign partnerships and limited liability companies (LLC) to file information returns to report nonwage withholding. Although the information return file date changed, the payment due date remains the same. See §7.88.

Chapter 8: Unemployment Compensation and State Disability Insurance

Effective January 1, 2017, an employer with ten or more employees must file required reports of contributions, quarterly returns, reports of wages paid, and annual reconciliation returns with the EDD electronically, and remit all contributions for unemployment insurance premiums by electronic funds transfer. Beginning January 1, 2018, these requirements will extend to all employers. See §8.33.

A new section has been added on the topic, "Attachment of Unemployment Benefits for Child Support." See §8.139A.

For periods of disability beginning on and after January 1, 2018, but before January 1, 2022, the formula for determining an employee's weekly benefit amount has been revised, providing a weekly benefit amount minimum of $50 and increasing the wage replacement rate in the statutory table. See §8.179.

California's disability insurance program includes a paid family leave benefit, under which employees are eligible for family temporary disability insurance for up to 6 weeks in order to care for a seriously ill family member, bond with a child within 1 year of the child's birth, or bond with a new foster or adopted child. An employee making a claim for family temporary disability insurance benefits must submit a medical certificate establishing eligibility. Currently, there is a 7-day waiting period before benefits are paid. Effective January 1, 2018, the 7-day waiting period requirement is eliminated. Un Ins C §3303(b). See §8.179.

Chapter 9: Notice-Posting, Training, and Recordkeeping Requirements

The Legislature has enacted AB 1978, the Property Service Workers Protection Act (Lab C §§1420–1434). This law contains numerous measures to protect janitorial industry employees from sexual assault. See §9.61A.

A new section covering the recordkeeping requirements of employers subject to the Property Service Workers Protection Act has been added. See §9.73B.

Although Lab C §226 requires employers to provide written wage statements containing specifically-enumerated information, including identifying the total hours worked, it contains an exception from reporting the total hours worked of employees who are paid solely on salary and are exempt from overtime. Effective January 1, 2017, Lab C §226(j) eliminates the need to show hours worked for employees exempt from minimum wage and overtime under several specified exemptions. See §9.70.

All employers are required to maintain, for 3 years, records of the wages and wage rates, job classifications, and other terms and conditions of employment for all employees. One purpose of this requirement is to help show that disparities in pay based on gender, race, or ethnicity do or do not exist in the employer's workplace. Lab C §1197.5(d). See §9.90.

Chapter 10: Employee Handbooks

The "Employee Handbook Receipt Acknowledgment" in §10.9 has been modified.

The "Introductory Period Policy" in §10.18 has been modified.

Amended FEHA regulations that took effect April 1, 2016 expressly require employers to adopt and disseminate a written discriminati, harassment, and retaliation prevention policy that, among other things: lists all protected categories; makes clear that the law prohibits coworkers, third parties, supervisors, and managers from engaging in discrimination, harassment, or retaliation; provides a complaint process and prohibits retaliation for making a complaint or participating in an investigation. 2 Cal Code Regs §11023. See §10.19.

Although courts have upheld arbitration provisions included in employee handbooks, others have rejected this approach. See Serpa v California Sur. Investigations, Inc. (2013) 215 CA4th 695 (upholding arbitration provision contained in employee handbook); compare Esparza v Sand & Sea, Inc. (2016) 2 CA5th 781 (arbitration provision in employee handbook not enforceable because (1) handbook stated it was not intended to establish an agreement; (2) policy acknowledgement signed by employee did not express agreement to the arbitration provision; and (3) acknowledgment stated that employee had not yet read handbook). See §10.21.

Federal labor law protects the rights of employees to discuss their wages, hours, and working conditions. See, e.g., Battle's Transp., Inc. (2015) 362 NLRB 17 (provision in employer's confidentiality agreement that barred employees from discussing "human resources related information" and "investigations by outside agencies" ordered rescinded, because it could reasonably be construed to restrict discussion regarding terms and conditions of employment). See §10.23.

The form "Performance Standards; Misconduct, Discipline, and Termination" in §10.39 has been modified.

Smoking has been illegal in enclosed workplaces in California since 1997, with a few minor exceptions. Effective June 9, 2016, most of those exceptions have been eliminated. The smoking ban now extends to owner-operated businesses, hotel lobbies, banquet rooms, warehouse facilities, and employee break rooms. See Lab C §6404.5(e); §§10.45, 12.115–12.117.

Chapter 11: Trade Secrets Protection and Unfair Competition

The existence of the Defend Trade Secrets Act (DTSA) (Pub L 114–153, 130 Stat 376) does not preempt or preclude a companion trade secret misappropriation claim under a state-law version of the Uniform Trade Secrets Act (UTSA). Allstate Ins. Co. v Rote (D Or, Aug. 7, 2016, No. 3:16-cv-01432-HZ) 2016 US Dist Lexis 2016 104374. See §11.1A for a summary of the DTSA's essential features.

Basically, the DTSA uses the same statutory definition of "trade secret misappropriation," and applies the same analysis, as under the existing California version of the UTSA. Henry Schein, Inc. v Cook (ND Cal, June 22, 2016, No. 16-cv-03166-JST) 2016 US Dist Lexis 81369. See §11.1A.

In Henry Schein, Inc. v Cook (ND Cal, June 22, 2016, No. 16-cv-03166-JST) 2016 US Dist Lexis 81369, the court held that certain customer information developed and maintained through a proprietary software program, which included buying patterns and marketing and pricing strategies, were protectable trade secrets under both the UTSA and DTSA. See §11.5.

California courts have refused to adopt the "inevitable disclosure" doctrine because the state has a strong public policy favoring mobility of its workforce and because it would conflict with the prohibition against covenants not to compete under Bus & P C §16600. See Cypress Semiconductor Corp. v Maxim Integrated Prods., Inc. (2015) 236 CA4th 243, 264. Additionally, under the newly enacted federal DTSA, the inevitable disclosure doctrine has been rejected. See 18 USC §1836(b)(3)(A)(i). See §11.10.

The form "Sample Offer or Hire Letter to New Employee" has been modified. See §11.21.

Employees can be careless when discussing their departure or competition plans, often communicating through their employer's e-mail system. This has been a fertile area for recovery of damaging evidence against former employees. Also, a waiver of attorney-client protections may occur if the employee communicates to his or her outside counsel through his former employer's e-mail or computer network. See Tatung Co. v Shu Tze Hsu (CD Cal, Feb. 19, 2016, No. SACV 13-1743-DOC (ANx)) 2016 US Dist Lexis 22012; §11.41C.

Recent cases in the criminal and 4th Amendment context have held that people do not have a reasonable expectation of privacy in public peer-to-peer digital file-sharing network records, cell-tower or site records, records showing "to/from" e-mail addresses, or records of the IP addresses of websites they have visited. See People v Evensen (2016) 4 CA5th 1020; U.S. v Forrester (9th Cir 2008) 512 F3d 500, 510; U.S. v Elima (CD Cal, June 22, 2016, No. SACR 16-00037-CJC) 2016 US Dist Lexis 87588. See §11.41C.

The recently enacted federal DTSA contains provisions similar to those in the UTSA regarding when attorney fees may be awarded to a successful plaintiff/employer (upon a showing for "willful" misappropriation), or to a defendant (when the evidence establishes the claim was brought or maintained by the plaintiff in "bad faith"). One distinction, however, is that a plaintiff may be immune from attorney fees under the DTSA unless the employer has given prior written notice to the employee of his or her right to disclose trade secrets of an employer to federal, state, or local government officials, or to an attorney, in connection with legitimate "whistleblowing" activities to report, or cause to be investigated, a suspected violation of law. See 18 USC §1833(b); §11.42A.

Currently, the law regarding enforceability of arbitration provisions in employment agreements is in a state of flux. A recent California Supreme Court decision rejected certain "unconscionability" challenges raised by employees to the enforceability of their employment arbitration contracts. See Baltazar v Forever 21, Inc. (2016) 62 C4th 1237. See also Nguyen v Applied Med. Resources Corp. (2016) 4 CA5th 232; Tompkins v 23andMe, Inc. (9th Cir 2016) 840 F3d 1016; Ali v J.P. Morgan Chase Bank, N.A. (9th Cir. 2016) 647 Fed Appx 783, 785. Prior to Baltazar, the trend had been to find them unenforceable on grounds of procedural or substantive unconscionability (or both). See §11.42E.

However, arbitration agreements that contain forum selection clauses requiring an individual party to arbitrate disputes in a foreign state or distant forum, allow one party to unilaterally select the arbitrator, limits remedies, or contain a shortened limitations period, have been found to be substantively unconscionable. Magno v College Network, Inc. (2016) 1 CA5th 277, 288; Penilla v Westmont Corp. (2016) 3 CA5th 205, 214; but see Britvan v Cantor Fitzgerald, L.P. (CD Cal, July 18, 2016, No. 2:16-cv-04075-ODW (JPRx)) 2016 US Dist Lexis 93184 (upholding validity of New York forum selection clause where at time employment arbitration agreement was signed, both parties were based in New York, and terms of employment were originally to be performed in New York). See §11.42E.

In Center for Auto Safety v Chrysler Group, LLC (9th Cir 2016) 809 F3d 1092, 1096, the Ninth Circuit adopted a rule about sealing procedures in certain trade secrets cases. See §11.44A.

Even an unintentional failure to conduct an adequate search for electronically stored digital information (ESI) in discovery can lead to significant sanctions. In Rodman v Safeway Inc. (ND Cal, Oct. 4, 2016, No. 11-cv-030030-JST) 2016 US Dist Lexis 137988, the plaintiff was awarded over $688,000 in discovery sanctions when Safeway's counsel did not meet its obligation to conduct, with the client's assistance, a reasonable search for relevant and responsive ESI that had been requested in discovery. Counsel negligently relied on the client's marketing director (not its IT people or a reputable outside forensic computer consultant) to do the initial ESI searches. See §11.46A.

Labor Code §2802 requires an employer "to indemnify an employee for all expenses and losses incurred in direct consequence of the discharge of his duties," but only those expenditures or losses an employee must "necessarily incur." USS-POSCO Indus. v Case (2016) 244 CA4th 197, 205. See §11.47A.

California courts expressly recognize the "preemptive" litigation strategy by former employees and their new employers in bringing claims for statutory unfair competition under Bus & P C §17200 or declaratory relief under CCP §1060 to challenge unenforceable noncompete clauses in their employment agreements. See, e.g., Robinson v U-Haul Co. of Cal. (2016) 4 CA5th 304 (court granted permanent injunction barring company's enforcement of covenant not to compete under UCL in independent dealer agreements). See generally §11.62.

In Couch v Morgan Stanley & Co. (CD Cal, Aug. 7, 2015, No. 1:14-cv-10-LJO-JLT) 2015 US Dist Lexis 104021, aff'd (9th Cir 2016) 656 Fed Appx 841, the court held that simply inserting an unenforceable noncompetition provision in an employment agreement (without even attempting to enforce it) could not only give rise to an unlawful competition claim under Bus & P C §17200, it might also support a tortious interference with prospective economic advantage claim by the employee. See §11.52.

In Gulaid v CH2M Hill, Inc. (ND Cal, March 10, 2016, No. 15-cv-04824-JST) 2016 US Lexis 31906, the court held that FEHA only applies to California-based conduct. See §11.52.

New sections on Choice of Law, Forum Selection, or Contractual Arbitration Clauses have been added to chap 11. See §§11.54A–11.55B.

In Pinela v Neiman Marcus Group, Inc. (2015) 238 CA4th 227, the court invalidated a Texas choice of law clause in an arbitration agreement when the plaintiff was a California-based employee suing his Texas-based employer for violation of California wage and hour laws. See §§11.55, 11.55B.

In Verdugo v Alliantgroup, L.P. (2015) 237 CA4th 141, the court invalidated on public policy grounds both the Texas forum selection and choice of law clauses inserted in an employment agreement by the employer to avoid California wage and hour laws; the employee was a California-based resident and worker. See §11.55.

Where a forum selection clause is found to be "permissive" rather than "mandatory," the majority of courts, after Atlantic Marine Const. Co. v U.S. District Court for W. Dist. of Texas (2013) 571 US ___, 134 S Ct 568, have applied the traditional forum non-conveniens test, which analyzes both private and public interest factors. See Carl's Jr. Restaurants LLC v 6Points Food Servs., Ltd. (CD Cal, July 7, 2016, No. CV 15-9827-GHL (ASx)) 2016 US Dist Lexis 88248; §11.55A.

In Robinson v U-Haul Co. of Cal. (2016) 4 CA5th 304, the court of appeal upheld the trial court's permanent injunction barring the company's enforcement of an unlawful covenant not to compete under the UCL, despite the company's position that it no longer intended to enforce the covenant in its independent dealer agreements. See §11.62.

A defendant who has an "economic interest" in a specific contract, but is not a party to that contract, still may be held liable for tortiously interfering with it. Popescu v Apple Inc. (2016) 1 CA5th 39; see §11.66.

In 2016, the Ninth Circuit issued its second decision in U.S. v Nosal (9th Cir, Dec. 8, 2016, Nos. 14-10037, 14-10275) 2016 US App Lexis 21868 (Nosal II). Nosal II distilled two general rules in analyzing "authorization" under the Computer Fraud and Abuse Act (CFAA) (18 USC §1030 ). First, a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly. Once permission has been revoked, technological gamesmanship or the enlisting of a third party to aid in access will not excuse liability. Second, a violation of the terms of use of a website—without more—cannot be the basis for liability under the CFAA. See §11.74.

The form "Short Agreement for Protection of Proprietary Information" in §11.76 has been modified.

The form "Definitions" in §11.78 has been modified.

The form "Duty of Trust and Confidentiality" in §11.79 has been modified.

The form "No Disclosure or Misappropriation of Proprietary Information" in §11.80 has been modified.

The form "Conflicting Employment or Business Opportunities" in §11.85 has been modified.

The form "Nonsolicitation of Employees" in §11.86 has been modified.

The form "Returning Company Documents and Other Tangible Items" in §11.89 has been modified.

Chapter 12: Workplace Safety

DOSH's list of high hazard industries for FY 2016–2017 shows an increase of over 100 percent. Although 12 industries were removed from the list, 35 were added. Employers in these industries, regardless of their own safety records, are subject to a heightened potential for inspection. See §12.1A.

In McCarthy Bldg. Cos., Inc. (Jan. 11, 2016) OSHAB 11-1706 and 2046 DAR, the Board upheld a due diligence defense where the controlling employer demonstrated that it had a full-time safety supervisor on the work site who spent 70 percent of his day walking the job. In addition, other supervisors on site were also responsible for watching their areas of responsibility for hazards; the controlling employer provided safety training to all employees on site and enforced a system of sanctions for violations of safety rules; and the violative condition was not readily visible to passers-by. See §12.37B.

Effective January 1, 2017, the criteria for citing OSHA violations as "repeat" will change dramatically. The "look back" period will increase from 3 years to 5, and the clock will begin running when the initial citation becomes final, not when the violation occurred. The geographic scope of the "look back" will also expand; rather than the current restriction of violations occurring in the same Cal/OSHA region, the "look back" will include the entire state. See §12:39.

The rules concerning the timing and calculation of abatement credits for citations classified as serious and serious (accident-related) changed dramatically with the amendment of Lab C §6320. This has caused a great deal of confusion. See §§12.55, 12.57.

The California Occupational Safety and Health Appeals Board (Board) has gone digital. The preferred method of filing an appeal is by filling out electronic forms at the Board's website. See https://caldir-production-portal.ecourt.com/public-portal/. Telephonic notice of an intent to appeal is still available and initial appeal papers can be filed by mail, but the Board will create an electronic file from the hard copy filings. Thereafter, all communications between the Board and the parties to an appeal will be by e-mail and the Internet. See §12.62.

A new section has been added discussing the expedited hearing process for certain OSHA violations. See §12.63A.

A new section has been added discussing the "logical time not yet reached" defense to an OSHA citation. See §12.75A.

A new section has been added discussing workplace violence prevention in healthcare. See §12.118A.

Chapter 16: Whistleblower Issues

In Rosenfield v Globaltranz Enters. (9th Cir 2015) 811 F3d 282, the court held that a reasonable jury could find the employee's advocacy reached the requisite degree of formality to constitute protected activity under 29 USC §215(a)(3) where the employee complained orally to management on at least eight occasions that the company was not in compliance with the FLSA. See §16.2.

The "opt-out" provision of the Energy Reorganization Act (42 USC §5851(b)(4)) empowers whistleblowing employees at nuclear energy sites to bring antiretaliation claims to federal court after 1 year of agency inaction. With regard to the issue of administrative exhaustion, before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, the respondent must have had notice of, and an opportunity to participate in, the agency action for 1 year. As a general rule, adding a new respondent to an administrative complaint restarts the 1-year exhaustion clock as to that person. See Tamosaitis v URS Inc. (9th Cir 2015) 781 F3d 468; §16.9A.

Chapter 16A: Workplace Investigations

In City of Petaluma v Superior Court (Waters) (2016) 248 CA4th 1023, the court held that an investigation report prepared by outside counsel need not contain legal advice to protect the report from having to be produced in litigation, as long as counsel provided "legal services … in anticipation of litigation." See §16A.5.

Chapter 17: Discipline and Termination

The United Supreme Court held in Green v Brennan (2016) ___ US ___, 136 S Ct 1769, 1776 that the running of the limitations period for a constructive discharge claim under Title VII begins on the date that the employee provides the employer with "definite notice of his intent to resign," rather than at the time of the employer's last discriminatory act giving rise to the resignation. See §17.33A.

In claims involving work-related injuries, California workers' compensation laws generally provide the exclusive remedy for an employee's claim for physical injuries, including emotional distress, arising from conduct within the normal scope of the employment relationship. However, employees with workers' compensation claims may sue for violations of the Americans with Disabilities Act, the California Fair Employment and Housing Act, and wrongful discharge in violation of public policy when they have been discriminated against on the basis of their injuries. Prue v Brady Co./San Diego, Inc. (2015) 242 CA4th 1367. See §17.58.

Chapter 19: Insurance Coverage for Employment Claims

Two recent federal court decisions have reached contrary conclusions about whether the claim that an employer's failure to reimburse business expense under Lab C §2802 is precluded by a policy exclusion for violations of any state law governing wage, hour and payroll policies and practices. Compare Admiral Ins. Co. v Kay Auto. Distribs., Inc. (CD Cal 2015) 82 F Supp 3d 1175 (holding that §2802 is a wage and hour law, and exclusion applies) with Hanover Ins. Co. v Poway Academy of Hair Design, Inc. (SD Cal, Nov 14, 2016, No. 15cv536 BTM DHB) 2016 US Dist Lexis 158041 (finding §2802 is not a wage and hour law, and thus not subject to wage and hour exclusion in policy). See §19.12.

Chapter 20: Mediation and Arbitration of Employment Disputes

A party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The costs of using a reporter fall on the party requesting one. If for some reason the arbitrator refuses the request for a reporter, the requesting party can petition the court for an order compelling the arbitrator to grant the request. CCP §1282.5. See §20.45.

Chapter 21: Public Employment Issues

The right to union representation extends to nondisciplinary meetings with management that may have an impact on the employee's terms and conditions of employment, such as a meeting to discuss possible accommodations of the employee's disability. Sonoma County Superior Court (2015) PERB Dec. No. 2409C, 39 PERC 88. See §21.8.

When one organization wins recognition as the "exclusive representative" for a group of employees in a particular "bargaining unit," then only that organization may represent employees in that unit. Hartnell Community College Dist. (2015) PERB Dec. No. 2452E, 40 PERC 56. See §21.11.

About the Authors

BONNIE BOGUE (Chapter 21: Public Employment Issues) has been an arbitrator and mediator since 1977 and is a member of the National Academy of Arbitrators. Formerly director of the California Public Employee Relations Program at the University of California, Berkeley, she contributed to its journal, CPER, from 1970 until 1994. She also is coauthor of several titles in CPER's Pocket Guide Series. She is a past Chair of the Labor and Employment Law Section of the California State Bar.

DENISE N. BRUCKER (Chapter 10: Employee Handbooks) is a 1997 graduate of Northeastern School of Law and is associated with Paul, Plevin, Sullivan & Connaughton LLP in San Diego. She has over 6 years of experience in employment litigation and counseling. Ms. Brucker's current practice is devoted to counseling management and human resource professionals on compliance issues and risk avoidance. Her areas of expertise cover a broad range of employment issues, including wage and hour, family and medical leaves, employment discrimination and harassment, trade secrets, and contract issues. Ms. Brucker also defends employers in administrative proceedings before the Department of Labor, DFEH, and EEOC.

ARTHUR CHINSKI (Chapter 3: Independent Contractors, Leased Workers, and Outsourcing) is a shareholder with the firm of Buchalter Nemer in Los Angeles. Mr. Chinski graduated in 1967 from the University of California, Los Angeles, and received his law degree in 1970 from the University of California, Davis, School of Law. From 1971 to 1974, he was an attorney with the Region 21 office of the National Labor Relations Board in Los Angeles. For the Business Law Institute, he was Director and Chair of the Employment Regulations Program, Director of the Compensation and Benefits Program, and Director and Chair of the Human Resources Program. Mr. Chinski has served on the Executive Board of the Los Angeles County Bar Association's Labor Law Section and has served as Vice-Chair and a member of the Executive Committee of the Bar Association's Arbitration Committee. He is currently Adjunct Professor of Law at Southwestern University School of Law, where he teaches Entertainment Industry Labor and Employment Law in the School's Biederman Media and Entertainment Law Institute, which offers a Masters in Law Degree in Entertainment Law.

MARGARET HART EDWARDS (Chapter 2: Employment Contracts and Executive Compensation and Chapter 9: Notice-Posting, Training, and Recordkeeping Requirements) is a shareholder in the firm of Littler Mendelson PC, San Francisco. Ms. Edwards graduated (cum laude) in 1972 from the University of Chicago and received her law degree (cum laude) in 1975 from Northwestern University. Ms. Edwards was a former member of the Board of Contributing Editors for the California Business Law Reporter. She is the author of Posting and Recordkeeping Requirements for Employers (Cal CEB Client Handbook Series 1997), A Model Employee Handbook for California Businesses (Cal CEB Client Handbook Series 1994), and Americans with Disabilities Act: A Practical Guide for Employers (Cal CEB Client Handbook Series 1994). In addition, Ms. Edwards has written over 30 articles on labor and employment topics for a wide range of publications. She has lectured before such groups as the Administrative Law Judges Association, the Employers Group, the Merchants and Manufacturers Association, the Northern California Human Resources Council, the Council on Education in Management, the Defense Research Institute, the California Continuing Education of the Bar, the American Council on International Personnel, the American Payroll Association, the California Hospitality and Lodging Association, the California Downtown Association, the California Mortgage Bankers Association, and a variety of legal professional organizations. Ms. Edwards is a member of the Board of Directors of the National Employment Center for the American Foundation of the Blind and served for 10 years as a member of the Board of Directors of the Legal Aid Society of San Francisco.

DOUGLAS J. FARMER (Chapter 17: Discipline and Termination) received his A.B. (magna cum laude) from Harvard University and his J.D. from Harvard Law School. Mr. Farmer is a partner with Sheppard, Mullin, Richter & Hampton LLP in San Francisco, where he specializes in employment law counseling and class action litigation. He was recently identified by Chambers USA as one of California's leading employment lawyers. He is a former EEOC Trial Attorney, a frequent speaker for human resources groups nationwide, and the author of several employment law publications for lawyers. He created one of the first Spanish-language sexual harassment training programs, which has been used by California employers to train managers and employees throughout the Southwest. Mr. Farmer is a member of the San Francisco Bar Association's Diversity Committee.

LISA A. FRANK (Chapter 10: Employee Handbooks) is co-founder of Kasper & Frank LLP. Ms. Frank advises employers on issues such as hiring, leaves of absence, disability accommodation, performance management, wage and hour compliance, reductions in force, and the protection of intellectual property. She also regularly provides management and human resources training and conducts workplace investigations and is a skilled litigator. Before founding Kasper & Frank, she served as partner at one of San Diego's leading employment law firms, in-house counsel at the world's largest independent biotechnology company, and associate at a prominent international law firm. Ms. Frank earned her B.A. (Phi Beta Kappa) from the University of California, Santa Cruz, in 1995, and her J.D. from the University of California, Berkeley, School of Law in 1999.

CYNTHIA E. FRUCHTMAN (Chapter 16: Whistleblower Issues) earned her B.A. from Northwestern University in 1979 and her J.D. from Chicago-Kent College of Law in 1986. She was a law clerk to The Honorable N. Fred Woods of the Los Angeles County Superior Court and to The Honorable Prentice H. Marshall of the U.S. District Court for the Northern District of Illinois. She has been in sole practice in Santa Monica since 1997. Ms. Fruchtman has served as a Guest Lecturer at the University of California, Los Angeles, School of Law and as an Adjunct Professor at California State University in Los Angeles and at Whittier Law School. She is a mediator and Judge Pro Tem for the Los Angeles County Superior Court. In addition, she was Co-Chair of the Los Angeles County Bar Association Bioethics Committee from 1998 to 2000 and is active in the bioethics field, having been appointed to the Joint Bioethics Committee of the Los Angeles County Bar Association and the Los Angeles County Medical Association and serving as a Board Member of The Center for Research and Training in Humane and Ethical Medical Care at the Santa Monica/UCLA Medical Center. Her practice focuses on labor law and civil litigation in the areas of employment, business, and real estate. She has written extensively on employment law and assisted-reproduction topics.

LAWRENCE J. GARTNER (Chapter 1: Hiring Guidelines and Pitfalls) is a partner with the firm of Ballard Spahr LLP in Los Angeles. Mr. Gartner graduated in 1967 from the University of California, Berkeley, and received his law degree in 1970 from Harvard Law School. He is a former trial attorney for the Equal Employment Opportunity Commission. In 1985–1986, he was the Chair of the Public Employment Committee of the Labor and Employment Law Section of the State Bar.

LARRY M. GOLUB (Chapter 19: Insurance Coverage for Employment Claims) is a partner with the firm of Hinshaw & Culbertson LLP in Los Angeles. Mr. Golub graduated magna cum laude in 1979 from the University of California, Los Angeles, and received his law degree magna cum laude in 1983 from the University of California, Hastings College of the Law, where he was the Note and Comment Editor of the Law Review. He served as a Judicial Extern to California Court of Appeals Justice Joseph Grodin in 1982. Among Mr. Golub's insurance-related publications are the following: "Analyzing Coverage: Reading & Interpreting Insurance Policies" and "Claims Involving Excess Insurance," both for California Liability Insurance Practice: Claims & Litigation (Cal CEB 1991); "Business General Liability Policies," for California Insurance Law & Practice (LexisNexis 1992); "Products Liability Insurance," for California Insurance Law & Practice (LexisNexis 1994); and "Identifying and Using Insurance Coverage in Business Litigation," for a CEB business law program presented in 1986, 1989, 1991, and 1993. Mr. Golub also lectures extensively on insurance coverage issues, including the issue of insurance coverage for employment claims.

JOEL GROSSMAN (Chapter 20: Mediation and Arbitration of Employment Disputes) is a mediator and arbitrator with JAMS in Santa Monica. He graduated from the University of Pennsylvania with honors in 1972, received a Masters Degree in English from the University of California, Santa Barbara, in 1974, and received a J.D. from University of California, Los Angeles, School of Law in 1979, where he was elected to the Order of the Coif. He clerked for the Hon. Eugene Wright of the Ninth Circuit Court of Appeals and then joined the Los Angeles office of O'Melveny & Myers, where he practiced labor and employment law. During this period, he co-authored a leading treatise on employment law, The Modern Law of Employment Contracts, with Charles G. Bakaly Jr. After O'Melveny & Myers, Mr. Grossman was a partner with Selvin & Weiner, where he handled labor and litigation matters. In early 1989, he left private practice to become the head of the Labor Relations and Litigation Divisions of Sony Pictures Entertainment, a major studio that produces motion pictures and television. After nearly 15 years at Sony, he became a mediator at ADR Services, Inc., and then moved to JAMS, the nation's leading provider of mediation and arbitration services. He has been selected five times as one of the top neutrals in California by the Daily Journal.

STEFANIE M. GUSHÁ (Chapter 1: Hiring Guidelines and Pitfalls) is Manager of Labor Relations with SUPERVALU INC. in Fullerton. She earned a B.A. degree from the University of California, Berkeley, in 2000 and a J.D. degree from Stanford Law School in 2003, where she served as an advocate for low-income students with disabilities during special education proceedings in conjunction with the Youth and Education Law Clinic. She also served as co-chairperson of academic affairs for the Stanford Law School Association and Senior Editor of the Stanford Law and Policy Review.

ERIC HENDRICKSON (Chapter 8: Unemployment Compensation and State Disability Insurance) is a Staff Counsel with the Legal Office of the Employment Development Department in Sacramento.

CYNTHIA L. JACKSON (Chapter 18: Reductions in Force and Plant Closings) is a partner with Baker & McKenzie LLP in the firm's Palo Alto office. She is chair of the firm's North America Compensation and Employment Law Practice Group and serves on both the Global Employment and North America Corporate Compliance steering committees. She has over 30 years of experience working on domestic and international employment counseling and litigation. Ms. Jackson has been consistently recognized as a leader in her field by Chambers USA, Legal 500, Best Lawyers of America, Northern California Super Lawyers, and America's Leading Lawyers for Business. Her articles have appeared in numerous publications, including The San Francisco and Los Angeles Daily Journal and Financier Worldwide. She is also a frequent speaker for various seminars and institutions, such as the Association of Corporate Counsel, Bay Area Council, and Sciences Politiques (Paris). Ms. Jackson graduated in 1976 from Stanford University and received her law degree in 1979 from the University of Texas.

STEPHEN R. LUEKE (Chapter 5: Wage and Hour Laws) is a partner with the firm of Ballard, Rosenberg, Golper & Savitt LLP in Universal City. Mr. Lueke graduated cum laude in 1973 from the University of South Carolina and received his law degree in 1984 from Loyola Marymount University. He held a number of positions with the NLRB's headquarters and field offices before entering private practice.

THOMAS G. MACKEY (Chapter 14: Employer Liability for Acts of Employees) is of counsel to Jackson Lewis in Los Angeles. Mr. Mackey graduated in 1991 from California State University at Northridge and received his law degree in 1994 from the University of California, Hastings College of the Law.

EVERETT F. MEINERS (Chapter 13: Workplace Privacy) is a senior member of the Labor and Employment Department of Parker, Milliken, Clark, O'Hara & Samuelian in Los Angeles. Mr. Meiners graduated in 1961 from the University of California, Riverside, and received his law degree in 1964 from the University of California, Los Angeles, School of Law, where he was the Chief Justice of the Moot Court Honors Program. He served as the law clerk to Justice Gordon L. Files of the California Court of Appeals from 1964 to 1965 and joined the law firm of Parker, Milliken in 1965. Mr. Meiners is a member of the Board of Directors of the Los Angeles Chapter of IRRA (Industrial Relations Research Association), an officer of the Orange County Chapter of IRRA, and a member and mentor for PIHRA (Professionals in Human Resources Association). He has spoken regularly at the Annual Labor Law Conference presented by Region 21 of the NLRB, the Orange County IRRA, and the Federal Mediation and Conciliation Service. He is a Member of the Southern California Mediation Association and a graduate of the Straus Institute for Dispute Resolution at Pepperdine University School of Law. Mr. Meiners is also a member of the Los Angeles Superior Court Mediation Panel and a Trustee of the San Fernando Valley Bar Association. He is a regular contributor to the CEB Topics website on issues concerning employment law and the editor of PMCOS Labor News. In 2005 and 2006, he was selected as a Super Lawyer by Los Angeles Magazine in the category of Employment Litigation.

SEAN A. O'BRIEN (Chapter 11: Trade Secrets Protection and Unfair Competition) is an attorney with the firm of Payne & Fears LLP and practices in Irvine. Mr. O'Brien graduated in 1983 from the University of California, Los Angeles, received an M.B.A. in 1986 from the University of California, Berkeley, and received his law degree in 1987 from the University of California, Berkeley, School of Law. (Mr. O'Brien can be contacted at sao@paynefears.com.)

MICHAEL PEDHIRNEY (Chapter 2: Employment Contracts and Executive Compensation and Chapter 9: Notice-Posting, Training, and Recordkeeping Requirements) is a shareholder in the San Francisco office of Littler Mendelson. He received a B.A. from the University of Notre Dame in 2001, where he graduated magna cum laude, and a J.D. from the University of Washington School of Law in 2004. While attending law school, he worked as an extern at the Associate Regional Solicitor's Office for the Department of Labor. He also served as an associate notes and comments editor for the Washington Law Review. Mr. Pedhirney specializes in the representation of management in all aspects of labor and employment law, including contract negotiations, collective bargaining, appellate matters, and arbitration and mediation.

PATRICIA C. PEREZ (Chapter 16A: Workplace Investigations) is founder and president of Puente Consulting, Inc. in San Diego. A graduate of the University of California, Los Angeles, School of Law and a certified Senior Professional in Human Resources, Ms. Perez has practiced employment law since 1992. A native Spanish speaker, she has worked in Mexico with judicial education programs; has trained thousands of HR, legal, and other professionals; and has extensive experience as an employment attorney and an HR executive. Ms. Perez is active in community and professional organizations, including the Society for Human Resource Management's (SHRM) national and local chapters, the California State Bar and the San Diego County Bar Association (she is Chair of the Executive Committee of the Labor and Employment Law Section of the California State Bar), the UCLA Alumni Association (she is a past member of its Board of Directors), San Diego MANA (she is a member of its Advisory Board), and the National Association of Women Business Owners (NAWBO). Ms. Perez was a 2006 finalist for NAWBO's Business Owner of the Year Award and was recently named one of San Diego Metropolitan Magazine's "40 under Forty"—an award given to the region's outstanding young business and civic leaders. Ms. Perez makes frequent presentations about HR and employment law topics, including recent speaking engagements for the California State Bar, the California Restaurant Association, and the Hospitality Human Resources Association. She was a featured speaker at SHRM's 2006 Annual National Diversity Conference. Additionally, Ms. Perez has taught employment law at the University of California, San Diego.

LISA PRINCE (Chapter 12: Workplace Safety) is a partner with Walter & Prince LLP in Healdsburg. Ms. Prince earned her B.A. cum laude at Sonoma State University and her J.D. cum laude from Empire College School of Law in Santa Rosa. She is a member of the Sonoma County Bar Association and the American Society of Safety Engineers.

JOANIE L. ROESCHLEIN (Chapter 14: Employer Liability for Acts of Employees) is Director for Employment Law, Ethics & Compliance for Synopsys, Inc., in Mountain View. Ms. Roeschlein earned a B.A. degree from the University of California, Los Angeles, in 1994 and graduated summa cum laude from Southwestern University School of Law in 2000, where she was Managing Editor of the Law Review and a member of the Moot Court Honors Program. She received a first-place brief award and was a semifinalist oralist in the 1998–1999 Nationals Moot Court Competition. She has written articles for the Los Angeles Lawyer and for the 18th Annual Advanced ALI-ABA Course of Study on "Seeking and Defeating Summary Judgment in Light of Reeves v. Sanderson Plumbing Products and Its Progeny."

RICHARD S. ROSENBERG (Chapter 5: Wage and Hour Laws) is one of the founding partners of Ballard, Rosenberg, Golper & Savitt LLP in Universal City. Mr. Rosenberg graduated in 1974 from the College of Industrial and Labor Relations at Cornell University and received his law degree magna cum laude from the University of Santa Clara in 1977, where he was an editor of the Law Review. He has devoted his entire career to the representation of employers in employment law matters and frequently lectures to management groups on the subject of wage hour law compliance and labor and employment law.

KATE WEST ROWAN (Chapter 2: Employment Contracts and Executive Compensation) is a shareholder of Littler Mendelson, practicing in its San Francisco office. Ms. Rowan advises employers on all aspects of the design, implementation, taxation, and administration of employee benefits and executive compensation arrangements, including stock-related compensation programs such as option plans, restricted stock plans, and employee stock purchase plans; retirement plans such as qualified retirement plans and deferred compensation arrangements; and welfare and fringe benefit programs such as health plans, cafeteria plans, and severance programs. She has extensive experience with fiduciary issues involved with benefit plan fund investment (including prohibited transactions and private equity investments). Ms. Rowan provides expertise to employers regarding benefits issues arising in the context of mergers, acquisitions, and other business transactions, including negotiating benefits representations, warranties and covenants, and handling golden parachute issues. She also has extensive experience advising employers regarding employment law issues, including WARN Act compliance. Ms. Rowan earned a B.A. degree from the University of California, Berkeley, in 1975, and a J.D. degree from the University of California, Hastings College of the Law, in 1982. Ms. Rowan coauthored "Age, Sex and Disability Discrimination in Employee Benefit Plans," for the BNA Tax Management Portfolio, 2d ed., and served as contributor and coeditor for the chapter on ERISA Reporting and Disclosure in Employee Benefits Law, 2d ed., published by the American Bar Association Labor Section. Ms. Rowan is a member of the Employee Benefits Committees of the Labor and Tax Sections of the American Bar Association and serves on the Advisory Board for Practicing Law Institute. She is also a member of the Western Pension & Benefits Conference and the San Francisco Bar Association. She has been a speaker before numerous employer and professional groups on employee benefits topics, including, most recently, programs on stock option plans and 401(k) plans.

RICHARD A. SAFFIR (Chapter 7: Tax Compliance) received his B.A. in 1983 from State University of New York, Binghamton (Harpur College), his J.D. in 1986 from Albany Law School, and his LL.M. in 1987 from New York University. Mr. Saffir, who is licensed in New York and California, is Associate General Counsel for Imagine Media, Inc., in Brisbane. He specializes in tax and business planning for closely held start-up companies.

WILLIAM B. SAILER (Chapter 10: Employee Handbooks), is Senior Vice President, Legal Counsel for Qualcomm Incorporated in San Diego, where he supervises all employment law issues for the company. He was formerly a partner with the firm of Gray Cary Ware & Freidenrich, representing employers in all labor and employment law matters. Mr. Sailer graduated with Honors in 1982 from Swarthmore College and received his law degree cum laude in 1985 from the University of Michigan Law School. He is President of the California Employment Law Council, a past member of the State Bar's Labor and Employment Law Section Executive Committee, past President of the San Diego Chapter of the Industrial Relations Research Association, and past Chair of the San Diego County Bar Association's Labor and Employment Law Section. Mr. Sailer is a multiple recipient of the State Bar's Wiley E. Manual Pro Bono Service Award and the San Diego Volunteer Lawyer Program Distinguished Service Award. He is a frequent speaker for CEB and other organizations on the subject of employment law and has written extensively on employment law issues.

TERENCE R. SAVAGE (Chapter 8: Unemployment Compensation and State Disability Insurance) is Staff Counsel III with the Legal Office of the Employment Development Department in Sacramento, where he is Supervisor of the Benefit Team responsible for Unemployment, Disability, and Paid Family Leave Benefits. Mr. Savage earned a B.A. degree in 1971 from La Grange College in Georgia, and a J.D. in 1975 from Widener College, The Delaware Law School, in Wilmington.

DEBORAH CRANDALL SAXE (Chapter 6: Vacations, Family and Medical Leave, and Other Time Off) is a partner in the Los Angeles office of Jones Day. Ms. Saxe graduated Phi Beta Kappa in 1971 from Pennsylvania State University. She received a Master's Degree in Comparative Literature in 1973 from the University of California, Los Angeles, and her law degree in 1978 from the University of California, Los Angeles, School of Law, where she was a member of the Law Review. Ms. Saxe is the author of Family and Medical Leave: A Practical Guide for Employers (Cal CEB Handbook Series 1995). She is a frequent lecturer on employment and labor issues for business and professional groups. She is a Fellow in the College of Labor and Employment Lawyers and was selected by her peers to be included in the 2006 edition of Best Lawyers of America. Ms. Saxe also was ranked by Chambers & Partners USA as a "leading lawyer" in employment law (2004 and 2005) and was recognized by her peers as one of the top 50 female Super Lawyers in Los Angeles and Orange counties (2004 and 2005).

TERESA R. TRACY (Chapter 15: Discrimination and Harassment) is a partner with Freeman Freeman Smiley LLP in Los Angeles. Ms. Tracy graduated magna cum laude in 1974 from California State University, Northridge, and received her law degree cum laude in 1979 from Loyola University School of Law, where she was a member of the Law Review. She authored an article for the Law Review entitled "Comparative Fault and Intentional Torts." She frequently writes articles on employment law topics and has participated in many national teleconferences addressing employers on such topics as discrimination and harassment, class actions, wage and hour cases, and noncompete agreements.

MATTHEW T. WAKEFIELD (Chapter 5: Wage and Hour Laws) is a partner with the firm of Ballard, Rosenberg, Golper & Savitt LLP in Universal City. Mr. Wakefield graduated in 1984 from California State University, Hayward, and received his law degree in 1994 from the University of San Diego Law School, where he was a member of the Order of the Coif and the Executive Editor of the Law Review. He is a recipient of the Brundage and Zellmann Award for Excellence in Labor Law and the American Jurisprudence Award for Civil Procedure.

FRED WALTER (Chapter 12: Workplace Safety) is a founding partner of Walter & Prince LLP in Healdsburg. He graduated in 1970 from San Jose State University with a B.A. in Political Science (honors colloquium) and obtained his J.D. in 1978 from Lincoln University School of Law in Sacramento.

MITCHELL L. WEXLER (Chapter 4: Immigration Law Requirements for Employers) is a partner and member of the Executive Committee of the worldwide immigration law firm Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its Irvine office. Mr. Wexler is certified in immigration and nationality law by the State Bar Board of Legal Specialization. He is past Vice Chair of that certifying body and past Chair of the Southern California Chapter of the American Immigration Law Association (AILA). He has written in excess of 200 articles on various immigration law-related topics and is a frequent speaker on employment-related immigration topics.

About the 2017 Update Authors

MICHAEL BOSHNAICK is one of the update authors of Chapter 4 (Immigration Law Requirements for Employers). Mr. Boshnaick is a partner in the Los Angeles office of Fragomen, Del Rey, Bernsen & Loewy, LLP. He received a B.A. from New York University in 1987 and a J.D. from Southwestern University School of Law in 1993. He is a guest lecturer in immigration law at Southwestern and a frequent speaker on employer sanctions and immigration topics for organizations such as the Employers Group and the Council for Global Immigration.

ARTHUR CHINSKI is one of the update authors of Chapter 3 (Independent Contractors, Leased Workers, and Outsourcing). For biographical information, see About the Authors.

LISA A. FRANK is the update author of Chapter 10 (Employee Handbooks). For biographical information, see About the Authors.

CYNTHIA E. FRUCHTMAN is the update author of Chapter 16 (Whistleblower Issues). For biographical information, see About the Authors.

LARRY M. GOLUB is the update author of Chapter 19 (Insurance Coverage for Employment Claims). For biographical information, see About the Authors.

JAMES R. MOSS, JR. is one of the update authors of Chapter 17 (Discipline and Termination). Mr. Moss is the managing partner of Payne & Fears LLP's Salt Lake City office, and continues to work extensively with California clients from the firm's Irvine office. He specializes in representing employers in state and federal courts and before administrative agencies in all areas of employment law, including wrongful termination, discrimination, harassment, breach of contract, class actions, and trade secret litigation. Mr. Moss also advises clients in traditional labor matters including organizing, collective bargaining, strikes and picketing, and has represented employers before the National Labor Relations Board. He received a B.A. from Brigham Young University in 1993; a J.D., cum laude, from Brigham Young University School of Law in 1997, where he served as Senior Editor of the Brigham Young University Law Review; and an Ed.D. in Urban Education from the University of Southern California in 2010. After law school, he was a law clerk to the Honorable A. Andrew Hauk of the United States District Court for the Central District of California in Los Angeles. Mr. Moss is a member of the Utah Bar Association and the Orange County Bar Association, and has served as the Chair and on the Board of Directors of the Orange County Chapter of the J. Reuben Clark Law Society.

SEAN A. O'BRIEN is the update author of Chapter 11 (Trade Secrets Protection and Unfair Competition). For biographical information, see About the Authors.

AUDREY S. OLSON is one of the update authors of Chapter 3 (Independent Contractors, Leased Workers, and Outsourcing). Ms. Olson received her B.A. from Brigham Young University in 2011 and her J.D. from the University of San Diego School of Law in 2014, where she was the Executive Editor of the San Diego International Law Journal. She is an associate attorney with Buchalter Nemer, where her practice focuses on employment litigation and counseling, as well as general commercial litigation. She has been published in California Apparel News, and is a member of the J. Reuben Clark Law Society, the California Receiver's Forum, and the City of Hope Fashion & Retail Industry Group.

MICHAEL PEDHIRNEY is the update author of Chapter 2 (Employment Contracts and Executive Compensation) and Chapter 9 (Notice-Posting, Training, and Recordkeeping Requirements). For biographical information, see About the Authors.

PATRICIA C. PEREZ is one of the update authors of Chapter 16A (Workplace Investigations). For biographical information, see About the Authors.

LISA PRINCE is one of the update authors of Chapter 12 (Workplace Safety). For biographical information, see About the Authors.

JENNIFER L. SANTA MARIA is one of the update authors of Chapter 16A (Workplace Investigations). Ms. Santa Maria is a shareholder in the San Diego office of Ogletree Deakins. She regularly conducts workplace investigations, typically concerning matters of harassment, discrimination, whistle-blowing, retaliation, or violations of policy. Ms. Santa Maria also provides regular advice and counseling to employers on the broad spectrum of employer-employee relations, including hiring, promotion, discipline, medical leaves, disability accommodation, and termination. She received a B.A. degree, cum laude, from Michigan State University in 2000, and a J.D. from California Western School of Law in 2002.

ERICH W. SHINERS is the update author of Chapter 21 (Public Law Issues). Mr. Shiners, with Renne Sloan Holtzman Sakai LLP in Sacramento, practices in the areas of labor and employment law, with an emphasis on traditional labor law. His practice includes representing public and nonprofit employers in appellate and trial court litigation, arbitration, unfair labor practice proceedings, and representation elections. From 2008 to 2011, he served as a Legal Adviser to a member of the Public Employment Relations Board, where he drafted Board decisions and represented the agency in appellate litigation. Mr. Shiners is an advisor to the Executive Committee of the Labor & Employment Law Section of the State Bar of California, and a former Co-Editor-in-Chief of the Section's Labor & Employment Law Review. He also served a 3-year term on the Executive Committee of the Sacramento County Bar Association's Labor & Employment Law Section. Besides his work on this publication, Mr. Shiners is an author and consultant for California Public Sector Labor Relations (LexisNexis). He received a B.A. degree from Sacramento State University and a J.D. degree from the University of the Pacific, McGeorge School of Law.

RODNEY SORENSEN is one of the update authors of Chapter 17 (Discipline and Termination). Mr. Sorensen is the managing partner of the San Francisco and Silicon Valley offices and a partner in the Employment Law Group at Payne & Fears LLP. Over the past 15 years he has specialized in all types of employment litigation, including wage and hour, trade secrets, wrongful termination, discrimination, and sexual harassment in state and federal court proceedings, administrative hearings, mediation and arbitration. Mr. Sorensen received a B.S. degree, cum laude, from California Polytechnic State University in San Luis Obispo in 1995, and a J.D. from Santa Clara University School of Law in 1998, where he was an Editor of the Santa Clara University Law Review and a member of the Moot Court Board. Prior to joining Payne & Fears LLP, Mr. Sorensen was a partner in the employment law department of DLA Piper, US LLP.

TERESA R. TRACY is the update author of Chapter 15 (Discrimination and Harassment). Ms. Tracy is now a partner of Freeman Freeman Smiley LLP in Los Angeles. For other biographical information, see About the Authors.

STEPHEN J. TURANCHIK is the update author of Chapter 7 (Tax Compliance). Mr. Turanchik is an attorney in the Tax Department at Paul Hastings LLP, where he specializes in civil tax controversy and litigation. He is a former Trial Attorney of the U.S. Department of Justice, Tax Division, Northern Region, where he tried four jury trials and dozens of bench trials. Mr. Turanchik earned his J.D. from Fordham University School of Law and his LL.M in Taxation from New York University School of Law. He is the former Chair of the Taxation Section of the Los Angeles County Bar Association. He also teaches as an Adjunct Professor at Loyola Law School and was previously an Adjunct Professor for the Graduate Tax Program at Golden Gate University.

MATTHEW T. WAKEFIELD is the update author of Chapter 5 (Wage and Hour Laws). Mr. Wakefield now practices law in the Charlotte, North Carolina, office of Ballard, Rosenberg, Golper & Savitt LLP. For other biographical information, see About the Authors.

FRED WALTER is one of the update authors of Chapter 12 (Workplace Safety). For biographical information, see About the Authors.

MITCHELL L. WEXLER is one of the update authors of Chapter 4 (Immigration Law Requirements for Employers). For biographical information, see About the Authors.

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PRACTICE AREA Public Law