California Labor & Employment Law Update - Summer 2006

Wage Hour Developments

• Separation from employment need not be involuntary to trigger duty to pay on the spot or waiting time penalties.
• Are you sure your California employees are paid a commission? The concept of commission based compensation narrowed in California.

Discrimination and Retaliation Update

• Liability for harassment by non-employees was retroactive.
• The pivotal role of the TV show “Friends” in protecting free speech . . . “Sexual antics and coarse sexual talk” on a sitcom held insufficient to support a hostile work environment.

Speech in the Workplace

• No First Amendment violation where employer prohibited employee from discussing religion with clients, displaying religious items in his cubicle, and using a conference room for prayer meetings.
• The First Amendment does not however protect everything a government lawyer says in the course of performing duties.

Disability Discrimination Update

• Allowing employee to take extended medical leave is accommodation, and no further accommodation was necessary.
• Employer must engage in interactive process or accommodate an employee or applicant it regards as disabled.

Family Medical Leave Update

• Employee properly terminated for inappropriate behavior, not for requesting FMLA leave.

More on Class Actions

• In search of an eligible plaintiff - - - - permitting discovery to find a class representative is acceptable in California

Employee Benefits

• Ninth Circuit rules that Xerox Corp.’s method of reducing pension benefits at final retirement to account for earlier benefit distributions received by plan participants violated ERISA.
• ERISA pension benefits can be garnished under the Mandatory Victims Restitution Act (MVRA).

Labor Law Update

• Suspicious timing of subcontracting department work, just days before a union election, sufficiently demonstrated anti-union animus.
• Successor employer ordered to bargain with union.

Employment Contracts

• Disavowal that “cause” is not required is not essential to “at will” status.
• Choice-of-law and forum selection provisions contained in employment agreement were enforceable.

Workers Compensation

• General contractors are not liable for injuries suffered when a sub-contractor hires an independent contractor to perform services.
• Residential employee who was injured on his first day on the job is excluded from Workers’ Compensation Coverage.

Federal Administrative and Legislative Update

• EEOC numbers.
• EEOC announces a race-centered focus.

California Administrative and Legislative Developments

• Labor Commission precedent decision 2006-0003
• Labor Commission precedent decision 2006-0004