California Employment Attorney Blog

Employment Law for the People

The New California Case Citation Rules – Cardenas v. Fanaian

Effective July 1, 2016, the new California case citation Rules of Court reverse decades of automatic depublication of Court of Appeal decisions pending Supreme Court review. The new rules allow citation pending review, but also impose duties on counsel to qualify and update those citations. The Supreme Court may depublish the Court of Appeals decision but now must explicitly issue an order of depublication as the automatic depublication no longer applies.

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Human Resources — Why H.R. Investigations Don’t Do the Job

The following reasons for why H.R. doesn’t help is a jaundiced list but it cuts close enough to reality. Use it as a reality check for what may be happening (or what already happened) at your Company. The post covers some actions you can take to protect yourself.

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Limited Liability Companies – LLC Basics

A Corporate Member of an LLC has liability limited to the member’s investment contribution to the LLC. This means that if Parent Company Inc. is a member of an LLC, Parent Company’s exposure to pay the debts and liabilities of the LLC is limited to the investment of assets and capital Parent Company has placed with the LLC.

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California Teacher Rights – Due Process

Due Process Required to Deprive Teacher of Job Public employees have a property interest in their jobs.  This right separates them from their private employment peers.  Non-public employees have only a contractual right to employment or rights conferred by state and...

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PAGA Dismissals: Iskanian Bit Off a Duty – But Can He Spit It Out?

PAGA dismissals may violate the interests of the abandoned employees and be a breach of the duty voluntarily undertaken by the individual “Private Attorney General.” Case law on this point is developing. Comparable to class actions, a PAGA case may impose a duty on the Defendant to refrain from undercutting the interests of the class with a secret overture to the class [PAGA] representative.

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Gender Bias in Law Firms: Recommendations for Change

Gender bias in law firms that results in lower pay and missed promotions should be a source of shame for the profession. This article makes fifteen recommendations for effecting systemic change at the level of the firm. This “cellular” approach may be a beginning for larger community wide change.

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A Tool or a Fool for Discrimination?

It helped a bit when Algis’s attorney introduced surprised video footage showing that Gordon had made the “expired produce” switch the night before the store inspection. Algis’s attorney received the digital time stamped recording from one of the quieter female store clerks who had too long tolerated Gordon’s antics. From “All’s Well That Ends Well,” I leave this final quote: “Love all, trust a few, do wrong to none.”

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Recover Your Unpaid Employment Expenses – CA Labor Code Sec. 2802

A claim for expenses can be filed with Labor Commissioner who is authorized to investigate the Complaint, and to conduct a hearing. Section 2802 provides for the Commissioner to impose civil penalties on the employer for failure to pay. The penalty for the first failure is $100.00. For each subsequent violation, the penalty is $250.00.

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Class Action Arbitration – The Upside Down World of Who Decides?

Why would a prominent defense firm representing employers argue that class action status, or “certification” should be decided by a judge rather than an arbitrator? In the world before Alice went down the rabbit hole, employer attorneys would almost always prefer arbitration of disputes because of the less likely risk of a “runaway” verdict.

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Arbitration: Forever 21 – A Loaded Game of Black Jack.

The long pointing finger of death is now aimed at Armendariz, the last hold out against arbitration on the argument that discrimination and harassment are uniquely pernicious instances of social misconduct that compel the preservation of a jury right as a matter of public policy.

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New Teeth for the California Equal Pay Act

An equal pay case will focus on job descriptions, individual output, employee achievements, prevailing rates in the locale, employer pay grades and systems, performance criteria and performance evaluations, and hard financial measures showing a pay differential is a “business necessity.” California now leads the nation once again in expanding the equal pay law first enacted by the federal government in 1963 and California itself in 1949.

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The Class Action Freeway: Entering the Fast Lane for Certification – Reporting Time

The search is on for the lean and efficient class action in view of the impediments placed by recent Supreme Court cases. The attack is now focused on the company wide policy effecting all employees identically.

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Real People, Real Questions, Straight Employment Law Answers Vol. 2 Nov. 2015

To paraphrase an old comic, Jack Benny, known to be pretty tight with his money, when an armed robber demanded “Your life or your money!” Benny asked for time to think about it. But really, your chat or your job? You need a better Employment Law Answer.

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Take the Suspense Out of Spending: Become Cost Conscious

Why does spending get out of control? We Over-focus on Income. 1.  We ignore the associated costs associated with a purchase:  depreciation, insurance and taxes, for example.  Instead we focus on the immediate gain:  a bigger house, a newer car,  a longer vacation. ...

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PAGA Arbitration — More Than One Way to “Iskanian” a Cat.

A Ninth Circuit decision has concluded California “PAGA” cases may not be forced into arbitration of individual employee claims [Sept. 28, 2015]. The decision is the factual and legal “set up” for the final showdown before the U.S. Supreme Court.

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Unemployment and Traffic Court – California Reforms

Still to be considered: the practice of suspending a license for failure to pay a traffic violation fine. The failure to pay is usually a matter of inability to pay. The system is not working, and in fact, is harming Californians and the California economy. The better practice would be to keep low income workers employed, off welfare, and to use the tax system to collect taxes instead of the traffic courts.

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Arbitration when Employees Mislabeled as Independent Contractors

Unscrupulous employers will seek to divert their previous illegal classification from trial court exposure by drafting private employment arbitration agreements. The argument can be made for these employees that the intent to arbitrate did not include the time the employees were mislabeled as “independent contractors.”

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Attorney’s Fees and Costs In Discrimination Litigation

Attorney’s fees and costs are recoverable in discrimination cases. Courts have interpreted Title VII and state anti-discrimination laws to shift the risk of fees and costs to the employer. An employee generally pays only if he or she had no reasonable basis to continue with the discrimination suit.

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PAGA Cases Stalled by Arbitration: Of Mice & Elephants

Courts will fashion their own case management rules that will be something less than strict class action certification procedures, but something more than full freedom to litigate the matter as a single party case. Experienced jurists already handle these kinds of “complex” cases, and they will likely use complex multi-party litigation guidelines to control the costs and extent of discovery, and to arrive at expeditious, efficient ways of resolving interim logjams in the litigation.

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Gender Bias is Not Child’s Play: It’s Time to Provide Women with Better Childcare Options.

Gender Bias may be a partial explanation for why politicians talk about family values and affordable quality childcare, but do so little about it. The result is that families suffer, and both men and women feel strain and guilt about lack of adequate care and attention for their children. The choice is often a one sided sacrifice on the part of the mother to forego needed career development for several years to care for children. More equitable solutions are needed to allow both men and women the option of working or being with family.

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Attorney’s Fees on Appeal from Labor Commissioner: Symmetry Not Required.

California Labor Code Section 98.2 is a powerful weapon for employees who are pressed into appeals by employers using the appeals process with no good faith intent to completely defeat the employee’s claim for wages on the merits.

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The Blind Audition Method – Management Can Take the Prejudice Out of Hiring.

Hiring for results should be independent of the gender, the facial features, race, the ethnicity, the skin color, the age, the religion, the weight, the hair and dress style, or other features that do not have relevance to talent and performance. Subconscious biases are difficult to root out. These biases can result in hiring less qualified people simply because they look or act like us.

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California Labor Code Violations Produce Big Damages through Private Attorney General Act [PAGA]

Seemingly minor California Labor Code violations can produce millions of dollars in damages through the use of The California Private Attorney General Act, known as “PAGA.” The Act allows private attorneys to collect fines previously collected only by the Labor and Workforce Development Agency. Now employers are seeing much more aggressive enforcement–exactly what the law intends.

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Mapping Employment Law

Not only are brains not created equal, they are created with different processing styles. I’m a visual person who enjoys movement and seeing unexpected relationships among ideas. When I ‘owned’ this particular creative style, my employment law practice shifted. One...

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Misclassified as an Independent Contractor?

Employees should not be misled because the employer provides them with a written agreement that acknowledges independent contractor status. The agreement is only one factor, and in fact a secondary factor. The primary factor is the actual control exercised by the employer over the conduct of the so-called “independent contractors.”

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I Come to Bury This Employee, Not to Praise Him.

In employment discrimination cases, employers, like Marc Antony, come not to praise the employee, but to bury him. Unlike Antony, they mean it.  The employer’s oration might go like this, as taken from Scene II, in “Julius Caesar:” Your Honor, Jurors, and Plaintiff’s...

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When to Sue Your Employer

Why would you file a suit for discrimination or harassment at work? You're a peace loving person who just wants to do his or her job, and go home to enjoy the family. Besides, you ask yourself, how can I prove it? There are three reasons to file a case for...

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Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network...

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Cook Ross Unconscious Bias

Harvard University has created a massive database from online testing for "Implicit Preference." Unconscious bias is our innate neurological filtering process that allows us to quickly assess "safety" from "danger" Our task in a complex modern society is to sort out...

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Current Creativity Exercise

 I'm participating in a six-week Stanford University online creativity class involving 30,000 people from all over the world organized into creative teams. This week's assignment is to "be more attentive."  Specifically, we are to observe and record what we...

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Prowlng for the Gaffe

I just read an article in the Los Angeles Daily Journal [“Binders Full of Platitudes” – Oct. 22, 2012, p.5] by Eric Kingsley of Kingsley and Kingsley, noting what a terrible "gaffe" Mitt Romney committed with the stated that he obtained "binders of women" to fill...

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Only Manly Men and Little Women Need Apply.

In Garrison Keillor's Lake Wobegon, "all the women are strong, all the men are good looking, and all the children are above average."  Not a place where a charge of gender stereotyping is likely to occur.  But what about some workplaces in our country where...

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Playing the Odds: Duran Duran

What are the odds the Supreme Court will overturn the Court of Appeal in any randomly selected case coming before it?  The Justices may just be more able to provide that probability analysis after its review of Duran v. U.S. National Bank Association 203...

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TRAGIC CASE BRINGS HOME THAT O.C. JURIES CARE

Over the years, Orange County juries have developed a reputation for being tightfisted with money. That reputation is undeserved. It simply means that our juries require sufficient evidence to support a large verdict. There been a number of the very substantial...

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PUTTING THE BRAKES ON RUNAWAY DEPOSITIONS

A proposed law would change the time to complete a deposition from unlimited duration to 7 hours. Currently the law requires the party objecting to the length of the deposition to suspend the deposition and to seek a protective order. The new law would allow the...

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ABSOLUTELY MAYBE: THE NEW WORK PRODUCT PRIVILEGE

The California Supreme Court has provided a clarification to the question: can a party obtain the statements taken from witnesses in a case where those statements are procured by the opposing counsel? Stated technically, the question is whether the statements are...

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CREATIVE CAREER PATH AMBIGUITY: BE ADAPTABLE

TARGET AN UNMET NEED. FOCUS ON "NEEDS" NOT JUST "PRODUCTS/SERVICES." LOOK TO YOUR UNIQUE STRENGTHS TO ANSWER: AND CAN I FILL THAT NEED BETTER/FASTER THAN MY PEERS/COMPETITORS? STEP BACK OR SIDEWAYS IN ORDER TO GROW--I.E., RE-EVALUATE YOUR APPROACHES & PATTERNS--ARE...

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Is this a “Winn”-Win or a “Cash” Out?

As the population ages, there's a growing industry of caretakers who will be working in the homes of the elderly. These persons will often spend nearly all of the 24-hour day in the home of the client. The question arises: are these caretakers entitled to overtime in...

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Another Low Impact CRASH Test for LASC Pilot

When I first wrote about the CRASH program last year with its first launching, I thought it would be a more dominant feature of the LA Superior Court.  It seems to be occasional and brief, running one to two weeks at a time, and not at all for several months...

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