Category Archives: California Questions

Quirky Question # 174: A New CA Claim, Providing Employees with Chairs

Question:

I work for a California retail employer. We have tried to stay in line with the state’s myriad wage and hour laws. We’ve audited the exempt status of questionably classified employees. We’ve reviewed and revised our meal and rest break policies. We’ve overhauled our overtime procedures. So far, we’ve avoided becoming a defendant in class action lawsuit. But now I’ve heard about another requirement – that we must provide our cashiers with chairs! Is this a new law? Answer→

Quirky Question # 162: Employee Handbooks Creating Vested Benefits

Question:

Our company is located in California. We have language in our handbook that says all our employees are “at-will.” Our existing handbook also includes provisions setting out the conditions under which we will lay people off and what benefits they would be entitled to if that were necessary. This was put in place five years ago. Given the current business climate, we may be facing lay offs in the next six months and want to change this policy. Since our employees are at-will and can be fired at any time for any reason, can we unilaterally change this policy now that business conditions have changed? Answer→

Quirky Question # 160: Non-Competes and Public Policy

Question:

We are a nationwide company with offices and employees in nearly every state. One of our primary growth areas is California. We understand that California courts are generally inhospitable to post-employment restrictive covenants, including non-competes. But, we are trying to have uniform policies throughout our organization. Consequently, we still have confidentiality and non-compete language in our employees’ contracts, even for those who work in California.

Recently, one of our employees left our company and joined a competitor, also located in California. We understood that it would be difficult to enforce the non-compete so we simply called our competitor and pointed out our concerns regarding both our non-disclosure and our non-compete obligations. We advised our competitor that we would appreciate it if they would abide by the spirit of our non-compete and noted that we would reciprocate if provided the opportunity with regard to our competitor’s employees.

Our competitor terminated our ex-employee soon thereafter. Her lawyer has now written us to state that we have violated public policy. What is he talking about? We did not fire the employee. We just had a friendly chat with our competition. Answer→

Reasonable Accommodation for Absent Employee? Quirky Question # 154

Quirky Question #154

One of our manufacturing employees, call him Jim, was fairly seriously injured in an accident on the production floor. Jim applied for workers’ compensation and was examined by a doctor. The doctor let us know that in his opinion, Jim would no longer be able to perform his job, since it required a significant amount of lifting and bending that he was simply no longer physically capable of doing. Rather than taking immediate action based on the doctor’s opinion, we waited. We thought maybe his condition would improve – Jim was a good employee, and we just didn’t want to do anything too hasty.

Meanwhile, we knew Jim was aware of the doctor’s report that he could not return to his job, but he didn’t get in touch with us to contradict it or to tell us he did want to try to return to work if we could find a way to have him do it. Admittedly, we did not try to contact him either. The months passed, and he never did get in touch with us or communicate that he wanted to return. Finally, 8 months later, we decided it was time to terminate him, since he had shown no signs of wanting to come back to work, even if he could. We sent him a letter enclosing the doctor’s report and explaining that we were forced to terminate employment since he could not perform his job, and there was no other job available.

Now Jim is suing us. He claims we did not reasonably accommodate his disability, since we did not engage in an interactive process with him! Do we have any possible defense?

Answer→

Forcing Employees to Litigate in One State, Quirky Question # 153

Quirky Question #153

Our company has independent-contractor consultants in many states. Our headquarters is in Minnesota. We know that we could be sued in any of the states where we have independent contractors, and that many of those states apply their own legal tests to determine whether an individual is an independent contractor or employee. To get a little predictability, and hopefully, minimize our liability, we’d like to include a choice of law provision in our independent contractor agreements designating Minnesota as the controlling law. Will that provision be enforceable if we get sued in a state other than Minnesota?

Answer→

Alcoholism and a Last Chance Warning, Quirky Question # 142

Question:

I work as an HR representative in a medium-sized California business – we employ about 50 people.  Recently, a situation with one of our employees was brought to my attention, and I’ve been asked how to handle it.  We have an administrative assistant with an alcohol problem.  We have reason to believe that her alcoholism was the true reason behind her excessive absenteeism in the middle of last year.  Then, a couple of months ago, she came into work drunk – stumbling around the office and slurring her words.  We immediately sent her home, but we didn’t want to fire her at that point.  Aside from her alcoholism, she fits in very well with our culture and has a great relationship with her co-workers.  We also wanted to be careful to comply with California law regarding “reasonable accommodation” of employees with alcohol problems.  So the next day I met with her and offered her unpaid leave to enter an alcohol rehabilitation program.  She completed the program, and has since returned to work.  However, last week we again started to see signs that her alcoholism may be returning.  She was absent Monday through Wednesday, and when I finally called her on Thursday, I could tell by the way she answered the phone that she was drunk.  On Friday she came in, and I met with her.  She apologized up and down and asked if she could enter rehab a second time.  What should we do? Answer→

Pregnancy Discrimination, Quirky Question # 137

Quirky Question # 137:

Our company recently hired a woman to manage our clean room.  This job is critical to our business and we spent a great deal of time finding someone who we thought would be the right person for bringing a new product to market on a critical time path.  In addition to supervising the employees in the room, she is also required to work alongside them.  Some of what she is required to do involves heavy lifting, and certain steps in the process involve potentially toxic chemicals.  Imagine our dismay when she announced only two weeks into the job that she was three months pregnant.  She didn’t say anything about this during the interview.  We are worried about our legal exposure if she is injured, but also the project may be negatively impacted if she is gone for an extended period of time, and who knows if she’ll come back once the baby is born.  She is an at-will employee.  Can’t we just fire her now before we invest any more time in training her? Answer→

Key California Employment Decisions from 2009

Top 5 Decisions by the California Supreme Court in 2009
Originally published in the Daily Journal, February 5, 2010.

The California Supreme Court decided a number of key cases in 2009 that offer a mixed bag for employers attempting to manage and prevent employment litigation. A review of these decisions is instrumental as they can significantly impact employment policies and practices.

Protecting Legal Audits and Other Attorney-Client Privileged Communications

On November 30, 2009, the California Supreme Court issued its decision in Costco Wholesale Corporation v. Superior Court, S163335, reaffirming the importance of the attorney-client privilege by holding that the privilege protects all communications with outside counsel. Specifically, the Court vacated and rejected the trial court’s ruling ordering an in camera review and redacted disclosure of the “factual” portions of the privileged communication. Answer→