Category Archives: California Questions

Recording Phone Calls, Quirky Question # 85

Quirky Question # 85:

We recently heard a rumor that a member of our software engineering staff is planning to leave and start a software company of his own that may compete with us.  Further, we have heard that he is discussing his plans with others outside of our company using the desk phones in our San Francisco office.  We would like to record his conversations to see what he is planning and whether he is using any of our proprietary information or soliciting any of our employees to join him.  Since we own the telephone system, can’t we record or listen in to his calls? Answer→

California Oddities, Quirky Question # 75

Quirky Question # 75:

We are a California employer and were just hit with a lawsuit by a former employee for acts that supposedly took place almost three years ago.  Our former employee alleges that in January 2006, his supervisor asked him to fire three Asian-Americans who work in an otherwise all Caucasian department.  The former employee alleges that he refused to follow his supervisor’s directive and did not fire anyone.  (Incidentally, this was the same supervisor who hired the employee who now is suing us.)

Our former employee also contends that from January 2006 through January 2008, he received very poor performance evaluations from his supervisor, which he attributes to his unwillingness to fire the three Asian-American employees.  Despite his “belief” about the supposed link between his performance reviews and his refusal to fire anyone, he never complained to our Human Resources Department or anyone on our management team.  He claims he had conversations about his supervisor’s behavior with one of his subordinates, an Assistant Manager who reported to him.

In February 2008, he quit without notice.  He immediately filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging race and age discrimination.  The DFEH conducted an investigation which ended in December 2008, and issued a right to sue letter soon thereafter.  We just were served with the Complaint, some three years after the primary incident on which his lawsuit is based.

First, can he file a race discrimination claim even though he is not Asian?  Second isn’t his lawsuit time-barred?  (I thought these types of lawsuits were limited to a one year statute of limitations.)  Finally, given that the employee did not take advantage of our very extensive internal complaint procedures (designed to address precisely these kinds of issues), doesn’t his failure to utilize this internal complaint process bar his claims? Answer→

Joint Employer Liability, Quirky Question # 70

Quirky Question # 70:

Our company frequently hires workers through employment placement agencies – some on a temporary basis, others for more long-term assignments.  The placement company pays them and withholds employment taxes on their behalf.  We sign contacts saying that the workers are independent contractors and we are not their employer.  We recently terminated one of the workers who was pregnant and she is threatening to sue us as well as the employment agency.  Should we be concerned about potential liability under California law? Answer→

California Non-Competes, Quirky Question # 55

Quirky Question # 55:

We have a highly mobile workforce, and we are concerned about our former employees going to work for a competitor, stealing our customers, and raiding our employees.  We are a technology based company and have developed proprietary information that would give our competitors an edge if our former employees were to use or disclose it to them.  We are based in California and understand that it has a very narrow view of non-competition agreements.  It seems very unfair.  If we put provisions into our contracts to try to stop this from happening, what are the chances that the contract will be enforceable?

[Quirky Question # 55 is another one of our California Questions.  As such, I have requested one of my California colleagues to provide the analysis.  The analysis below was written by Karen Wentzel of our Palo Alto office.  As I’ve described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years.  Karen’s biography can be found at  Her email address is:  If you would like to see other analyses provided by Karen, click on the “View by Topic” box to the left of this posting, and scroll down to “California Questions.”  Click on that category and other California questions will be displayed.

If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.] Answer→

Working Another Job While Taking “Leave,” Quirky Question # 40

Quirky Question # 40:

We have an employee who is claiming she has a serious health condition as a result of work-related stress and has given us a note from a nurse practitioner saying she should be off work for a month.  We don’t believe she has a serious medical condition, in part because we’ve heard that she is working part-time in a similar job.  She has refused to return to work.  Can we simply terminate her employment?

[Quirky Question # 40 is another one of our California Questions. As such, I have requested one of my California colleagues to provide the analysis. The analysis below was written by Karen Wentzel of our Palo Alto office. As I’ve described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen’s biography can be found at Her email address is: If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.] Answer→

Quirky Question # 29, Maintaining Electronic Records

Quirky Question # 29:

Our company has offices in California.  This year we want to improve our document retention practices.  We’ve decided to maintain electronic records of personnel files.  Can we do this in California?  We were told that California law requires the records to be available at the job site.  If this is true, can we switch to an electronic database in California? Answer→

Medical Marijuana Use In the Workplace, Quirky Question # 21 (California Issue)

Quirky Question # 21:

We recently made a job offer to a gentleman as a lead systems administrator in the California division of our telecommunications company.  As part of our routine pre-employment drug testing, he tested positive for marijuana.  However, the applicant presented us with a doctor’s note allowing him to use “medical marijuana” for chronic back pain cause by injuries he suffered while on active duty in the Air Force.  He explained that he’s been using it for years, he only uses it at home, and it has never had a negative impact on his job performance.

It’s our company’s policy not to hire anyone who tests positive for illegal drug use.  But this is the first time we have been presented with a doctor’s note authorizing the marijuana use for medical reasons.  Are we going to be in trouble if we refuse to hire him? Answer→