Lidow v. Superior Court: California Law Applies To Wrongful Termination Claim By Officer of Foreign Corporation


by Sayema Hameed

In a new decision, the California Court of Appeal has answered the following novel question:  Under the conflict of law principle known as the internal affairs doctrine, does California law or foreign law apply to a claim brought by an officer of a foreign corporation for wrongful termination in violation of public policy?  In Lidow v. Superior Court (International Rectifier Corp.) (filed May 23, 2012, Second District, Div. Two, Case No. B239042), the Court of Appeal answered the question as follows: “We hold that under the circumstances alleged here, specifically where a foreign corporation has removed or constructively discharged a corporate officer in retaliation for that person’s complaints of possible harmful or unethical activity, California law applies.”

Does FEHA Support A Retaliation Claim By A Partner Against Her Partnership? The California Court of Appeal Says “Yes.”


by Sayema Hameed

The California Court of Appeal has issued a new decision holding that the California Fair Employment and Housing Act (“FEHA”), Government Code section 12900 et seq., supports a claim for retaliation by a partner against her partnership for opposing sexual harassment of an employee.  Fitzsimons v. California Emergency Physicians Medical Group (filed May 16, 2012, First District, Div. Three, Case No. A131604).

Samaniego v. Empire Today LLC: California Court of Appeal Finds Contractor Arbitration Agreement Unconscionable


by Sayema Hameed

The California Court of Appeal has issued a new decision holding an employee arbitration agreement to be unenforceable: Samaniego v. Empire Today LLC (First District, Div. Three, Case No. A132297; filed 4/5/12; publication ordered 5/7/12).

In Samaniego, carpet installers filed a class action against Empire Today, LLC (“Empire”), a national carpet and flooring business, alleging that Empire misclassified them as independent contractors.  The complaint alleged numerous California Labor Code violations.  Empire appealed from the superior court’s refusal to compel contractual arbitration of the carpet installers’ claims.  The superior court found the arbitration agreement unconscionable under California law.

The Court of Appeal affirmed and held that the employee arbitration agreement was unconscionable and unenforceable under the California Supreme Court case Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83.  The Court of Appeal further held that this issue was governed by California law and that the recent U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. 1740, 179 L.Ed.2d 742] did not change the Court’s analysis.

California DFEH Launches “Intake To Decision” Video Series


by Sayema Hameed

The California Department of Fair Employment and Housing (“DFEH”), which investigates, mediates and prosecutes employment violations under California’s Fair Employment and Housing Act, has launched a new video series, “DFEH Intake To Decision,” to educate employees, employers and the public at large about the employment discrimination complaint process.  “DFEH Intake To Decision” presents a typical sequence of the DFEH’s administrative process for handling an employment discrimination complaint from the initiation of the complaint to the decision.  Based on a fact pattern fictionalized from an actual case of perceived disability discrimination, the seven-part series features: 1) initial contact; 2) intake interview; 3) investigation; 4) conciliation or mediation; 5) accusation; 6) hearing; and 7) conclusion or decision.

You can view the seven-part series on the DFEH’s YouTube channel: http://www.youtube.com/user/CalifDFEH

NLRB Delays Employee Rights Poster Rule


by Sayema Hameed

The National Labor Relations Board (“NLRB”) has delayed implementation of its rule requiring employers covered by the National Labor Relations Act (“Act”) to post a notice in the workplace advising employees of their rights to organize under the Act.  The poster rule, which was originally scheduled to go into effect on January 31, 2012 and then delayed to April 30, 2012, has been the subject of several lawsuits.  On April 17, 2012, the U.S. Court of Appeals for the District of Columbia Circuit issued an emergency injunction against the poster rule, in National Association of Manufacturers v. NLRB, No. 12-5068.  The Court also ordered briefing and oral argument in September 2012.

California Supreme Court’s Brinker Decision Clarifies Employers’ Obligations Regarding Meal and Rest Breaks


by Sayema Hameed

On April 12, 2012, the California Supreme Court issued its long-anticipated decision in Brinker Restaurant Corporation et al. v. Superior Court (Hohnbaum) (Cal. Sup. Ct. Case No. S166350).  This case concerns a class action for failure to provide meal and rest breaks brought by non-exempt employees against defendant Brinker Restaurant Corporation, which owns and operates restaurants throughout California including Chili’s Grill & Bar and Maggiano’s Little Italy.  The Supreme Court’s decision is important in clarifying an employer’s obligations under California law with respect to providing meal and rest breaks to employees.  In a unanimous decision, the Supreme Court held as follows:

California DLSE Revises Wage Theft Prevention Act Notice and FAQs


by Sayema Hameed

On April 12, 2012, the California Division of Labor Standards Enforcement (DLSE) issued revised FAQs regarding the new California Wage Theft Prevention Act of 2011.  The DLSE also issued a revised Notice template for use by employers.  The Wage Theft Prevention Act of 2011, which adds Section 2810.5 to the California Labor Code, went into effect January 1, 2012.  The law requires all employers to provide non-exempt employees, at the time of hire, a written notice that contains specific employment information.

EEOC Issues Final Rule on “Reasonable Factors Other than Age” Under the ADEA


by Sayema Hameed

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a final rule clarifying an employer’s defense against claims under the Age Discrimination in Employment Act of 1967 (ADEA).  The ADEA prohibits employment discrimination against people who are 40 years of age or older.  In addition to prohibiting intentional discrimination against older workers, the ADEA also prohibits facially neutral policies and practices that have the effect of harming older workers more than younger workers (known as “disparate impact”).  The final rule explains the “Reasonable Factors Other than Age” defense to disparate impact claims under the ADEA.

Reminder: Employee Rights Poster Requirement Effective April 30, 2012


by Sayema Hameed

Effective April 30, 2012, most private sector employers will be required to post a notice advising employees of their rights under the National Labor Relations Act (“Act”).  This notice requirement will apply to most private sector employers (excluding agricultural, railroad, airline, and the US Postal Service).  This rule does not apply to very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce.  However, the rule does apply to retail businesses (including home construction) that have a gross annual volume of business of $500,000 or more.  The rule also applies to most non-retail businesses with an annual inflow or outflow across state lines of at least $50,000.  Employers can read the final rule, get more information and download the poster free of charge from the National Labor Relations Board website: https://www.nlrb.gov/poster

Mayers v. Volt Management Corp.: California Court Finds Employee Arbitration Agreement Unenforceable


by Sayema Hameed

The California Court of Appeal has issued a decision holding that an employee arbitration agreement is unenforceable.  In Mayers v. Volt Management Corp. (filed February 2, 2012, publication ordered February 27, 2012, Fourth District, Div. Three, Case No. G045036), the plaintiff filed a lawsuit against his former employer alleging various claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) (“FEHA”).  The defendant employer filed a motion to compel arbitration based on the plaintiff’s agreement to submit employment-related claims to final and binding arbitration, as evidenced by his signed employment application, employment agreement, and acknowledgment of receipt of employee handbook.  The trial court denied the motion to compel arbitration. The Court of Appeal affirmed the trial court’s decision.

The arbitration provisions in the employment application, employment agreement, and employee handbook each required that the plaintiff submit employment-related claims to arbitration pursuant to the “applicable rules of the American Arbitration Association in the state” where plaintiff was employed.  However, Plaintiff was not provided with a copy of the controlling American Arbitration Association (“AAA”) rules or advised as to how he could find them.

The arbitration provisions also failed to identify which set of AAA rules would apply.  They further stated that the “arbitrator shall be entitled to award reasonable attorney’s fees and costs to the prevailing party.”  That language exposed the plaintiff to a greater risk of liability for attorney fees than he would have been if he pursued his FEHA claims in court.  The Court of Appeal, therefore, concluded that the above provisions were unconscionable and unenforceable, and plaintiff could not be compelled to arbitrate his claims against the defendant.