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  • New Year and New Laws

    A new year has come and with it a slew of new laws affecting employers in California.  The courts and legislature were busy last year.  We created a short summary reviewing some of the more significant changes that will impact employers in 2014.

    Enjoy the reading, and we hope you have a great 2014!

    Located in San Jose, California, the employment law lawyers of Phillip J. Griego & Associates, provide quality legal representation for both the employee and the employer. The firm was founded by attorney Phillip J. Griego in 1987, and its employment law attorneys have over 50 years

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

    Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Employer Can Terminate an Employee for Lying During Investigation

    The Fair Employment and Housing Act (FEHA), specifically Gov’t Code §12940(h), makes it an unlawful employment practice for an employer to discharge a person because the person testified or assisted in any “proceeding under this part.”  So what is an employer supposed to do when an employee lies or is uncooperative during a sexual harassment investigation?  According to the Sixth Appellate District, it is not unlawful to terminate an employee because, in keeping with analogous authority interpreting Title VII of the Federal Civil Rights Act of 1964, FEHA §12940(h) does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim.

    The appellate court also rejected the employee’s termination in violation of public policy claim and his defamation claim.

    The case can be reviewed here.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • 3 Things That Can’t Wait Until Next Year

    Well, the California legislature is at it again. Governor Brown signed several laws that change how employers do business in California. Most of the new laws are effective January 1st and require immediate action, so don’t put this off!

    1. Update Your Handbook

    You must now add “gender expression” and “genetic information” to the list of protected characteristics in your EEO and Anti-Harassment policies.

    You must now maintain an employee’s health insurance benefits at the same level of benefit during an employee’s Pregnancy Disability Leave.  Handbooks must be modified to reflect the new requirement.

    2. Revise or Create Offer Letters & Commission Agreements

    All employers must now provide the terms of employment in writing prior to commencing work.  In addition to standard information regarding pay rates, the offer letter must specify overtime rates, the regular paydays, and the contact information for the company’s Workers’ Compensation Carrier.  You will also need to provide written notice when any of the designated items changes.

    12/29/11 UPDATE

    The Labor Commissioner has drafted a template employers should use to comply with new Labor Code Section 2810.5(a).  You can download the template here.

    Beginning January 1, 2013, all employees paid on a commission basis must receive written copies of the commission plan specifying “the method by which commissions shall be computed and paid.” Given the complexity of many commission plans, do not wait until the end of 2012 to contact your employment counsel to review the plan and ensure your bases are covered.

    3. Rethink Your Hiring Practices

    The penalties for willfully misclassifying employees as independent contractors just went up.  This is an extremely high-risk area; so consult with knowledgeable counsel about your workforce status.

    Stop conducting financial background checks on applicants or employees until you speak with knowledgeable counsel regarding revisions to California’s privacy laws.  A new law limits which employers can conduct financial background checks and which employees can be the subject of such background checks.

    There are many more laws coming into effect in 2012. If you would like to receive a more detailed review of the changes, please send us an email at update@griegolaw.com with the subject line: “Send me the update.”

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • DFEH Announces Biggest Administrative Award Ever

    On September 12, 2011, the DFEH issued the following press release:

    State Department of Fair Employment and Housing Achieves Historic Victory
    Electrical Supply Company Ordered to Pay $846,300 for Firing Cancer Survivor

    ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

    “This historic administrative victory underscores the Department’s commitment to vindicating the rights of Californians victimized by workplace discrimination,” said DFEH Director Phyllis Cheng.

    Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext.

    “California’s Fair Employment and Housing Act (FEHA) provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively,” added Director Cheng.

    After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

    Medical leaves are among the most complicated issues for employers and employees.  Several laws can impact the leave, the employer’s obligations and the employee’s rights.  Knowing how those laws interact will help you make informed decisions about leaves of absences, and hopefully avoid costly litigation.

    If you, or someone you know, has a question about a medical leave of absence, contact an attorney familiar with leave of absence laws.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

    idual member of the firm does not establish an attorney-client relationship.

  • Can I Get My Fees, Please?

    The Ninth Circuit Court of Appeals says the answer may be up to the trial judge.  In  a Fair Housing Act suit, the Ninth Circuit held that the district court properly relied on its own knowledge of customary rates charged by attorneys and its own experience concerning reasonable and proper fees in making an award of attorney fees.

    After the plaintiff won a similar state case, the parties settled their federal dispute.  The plaintiff asked the court to grant its motion for attorneys’ fees.  The court awarded fees, but substantially less than the amount sought.  The trial judge believed the plaintiff should have settled the case earlier and wasted time and money with unnecessary arguments.  The plaintiff appealed.

    The Ninth Circuit concluded that under Lohman v. Duryea Borough, 574 F.3d 163 (3d Cir. 2009), the district court properly considered settlement discussions for the purpose of deciding a litigant’s “success,” and therefore what would constitute a reasonable award.  The Ninth Circuit believed the trial court was in the best position to discern what work was unnecessary and could not find any abuse of discretion in deducting the hours spent on unnecessary motions and arguments.

    Many lawyers and clients want to make every conceivable argument to increase the chance of prevailing.  This is often a wise decision, but lawyers need to be mindful that if a court determines a particular argument or motion was unnecessary or a waste of time, the client may end up footing the bill without hope of recouping those costs from the other side.  I’m a firm believer in ensuring my clients are an integral part of putting together the strategy for the case.  Ingram v. Oroudjian is a good reminder that attorneys and clients need to pick their battles carefully, or at least be mindful of the resources that are being spent.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Fair Employment and Housing Commission Is Being Eliminated

    Governor Jerry Brown issued the 2011/12 May Budget Revision (May Revise) in an attempt to reduce the  multi-billion dollar deficit.  As part of the revised budget the Governor eliminates and/or consolidatse many governmental programs.  Under the revised budget, the Fair Employment and Housing Commission (FEHC)—the civil rights agency with administrative adjudication and regulatory responsibility—will be eliminated effective January 1, 2012.  The Department of Fair Employment and Housing (DFEH)—the remaining civil rights agency with intake, conciliation, mediation and prosecutorial responsibility—will continue to operate.

    What does this mean for employers and employees? While the DFEH can still receive, investigate and even prosecute claims of discrimination, the parties will no longer be able to pursue claims before the Fair Employment and Housing Commission.  Those that have litigated in both forums realize that the FEHC is oftentimes a lower-cost alternative to litigating discrimination cases.  While some feel that the FEHC was too employee-friendly, a review of published decisions indicate that the amounts awarded to successful claimants before the FEHC were oftentimes significantly lower than similar cases decided by a jury.

    Other actions put in place by the revised budget include:

    • Accelerate End of American Recovery and Reinvestment Act Task Force
    • Eliminate    the    California    Privacy    Security    Advisory    Board
    • Eliminate the Health Care Quality Improvement and Cost Containment Commission
    • Eliminate    the    Colorado    River    Board
    • Eliminate    the    Salton    Sea    Council
    • Eliminate    the    State    Mining    and    Geology    Board
    • Eliminate Nine Advisory Committees and Review Panels at the Department of Fish and Game
    • Eliminate    the    Commission    on    Emergency    Medical    Services
    • Eliminate the California Health Policy and Data Advisory Commission (CHPDAC)
    • Eliminate    the    Healthcare    Workforce    Policy    Commission
    • Eliminate    the    Rural    Health    Policy    Council
    • Eliminate    the    Public    Health    Advisory    Committee    (PHAC)
    • Eliminate the California Medical Assistance Commission (CMAC)
    • Eliminate    the    Rehabilitation    Appeals    Board    (RAB)
    • Eliminate    the    Continuing    Care    Advisory    Committee    (CCAC)
    • Eliminate the Office of the Insurance Advisor (OIA) within the State and Consumer Services Agency
    • Eliminate the Office of Gang and Youth Violence Prevention
    • Eliminate    California    Emergency    Council    (CEC)
    • Eliminate    the    California    Law    Revision    Commission
    • Eliminate    the    Commission    on    Uniform    State    Laws
    • Eliminate the Office of Privacy Protection within the State and Consumer Services Agency
    • Eliminate    the    Unemployment    Insurance    Appeals    Board
    • Eliminate the Occupational Safety and Health (OSH) Standards Board
    • Reduce the Labor and Workforce Development Agency
    • Eliminate    Child    Care    Monitoring    Support
    • Transfer Support of the Governor’s Commission on Employment of People with Disabilities to the Department of Rehabilitation
    •  The    Office    of    Secretary    of    Education    has been eliminated
    • The    Inspector    General    for    the    American    Recovery    and Reinvestment Act has been eliminated
    • No travel by state employees is permitted unless mission critical

    In total, the proposals in the revised budget are supposed to save $82.7 million ($41.5 million General Fund).

    You can download a copy of the state agencies that are slated to be eliminated or reduced

    You can also download the entire Revised Budget Plan.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.
    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Supreme Court Taking an About Face on Statute of Limitations?

    In a somewhat surprising decision, the United States Supreme Court held that an employee who does not file an EEOC charge within the 300 or 180 required by Title VII may still assert a disparate-impact claim challenging the employer’s later application of previously time-barred practice as long as he alleges every element of disparate-impact claim.

    You may recall that in 2007 the U.S. Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co, Inc. 550 U.,S. 618.  In Ledbetter the Supreme Court held that an employer’s decision with respect to setting pay is a discrete act of discrimination, and that the relevant period of limitations begins to run when the act first occurs.  After several attempts at modifying the law through legislation, in 2009 President Obama signed the “Lilly Ledbetter Fair Pay Act of 2009” which added the following provisions to Title VII:

    (3)(A) . . .[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

    (B) In addition to any relief authorized by . . .42 U.S.C. 1981a, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

    The Ledbetter Act deems each paycheck issued pursuant to a discriminatory compensation decision or pay structure an independent, actionable act. It applies retroactively “to all claims of discrimination in compensation under Title VII . . . that are pending on or after [May 28, 2007].”

    In a case that did not deal with “discrimination in compensation” the Supreme Court carved out an exception to the strict filing deadlines by deciding when the statute of limitations begins to run on a disparate impact claim.  In Lewis v. City of Chicago, Illinois, the court held that

    What that requires depends on the claim asserted. For disparate-treatment claims — and others for which discriminatory intent is required — that means the plaintiff must demonstrate deliberate discrimination within the limitations period. See Ledbettersupra, at 624–629; Lorancesupra, at 904–905; Rickssupra, at 256–258; Evanssupra, at 557–560; see also Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam)But for claims that do not require discriminatory intent, no such demonstration is needed. Cf. Ledbettersupra, at 640; Lorancesupra, at 904, 908–909. Our opinions, it is true, described the harms of which the unsuccessful plaintiffs in those cases complained as “present effect[s]” of past discrimination. Ledbettersupra, at 628;see also Lorancesupra, at 907; Chardonsupra, at 8; Rickssupra, at 258; Evanssupra, at 558. But the reason they could not be the present effects of present discrimination was that the charged discrimination required proof of discriminatory intent, which had not even been alleged. That reasoning has no application when, as here, the charge is disparate impact, which does not require discriminatory intent. [emphasis added]

    The court was not swayed by the City’s argument that the Court’s holding “will result in a host of practical problems for employers and employees alike.”  Under the Court’s ruling employers may face new disparate-impact suits for practices they have used regularly for years, thereby depriving the employer of evidence essential to their case.  According to the Court:

    Truth to tell, however, both readings of the statute produce puzzling results. Under the City’s reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact. Equitable tolling or estoppel may allow some affected employees or applicants to sue, but many others will be left out in the cold. Moreover, the City’s reading may induce plaintiffs aware of the danger of delay to file charges upon the announcement of a hiring practice, before they have any basis for believing it will produce a disparate impact.

    The court ultimately concluded that it was not their “task to assess the consequences of each approach and adopt the one that produces the least mischief. [Their] charge is to give effect to the law Congress enacted. By enacting §2000e–2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.”

    Lewis v. City of Chicago, Illinois will likely be seen as a victory for employees, as many plaintiffs’ counsel will creatively plead their time-barred disparate treatment case as a disparate impact case.  This may cause significant problems for employers who adopted facially neutral policies that have lasting effects on employees because evidence regarding the basis for the initial decision may no longer be available.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • DOL Assists Employers in Understanding Disability Laws

    The United States Department of Labor announced a new “Advisor” on their website that helps employers determine which federal disability nondiscrimination laws apply to their business or organization as well as the various responsibilities faced by companies that receive financial assistance from the federal government.

    According to the DOL, “The Advisor will provide you with a customized list of federal disability nondiscrimination laws that may apply and links to detailed information that will help you understand your requirements under these laws.”  The Advisor may also be useful to job applicants and employees who are interested in learning about which laws might apply.

    The Advisor addresses the following laws:

    • Title I of the Americans with Disabilities Act of 1990 (ADA)
    • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
    • Section 188 of the Workforce Investment Act of 1998
    • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
    • Section 503 of the Rehabilitation Act of 1973, as amended
    • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

    It does not tackle Section 501 of the Rehabilitation Act, Title III of the ADA, Workers’ Compensation Laws or any state or local disability nondiscrimination laws.

    The Advisor can be accessed at http://webapps.dol.gov/elaws/odep/q1.aspx.

    The Advisor appears to be a good start for employers who want to know which disability laws apply to them, but don’t forget that State or local disability nondiscrimination laws may have stricter requirements or greater applicability.  Employers and employees should consult with counsel familiar with disability discrimination and accommodation issues to ensure they are complying with all applicable laws.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Arbitrator Not Allowed To Determine Validity of Arbitration Agreement

    Another California Appellate Court recently held that the court, not the arbitrator, can determine whether an arbitration clause in an employment agreement is valid. Because California courts have frequently refused to enforce arbitration agreements in the employment context, many employers have started inserting provisions that require the arbitrator, not the court, to determine the validity of the arbitration agreement.

    In Murphy v. Check ‘n Go of California, Inc. (2007) 156 Cal.App.4th 138, the court refused to uphold a similar provision, finding that “While the language of the agreement [regarding arbitration of unconscionability issues] could not be clearer, plaintiff’s alleged assent to this provision was vitiated by the fact that it was set forth in a contract of adhesion, i.e., a standardized contract drafted by the stronger party and presented to the weaker party on a take it or leave it basis [citation].” Now, a second appellate court came to the same conclusion. See Ontiveros v. DHL Express 08 C.D.O.S. 8379.

    The decision is not all that surprising, as arbitration agreements have taken a tough beating in the last decade. Under current laws many, if not most, arbitration agreements between employees and employers in California are unenforceable. Those that are enforceable usually require the employer to pay for the cost of arbitration. In many cases the costs of arbitration are greater than the amount the plaintiff would have been awarded in court.

    I know many employers desire arbitration agreements, but I don’t know that arbitration is necessarily a wise decision. There used to be two main benefits to arbitration: 1) Arbitration was considered less costly and less time-consuming and 2) Employers could avoid a runaway jury.

    Recent court decisions have eradicated the first benefit by requiring employers to pay for almost 100% of the arbitration costs and allowing virtually full discovery in the arbitration proceedings. Now, instead of allowing a judge or jury to decide the case for free or for nominal jury fees, the employer must pay an arbitrator between $450 to $750 per hour or more to review the case, rule on any applicable motions and decide the merits of the case. Our office handled one particularly contentious arbitration where the client paid over $200,000.00 in arbitrator fees alone.

    As to the other main benefit (avoiding the runaway jury), I’m not convinced this is sufficient justification to throw money at an arbitrator. Some assume that a jury tends to award more to a plaintiff than an arbitrator, but I have not seen any statistics supporting this assumption. Even if it is true, keep in mind that only 1% of the cases that are filed in court go all the way to trial. This statistic is essentially the same in arbitration. That means you are paying an arbitrator’s fees to avoid the 1% of cases that go to trial. Also keep in mind that, at least in many counties, more than half the cases that go to trial result in a defense verdict. So, really, the employer is paying the arbitrator’s fees in 100% of cases to avoid less than one-half of 1% of the cases that might possibly result in a runaway jury verdict.

    There are several other justifications for arbitration, but I can’t say I am convinced by any of them. Some argue that arbitrators are more likely to rule in favor of the employer because the employer is more likely to appear before that arbitrator in the future. Having spoken with numerous arbitrators and people that conduct arbitration on a frequent basis I have never heard of an instance where the “repeat-player” effect had any impact on a case. Because many lawyers still hold to this belief, or for some reason do not want to litigate in arbitration, some lawyers may avoid cases with enforceable arbitration agreements. Therefore, having an enforceable arbitration agreement may help decrease the number of lawsuits that actually get filed against the company. This is just an assumption and it’s not likely we could ever really find out how many cases were NOT filed as a result of an arbitration clause.

    Drafting an enforceable arbitration agreement is possible, but be careful what you wish for. Keep in mind that in order to be enforceable with respect to most of the claims an employee might bring, the employer will have to pay for the arbitration fees and afford the employee the same protections the employee would have in court. Employers should carefully considering the consequences before using arbitration agreements.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Senate Defeats Fair Pay Restoration Act: Ledbetter Reigns

    In 2007, the United States Supreme Court ruled that a female employee who was paid less than her male counterparts failed to timely file her discrimination suit because the disparate pay was instigated years before she actually found out about the pay differential. The court, in Ledbetter v. Goodyear, rejected the plaintiff’s argument that the statute of limitations begins to run each time the employer issues a new paycheck with the disparate pay. Instead, the court decided that the discrimination occurred when the employer initially decided to pay the female employee less
    than the male employees, even though the female employee had no idea she was being paid less.

    The House immediately passed a bill to change the law, but the Senate version languished significantly longer. The Senate bill was defeated yesterday in a 56-42 vote (the bill required 60 votes to pass). According to the Wall Street Journal, “The outcome wasn’t a surprise, as Democrats acknowledged ahead of time that it was unlikely they would overcome Republican opposition.” As a result, the Ledbetter case continues to be the law. As it currently stands, employees who believe they are the victim of discrimination must file an administrative claim with the EEOC within 180 days (300 days in California) of the initial discriminatory decision, not within 180 days of the effect of the discriminatory act.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.