The Labor & Employment Law Blog

Focusing on legal trends in data security, cloud computing, data privacy, and anything E

Holiday Parties: An HR Nightmare!

Posted in Harassment, Wage & Hour

It’s that magical time of year! Time for hot cocoa, warm fires, glad tidings – and office holiday parties! Office holiday parties are a time for co-workers to relax and for employers to show appreciation to employees, all of which builds office morale. Of course, office holiday parties also come with an extra serving of risk, especially when the employees get a little too, ahem, relaxed. In fact, inappropriate behavior at office parties is so common that a whole movie is based on this premise (coming out in theaters today)! The challenge faced by employers is finding a balance between providing a good time for their employees, while also preventing the horrors that can come in the holiday party environment.

Holiday Spirits 

Let’s get right to a common source of risk, shall we? Alcohol will be present at most office holiday parties. Of course, there’s nothing wrong with responsible adults enjoying adult beverages responsibly. But even just one employee who exceeds their limits can be costly. For example, there is case law suggesting that if an employee is provided alcohol at an office party, becomes intoxicated and is allowed to drive home, that employee may be considered still within “the scope of employment” and the employer may be liable for the employee’s conduct while driving home (including workers’ compensation benefits if the employee is hurt in a car accident). Of course, alcohol also lowers inhibitions, which can lead to increased risk of inappropriate behavior, as discussed below. Some possible ways of reducing the risks associated with serving alcohol are:

  • Serve with a meal, with servers controlling the portions
  • Give employees a limited number of “drink tickets” for the bar
  • Offer to provide transportation home (let employees know in advance that the company will call them an Uber or a cab upon request)

The Gift of Inappropriate Behavior

Most employees have at least reviewed company policies on appropriate conduct in the workplace – but many seem to throw those guidelines out the window when it comes to an office party! In the relaxed atmosphere of a party, especially when alcohol is lowering inhibitions, employees suddenly feel free to say and do things that they otherwise would never say or do in the workplace. Employees often feel free at an office party to make jokes and innuendos that they know are otherwise off-limits. Or the employee who has been harboring a crush on a co-worker is suddenly emboldened by holiday spirit (and spirits) to make his move, but those advances are not welcome. Of course, inappropriate behavior is not limited to sexual harassment! Employees may branch into inappropriate and even prohibited topics of conversation. For example, Supervisor Sally may know that she cannot discuss Employee Emma’s medical leave, but suddenly her inhibitions are lowered and she answers Employee Busybody when asked in a hushed tone, “so, what is the deal with Emma, anyway?” It is important to remember that workplace policies (and laws!) still apply at the office holiday party, and you may want to send out a reminder to that effect before the party, to at least your supervisors. Also, if there are any complaints about conduct at the holiday party, you must investigate and discipline appropriately, just as you would with any workplace complaints.

To Pay or Not to Pay

A common question is whether employees must be paid wages for time spent at the office holiday party (which could mean overtime wages). The answer hinges on whether attendance is mandatory. If you require employees to attend the party, then you will be required to pay wages, including overtime where appropriate. However, if you make attendance optional, no wages need be paid.

Best wishes and glad tidings as you navigate the tricky waters of the HR nightmare that is an office holiday party – and remember, we’re here if you need us to help recover the morning after!

Now Available! Weintraub Tobin’s 2017 Labor and Employment Seminar and Training Schedule

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

Weintraub Tobin’s 2016 Labor and Employment Seminar and Training schedule is now available.   Click here for a copy of the schedule.2017 Seminar Series Logo

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814

Neutral Solutions: Mediation

Posted in Employment Contracts and Agreements, Labor Law, Reductions in Force, Retaliation and Wrongful Termination

The Neutral Solutions Team at Weintraub Tobin specializes in Mediating employment disputes both pre and post litigation. Employment disputes are some of the most contentious and aggressively litigated cases in federal and state courts. The employee is adamant that the employer treated him or her unjustly and violated the law, and the employer reasonably believes that it acted fairly and the employee’s claim is without merit. Based on the disruption and negative impact this type of aggressive and protracted litigation can have on the lives and businesses of those involved, mediation is a smart and worthwhile alternative. For more information, please visit our Employment Mediation Page.

White House Calls for Restrictions to Curb Non-Compete Agreements

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Trade Secrets and Competition, Wage & Hour

Chuck-Post-07_webThe White House has issued new information about its policy position on non-competes, including a call to action from President Obama to state and federal lawmakers to curb and limit non-compete agreements.  To read the Fact Sheet, please click here.

Neutral Solutions: Workplace Investigations

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, Retaliation and Wrongful Termination

The Neutral Solutions Team at Weintraub Tobin specializes in conducting independent investigations into complaints of misconduct in the workplace. At Weintraub Tobin, we take pride in the top-notch investigations conducted by our experienced group of attorney-investigators.  Our attorneys have conducted hundreds of investigations for private companies, for-profit companies, non-profit companies, cities, counties, and state agencies, school districts, community college districts, and other special districts. For more information, please visit our Workplace Investigations page here.

EEOC Issues Guidance on National Origin Discrimination

Posted in Discrimination, Harassment, Labor Law, New Legislation and Regulations

Perhaps because of the unfortunate social tensions arising after the U.S. Presidential election which include some inappropriate threats against immigrants and people of color, the EEOC issued its Enforcement Guidance on National Origin Discrimination last week.  The Enforcement Guidance replaces the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination (2002).

National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII) which applies to employers with 15 or more employees, employment agencies, the federal government, state and local government employers, and unions. Under Title VII, discrimination in employment based on national origin, race, color, religion, and sex is illegal.  Title VII also prohibits employers from retaliating against people who oppose workplace discrimination or who participate in an EEO complaint process.Beth-West-15_web

What is National Origin Discrimination?

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.   For example:

  • An individual’s place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).
  • A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

Generally, national origin discrimination refers to:

  • Treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group;
  • Treating an employee less favorably because of the perception he or she belongs to a certain ethnic group or nationality (e.g. that the person is Hispanic/Latino even if he or she is not in fact Hispanic/Latino).
  • Using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.
  • Treating someone less favorably at work because he or she associates with (for example, marries) someone of a particular national origin.

Harassment on the Basis of National Origin is Also Prohibited.

Title VII prohibits harassment on the basis of national origin.  Unlawful harassment is conduct that is severe or pervasive enough to create a work environment that an individual perceives as hostile, and a reasonable person would find intimidating, hostile, or abusive.   According to the EEOC, harassment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or accent. Employer liability can result from the actions of supervisors, employees, or non-employees, such as clients, customers, or commercial contacts.

Takeaway for Employers.

Just as in the case of any other protected class, employers must take proactive steps to prevent and promptly respond to any form of discrimination or harassment on the basis of national origin.

A copy of the EEOC’s Guidance on National Origin Discrimination can be found at

Texas Federal Court Permanently Blocks Persuader Rule

Posted in Employee Privacy Rights, Employment Contracts and Agreements, New Legislation and Regulations, Retaliation and Wrongful Termination

As previously reported here, earlier this year a federal district court in Texas issued a preliminary injunction preventing the Department of Labor (“DOL”) from enforcing the new Persuader Rule, which was to go into effect as of July 1, 2016. Last week, the court issued a ruling converting its preliminary injunction into a permanent one, which now imposes a nationwide ban on implementation of the new rule.

By way of a refresher, the new Persuader Rule, proposed in March earlier this year, sought to require employers to report highly detailed information regarding their “indirect persuader activities.” Such indirect activities potentially included attorneys advising employers on how to respond to employees attempting to unionize or what actions might discourage unionization. Several experts in the district court proceedings provided evidence that the new reporting requirements effectively restricted employers’ ability to obtain any advice concerning unionization-related issues. Prior to the new rule, employers were simply required to report “direct persuader activities,” which only included activity where there was direct contact with employees to persuade them regarding their rights to unionize.

To read the rest of this article, please visit the HRUSA blog at

Employers, Give Thanks! Texas Court Blocks New Overtime Rule

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Uncategorized, Wage & Hour

Thanksgiving comes two days early for employers across the country who anticipated the new Department of Labor (“DOL”) overtime Final Rule creating significant pre-holiday expenses.  For those employers, who have been living in denial or under a rock for the last six months, the DOL Final Rule increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually).  Although California exempt employees expected a slightly smaller increase, given that California exempt employees’ minimum salary level is currently $800 per week ($41,600 annually), California and national employers alike viewed the DOL Final Rule as an attack on their businesses.

In late September, a lawsuit was filed in the Eastern District of Texas by the Nevada attorney general and joined by 20 other states, including Arizona, Texas, Georgia, Nevada, Utah, and others.  Shortly afterwards, over 50 business organizations also filed a lawsuit challenging the Final Rule.  Both lawsuits ask for preliminary and permanent injunctions preventing the Final Rule from taking effect.  The Court consolidated the actions and heard oral arguments on the preliminary injunction on November 16, 2016.

Today, the Court granted the Plaintiffs’ motion for a preliminary injunction.  The injunction applies nationwide and prevents the DOL from implementing the Final Rule pending further order of the Court.  The Court granted the preliminary injunction on the basis that (1) the Final Rule exceeded the DOL’s rule making authority; (2) the Plaintiffs will suffer irreparable harm, including increased costs and detrimental effect on government programs and services; (3) the DOL failed to articulate any harm in delaying the implementation of the Final Rule; and (4) the injunction serves the public interest because it will maintain the status quo for the Court to render a meaningful decision on the merits without forcing employers and states nationwide to incur the expense and burden of complying with a potentially invalid rule.

The Court supported its decision on the basis that the Final Rule created an improper salary-based test rather than focusing on the duties employees perform to determine exempt status.  The Court found that Congress unambiguously expressed its intent for employees doing “bona fide executive, administrative, and professional capacity” duties to be exempt from overtime, but that Congress did not intend the exemption to depend on the employees’ salary.  The court held that although the DOL has the authority to define the types of duties that may qualify an employee for the exemption, nothing indicates that the DOL had the authority to raise the minimum salary level such that it supersedes the duties test. In essence, the Court held that because the new rule increased the salary so significantly, it constituted a fundamental change to the statutes operations – effectively creating a de facto salary-only test.

What Employers Should Do

Employers across the country may be wondering “What should I do now”?  If you are an employer that planned to reclassify your employees based only on the salary increase, you can now postpone (and possibly cancel) that reclassification at least until the Court issues a permanent injunction or until the preliminary injunction is appealed (and overturned).  If you are an employer that used the impending salary increase to reevaluate your exempt employees’ job duties and reclassify those employees who were unlikely to be truly exempt, we encourage you to reconsider postponing or cancelling the reclassification and to consult with legal counsel to determine the best approach for your business.  Misclassifying employees can expose your business to significant risk of unpaid wage and penalty liability.  The time may still be right for you to reclassify those employees!  After all, it may be only a matter of time until the injunction is lifted and the Final Rule is enforceable against all employers.

The Court’s preliminary injunction opinion and order can be found here:

New Marijuana Laws And The Workplace

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination

Last week, voters in seven states passed new laws relating to marijuana use, both recreational and medical, which has left many employers wondering what this means to them. Can employers still enforce “zero tolerance” drug use policies? Do they have to allow employees to use marijuana in the workplace or during work hours, if they have a medical prescription? Some, but not all, state marijuana laws include specific provisions guiding employers in their handling of these issues. Take, for example, two of the laws passed last week, in Florida and Nevada.

To read Florida and Nevada’s new marijuana laws, visit the HRUSA blog at