The Labor & Employment Law Blog

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More Pitfalls For Misclassifying Employees

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

The National Labor Relations Board (“Board”) recently created another potential pitfall for employers who misclassify employees as independent contractors.  Most employers know that, if they misclassify an employee as an independent contractor, they may be subjected to fines, penalties and other types of liability.  Such employers also can be sued by the misclassified employee and potentially liable for unpaid overtime wages (among other things).  Additionally, taxing authorities may seek from the employer withholdings that should have been, but were not, applied.

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

To learn more about Brendan J. Begley and his practice, visit his attorney bio at

Neutral Solutions: We Help You Connect The Pieces

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

The Neutral Solutions Team at Weintraub Tobin specializes in training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.  For more information, please visit our Trainings page here.

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Does Your Service Animal Need a Stand Up Desk? Discrimination and Accommodation of Employees, Customers and Third-Parties

Posted in Disability Discrimination, Discrimination, Employment Contracts and Agreements, Labor Law

Summary of Program

The Labor and Employment Group at Weintraub Tobin is pleased to offer this very informative training session that will help business owners, human resource professionals, and managers to both comply with legal record keeping requirements and also prepare and maintain effective defensive documentation.

Most business owners know that customers and employees may need to be accommodated from time to time for various reasons. Often this is because of an employee’s disability, medical condition or a condition present on property owned by the business and open to the public. It is important for business owners and employers to understand and comply with how the courts and various federal and state regulatory agencies define accommodations, as well as learn what their rights and obligations are regarding: (1) engaging in the interactive process; (2) providing reasonable accommodations; and (3) removing barriers to access.

Program Highlights

This informative seminar will provide an overview of the many accommodations business owners, employers and Human Resources professionals may be forced to consider, who should be accommodated, and how to engage in an interactive process to determine an appropriate accommodation. Topics will include:

  • How to Determine Who is Entitled to an Accommodation
  • How to Engage in the Interactive Process and How to Know When to Initiate the Initial discussion
  • The Various Protected Classes and/or Activities Entitling an Employee to Accommodation (including things like disability, religion, and illiteracy, to name a few)
  • Service Animals in the Workplace
  • How to Effectively Document the Accommodation
  • Recent Developments in Accommodation Law
  • A primer on Title III “Public Accommodation” Liability
  • Disabled Access Cases
    • ADA Mills Are Still Active
    • How Alterations to Your Property May Affect Your Obligations Under the ADA
    • It’s Not Just the ADA

Date:  November 17, 2016
Time:  9:30 a.m. – 11:30 a.m.


8:30 am – 9:00 am  – Registration & Breakfast

9:00 am – 12:00 am  – Seminar

Webinar: This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.


Weintraub Tobin

400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.  Please bring your parking ticket with you to the 11th floor.
Approved for three (3) hours MCLE.   This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

There is no cost for this seminar. 
*This seminar will be limited to 75 in-person attendees.  

To RSVP for this event, please visit our events page here: or RSVP by e-mailing Ramona Carrillo at

States And Congress Challenge New Overtime Rules

Posted in Employment Contracts and Agreements, Wage & Hour

As we continue marching toward D-day on the Department of Labor’s new overtime rules kicking in, the rules are facing last minute challenges from all angles.  First, states and private businesses pushed back.  In late September, 21 states jointly filed a lawsuit in the Eastern District of Texas asking that the court block the DOL from implementing the rules.  The same day, a group of over 50 businesses jointly filed a similar lawsuit of their own in the same court.  A week later, the U.S. House of Representatives passed a bill that would push the rules’ start date out another six months, from December 1, 2016 to June 1, 2017.

The New Exempt Requirements

Under the new DOL rules, the minimum salary threshold for “white collar” exempt employees will effectively double.  Effective December 1, 2016, employees will have to earn $955 per week, which translates to $47,476 annually, to be properly classified as exempt.  In addition to doubling the salary threshold on the white collar exemptions, the new law will increase the salary necessary to retain the “highly compensated employee” exemption.  The HCE exemption currently applies to employees who earn at least $100,000 annually and “customarily and regularly” perform one or more of the exempt duties performed by employees who qualify for one of the white collar exemptions.  Under the new law, these same employees will need to earn at least $134,004 annually.

To account for inflation and cost-of-living increases, the new law also establishes a mechanism for automatically updating the salary and compensation levels described above every three years.

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

Don’t forget to register! Shauna N. Correia will be speaking at the Superior Court Boot Camp

Posted in Uncategorized

Weintraub Tobin shareholder, Shauna Correia, will be speaking at the Superior Court Boot Camp on October 14 in San Francisco. To register for this event, click here:

Shauna Correia is a shareholder in the firm’s San Francisco office. She is an accomplished negotiator and experienced trial attorney. Shauna represents businesses in a broad range of litigation matters in both California and Nevada. Many of Shauna’s clients also rely on her for her advisory and risk-management capacities, and her ability to find ways to reduce exposure or avoid litigation.

University Student Assistants Are Employees Under NLRA

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

On August 23, 2016, the National Labor Relations Board (NLRB) issued a decision in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW.  The NLRB decided that graduate and undergraduate student assistants are common law “employees” within the meaning of the National Labor Relations Act (NLRA).  The NLRB has flip-flopped on this issue several times starting in 1974 (The Leland Stanford Junior University (214 NRLB 621) which first held student workers should be excluded from the statutory definition of “employees”, overruled in part in 1999 with regard to student interns, residents and fellows at a Boston Medical Center teaching hospital (330 NLRB 152). In 2000, the Board first held that university graduate student assistants were employees under the Act. In 2004, the Board decided in Brown University that graduate student assistants were not “employees”.

The impact of the NLRB’s most recent Columbia University decision is that student assistants are “employees” and, as such, they are eligible to organize and bargain collectively under federal labor law.  The Board expressly overruled its prior Brown University and Leland Stanford decisions.

To read the rest of this article, visit the HRUSA blog here:

Ninth Circuit Weighs In On Class Action Waivers

Posted in Employment Contracts and Agreements

A new decision from the U.S. Court of Appeals for the Ninth Circuit continues to leave employers uncertain as to the enforceability of class action waivers in arbitration agreements.  The Seventh and Ninth Circuits are on one side of the issue, and the Second, Fifth, Eighth, and Eleventh Circuits on the other.  The Seventh and Ninth Circuits are following the National Labor Relations Board’s (NLRB) position that class action waivers infringe on an individual’s rights under the National Labor Relations Act (NLRA).  The new Ninth Circuit decision makes it more likely that the United States Supreme Court will grant review and end the battle between the circuits.  In the interim, class action waivers will not be enforced in federal courts in Illinois, Indiana, Wisconsin, California, Arizona, Nevada, Oregon, Idaho, Montana, Washington, Alaska, and Hawaii, the states within the Seventh and Ninth Circuits’ jurisdiction.

The Ninth Circuit, in Morris v. Ernest & Young, LLP, No. 13-16599, 2016 U.S. App. LEXIS 15638 (9th Cir. Aug. 22, 2016), became the second appellate court to invalidate mandatory class waivers in arbitration agreements.  The Seventh Circuit was the first circuit to invalidate a class or collective action waivers in an arbitration agreement in Lewis v. Epic Systems Corporation, 823 F.3d 1147 (7th Cir. 2016), where the court held that when an employer conditions continued employment upon the signing of a class or collective action waiver in an arbitration agreement, the agreement violates the NLRA and is unenforceable under the Federal Arbitration Act (FAA).

To read the rest of this article, please subscribe to the HR USA blog here:

Illinois’ “Child Bereavement Leave Act”

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

On July 29, 2016, the Illinois General Assembly adopted SB 2613 – the Child Bereavement Leave Act (“Act”) which provides eligible employees with the right to take bereavement leave for the death of a child.  The law went into effect immediately.

Covered Employers.  The Act defines covered employers the same way the federal Family and Medical Leave Act (FMLA) defines employers.  Therefore, a covered employer is one that is engaged in commerce or any industry affecting commerce, and employs fifty (50) or more employees for each working day of twenty (20) or more calendar weeks during the current or preceding calendar year.

Eligible Employees:  The Act defines eligible employees the same way that the FMLA defines employees.  Therefore, an eligible employee is an employee who has worked for the covered employer for at least 12 months (which does not have to be consecutive); has worked for the covered employer at least 1,250 hours during the 12 consecutive months preceding the start of bereavement leave; and works at a worksite where there are at least 50 employees within a 75-mile radius.

Leave Entitlement.   An eligible employee is entitled to use a maximum of two (2) weeks (10 work days) of unpaid bereavement leave to:

  • Attend the funeral or alternative to a funeral for a child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Bereavement leave must be completed within sixty (60) days after the date on which the employee receives notice of the death of the child.

Read the rest of the article here:

NLRB Revises Back Pay Formula

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

In a 3-1 ruling, the National Labor Relations Board (“Board”) recently revised its back pay formula and radically departed from its traditional remedy for compensating employees who have been unlawfully terminated. The Board’s ruling now supports employees’ rights to recover search-for-work and interim employment expenses, regardless of whether the employees have interim earnings and regardless of the amount in question.

The case involved King Soopers, Inc. who employed the complainant who was a barista at a Starbucks kiosk in a King Soopers grocery store located in Denver, Colorado. The employee had been asked by a store manager to assist with bagging groceries. She refused and questioned whether she should be doing the work, given that she belonged to a different union. The employee was suspended for five days and then terminated for gross misconduct after a meeting with store managers and her union. In its decision, the Board affirmed the finding that King Soopers violated the National Labor Relations Act (“NLRA”), which protects an employees’ right to engage in protected, concerted activity. It found that she was within her rights to question whether the work she was being assigned belonged to a different union.

To read the rest of this article or others similar to it, please visit the HRUSA blog here:

Top Reasons to Mediate Employment Disputes

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

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

2.  There is No Adjudicator to Determine Fault or Liability.

Mediation is about resolving disputes on terms the parties agree to.  Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.Beth-West-15_web

3.  Mediation Saves Money.

Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.

4.  Mediation is Efficient and Saves Time.

Courts are impacted and trial dates are usually set out years into the future.  As such, parties will spend many years fighting their case before they ever get before a jury.  On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.

5.  Mediation is Confidential.

Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.

6.  Mediation Allows for Candid Communication.

Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute.  They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.

7.  Mediation Allows for Creative Problem Solving.

Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.

8.  Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.

In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees.  Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee.  By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.

9.  Mediation is Final – No Appeals.

Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.


For more information, please visit my bio at  For information on our Employment Mediation services, please visit our website at