The Labor and Employment Law Blog : Labor & Employment Lawyer & Attorney : Weintraub Genshlea Chediak Tobin & Tobin Law Firm : Sacramento California : Labor & Employment Law Blog

A California appellate court was recently faced with the issue of when the statute of limitations runs on a claim for trade secret misappropriation against a third party when the plaintiff’s trade secrets are stolen and sold to that third party. On May 30, 2008, the appellate court issued its opinion in Cypress Semiconductor Corporation v. Superior Court (Silvaco Data Systems) and held that the statute of limitations on a cause of action for trade secret misappropriation begins to run when the plaintiff has reason to suspect that the third party knows or reasonably should know that the information in its possession is a trade secret. The appellate court held that the third party’s actual state of mind did not matter for purposes of the running of the statute of limitations.

Silvaco develops and licenses electronic design automation software. This software allows its customers to design their own software products. Silvaco created a software product known as SmartSpice and maintained that its source code was a trade secret.

In late 1998, a former employee working for a competitor incorporated the SmartSpice trade secrets into a product called DynaSpice. Silvaco began to suspect in 2000 that its trade secrets had been misappropriated and sued both the former employee and the competitor. However, Silvaco did not take any action to notify any of its competitor’s customers who had licensed DynaSpice for their own use.

In August 2003, Silvaco and the competitor entered into a settlement agreement and stipulated judgment. The competitor agreed to stop licensing DynaSpice and to inform its customers that the DynaSpice software contained Silvaco’s trade secrets and that they should terminate their use of DynaSpice. Cypress Semiconductor, one of the competitor’s customers, learned of the judgment in late August 2003.
 

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In his first significant act as President in the labor and employment arena, President Obama effectively overturned the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. by signing the Lilly Ledbetter Fair Pay Act ("Ledbetter Act") into law this Thursday. The main thrust of the Ledbetter Act is that it “resets” the statute of limitations for wage claims based on discrimination each time an employee receives a paycheck affected by the alleged discriminatory practice.

Background
 

Lilly Ledbetter worked for her employer, Goodyear, for 19 years. She accused Goodyear of gender discrimination under Title VII on the grounds that, throughout her almost 20 career, she was consistently paid less than male employees who were similarly situated. The Supreme Court found that Ledbetter’s Title VII action was time-barred; holding that the statute of limitations starts running under Title VII when the employer makes the original discriminatory pay decision. The Court rejected Ledbetter’s argument that her claim was “refreshed” each time she received a paycheck affected by Goodyear’s discrimination.

The Ledbetter Act

The Ledbetter Act “resets” the statute of limitations for wage claims based on discrimination (in any form recognized by federal law) each time an employee receives a paycheck affected by the alleged discriminatory practice. Moreover, the Act defines “unlawful employment practices” broadly to encompass any practice that affects an employee’s compensation.

Bottom Line

Given the speed of which this new administration was able to push through this fairly substantial legislation, employers should anticipate continued robust efforts from Washington to further bolster employee protections in the coming months.

What Steps Should Employers Take?

While it will likely take some time for the courts to interpret the new law and provide guidance for employers to take steps to avoid litigation, there are a few initial steps employers should consider taking now:
 

• Examine compensation policies to ensure they do not discriminate on the basis of a protected class or protected activity.
• Work with employment counsel to structure and conduct a self-audit of compensation practices and discuss best practices for retention and destruction of compensation records.
• Train supervisors and managers regarding proper and improper considerations when making discretionary compensation decisions.

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In 2002, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by one of its employees, Gene Hughes. A member of Metro’s human resources department asked plaintiff Vicky Crawford (a 30-year Metro employee) whether she had witnessed any of Hughes’ “inappropriate behavior.” Crawford, who was not the subject of the investigation and who had not previously complained of sexual harassment by Hughes, responded that Hughes had actually engaged in inappropriate behavior with her, which she described in detail. A few months after the investigation was completed, Crawford was terminated allegedly for embezzlement.

Crawford filed suit against Metro, alleging that Metro retaliated against her in violation of Title VII for her participation in the sexual harassment investigation. To state a prima facie claim for retaliation under Title VII, an employee must show that she either "opposed" a discriminatory employment practice or "participated" in a statutorily covered activity under Title VII. Metro moved for summary judgment arguing that Crawford could not sustain a claim for retaliation because she neither “opposed” a discriminatory employment practice (since she had never complained about Hughes’ conduct) nor had she “participated” in a statutorily covered activity under Title VII. Crawford argued that although she never reported Hughes’ conduct, her response to Metro’s human resources employee during the investigation constituted “protected activity” under Title VII’s prohibition against retaliation because she “opposed” the harassment by describing it in response to her employer’s questions.

The United States District Court for the Middle District of Tennessee entered summary judgment in favor of Metro and the Six Circuit Court of Appeal affirmed. The Supreme Court granted certiorari.

In finding for Crawford, the Supreme Court found that the primary objective of the anti-retaliation provision under Title VII is avoiding harm to employees. The Court held that for the purposes of Title VII’s anti-retaliation provision, an employee can “oppose” discrimination in the workplace by responding to an employer’s question about the discrimination at issue. The Court made clear that in order to "oppose" a discriminatory act, an employee need not engage in “active” or “consistent” resistance to it. In fact, Justice Souter who wrote for the majority, said that the required opposition would encompass “someone who has taken no action at all to advance a position beyond disclosing it.”

Justice Alito wrote a separate concurring opinion emphasizing his understanding that “the Court's holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive behavior.” Justice Alito stressed that the Court's holding should not extend Title VII protection to an employee's “silent opposition” to harassment or to mere conversations with a co-worker “at the proverbial water cooler” that may be subsequently relayed to the employer.
 

 WHAT IS EXPECTED FROM THE RULING?

It is anticipated that the Supreme Court’s holding in Crawford will now open the door for retaliation claims by investigation participants claiming they were “retaliated” against during or after an investigation. The lesson for employers is to treat all information it receives from employees (whether through a report/complaint, or in response to questions during an investigation) seriously and act upon it appropriately. Employees who participate in a workplace investigation should not suffer any adverse employment action because of such participation.

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The recent economic lull has lead to increased layoffs across different industries. Employers may be required to give advance notice to affected employees and certain government entities. There are Federal and State laws which discuss the issue of notice owed to employees before large layoffs. The Federal law is known as the Worker Adjustment and Retraining Notification or 'WARN' Act. California's version of the WARN act (AB 2957, the 'baby' WARN Act) contains additional provisions employers should be aware of. The baby WARN Act applies to "mass layoffs", "terminations" and "relocations" at "covered" establishments. There are no regulations interpreting the California version which makes it difficult to understand.

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Quan v. Arch Wireless involved the use of employer-provided pagers in the Ontario Police Department in California. The official city policy stated that the department had the right to review messages officers sent using the pagers. The policy clearly stated that there was no privacy for any electronic messages at work, including email and text messages. Supervisors, however, told employees that if they paid overage charges themselves, the messages would not be audited. Quan, who is a member of the SWAT team, sent many sexually explicit text messages to his wife during work hours. He also neglected to pay the overage charges. The police department eventually read the text messages in connection with an audit for text message overage charges. The text messages ultimately lead to disciplinary action against Quan. Quan and other employees sued the department for violation of their constitutional right to privacy. At trial, the department relied upon its formal computer use policies and procedures, which Quan had signed a written acceptance, to justify its actions. Quan argued that his supervisor had implemented a different informal policy causing him to have a reasonable expectation that his text messages would not be reviewed. The Ninth Circuit held that this “operational reality” trumped the “formal written policies.” Thus, employer’s review of the employee’s text messages violated the employee’s privacy rights, and that of his wife.

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Kevin Gagnon, doing business as “Mister Computer,” alleged that his former customer, Asset Marketing Systems (AMS), infringed his copyright in six computer programs that he wrote for AMS by continuing to use and modify them without his consent and that AMS misappropriated trade secrets contained in the programs’ source code. After AMS terminated its contract with Gagnon, it hired seven of Gagnon’s twelve employees to provide directly to AMS the same services they previously provided to AMS through Gagnon. The Ninth Circuit affirmed summary judgment in AMS’s favor, holding that the non-compete covenants contained in the employment contracts of Gagnon’s former employees were unenforceable under Cal. Bus. & Prof. Code §16600.

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In Edwards v. Arthur Andersen, LLP, Case No. BC294853 (August 7, 2008) the California Supreme Court holds that non-solicitation of customer agreements are per se unenforceable unless they fall within the statutory or other exception permitted under the law. California law has long protected the rights of employees to lawfully pursue any trade or profession. For more than 100 years California law has invalidated any agreement between an employer and an employee which purports to limit or restrict an employee’s ability to work in their trade or profession following the employment. Many other states permit such “non-compete” agreements between employers and employees as long as the restraints on competition are reasonable. In the Arthur Andersen case, the California high court rejected arguments that more narrow agreements – those that limit a former employee’s ability to solicit the former employer’s customers for some specified period of time – did not run afoul of Business and Professions Code §16600 and thus, were valid.

California’s Business and Professions Code §16600 provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void, except as provided in this Chapter [§§16600-16602.5].”
 

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Nineteen former employees who signed releases after being terminated in a RIF and who did not file EEOC charges may proceed in joining the class bringing ADA claims against their former employer. The plaintiffs alleged the waivers were invalid under the Older Workers Benefit Protection Act (“OWBPA”) because they misrepresented the number of employees selected for termination, failed to accurately list those selected for termination, were not written in a manner reasonably calculated to be understood by the average employee, and did not disclose the criterion used to select employees for termination. The plaintiffs also claimed they were not given the requisite 45 days to decide whether to sign. If the plaintiffs’ allegations were true, the waivers would be invalid; therefore the court denied the employer’s motion to dismiss based on valid waivers. The fact that nineteen employees did not file claims with the EEOC also was not a bar. Those employees may properly “piggyback” on the timely filed charges of two other plaintiffs who alleged classwide discrimination. Such charges gave sufficient notice to the employer of the classwide discrimination claims alleged in the complaint.

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In Bernard v. State Farm Mutual Automobile Insurance, plaintiff sued his employer for constructive discharge and "breach of covenant of good faith and fair dealing," claiming it misrepresented its sales program requirements. Plaintiff claimed the company had a termination for cause only policy. However, he had signed the following at will agreement: "You or State Farm have the right to terminate this Agreement by written notice delivered to the other or mailed to the other's last known address." The termination provision also provided for termination upon specified notice. The court found that this provision negated any arguments that the company needed good cause for termination.

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Plaintiff Varisco was certified by the California Division of the State Architect (“DSA”) as a Class-1 Inspector. On January 30, 2004, Gateway Science entered into a written agreement with Varisco which stated that Gateway Science would pay Varisco for providing DSA Inspection Services to the Los Angeles Unified School District. In November of 2004, Gateway Science sent Varisco a letter terminating the relationship because Varisco refused to sign a new contract with Gateway Science, and refused to provide Gateway Science with various documents that it requested. Varisco sued Gateway Science for damages under various theories, arguing that he had actually been an employee instead of an independent contractor.

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Introduced in September by Barack Obama, SB 2044 places stricter requirements on who can be classified as an independent contractor rather than an employee. If independent contractors are moved into the category of employees, employers will be required to pay higher taxes on those individuals. Additionally, such legislation would increase potential liability concerns for employers. The legislation is still pending.

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The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership ruled that individuals may not be held personally liable for retaliation claims under the FEHA.

If you read the FEHA, section 12940(h) makes it unlawful for any “employer, labor organization, employment agency, or person” to retaliate against an employee. Read literally, this would appear to impose individual liability on a “person” who retaliates. California intermediate appellate courts have wrestled with the issue for years. However, in a decision split 4 to 3 among the justices, the California Supreme Court has finally decided the matter.

As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course. In October 2000, The Lodge hired a new beverage director, Jean Weiss. That is when the alleged problems began. Weiss and the kitchen manager developed a habit of telling jokes and making sexual remarks about women and employees known as “cart girls.” They also made fun of Jones’ sexual orientation. Jones complained about this treatment. Jones alleged that Weiss became hostile and threatened to fire Jones if he reported the matter to human resources. Jones did complaint to the HR manager and Weiss subsequently retaliated by writing him up for a laundry list of performance problems. Finally, Jones filed a DFEH complaint, resigned, and sued for sexual orientation discrimination against his employer and for retaliation against his employer and his supervisor, Weiss, individually.
 

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In Meacham v. Knolls Atomic Power Laboratory, an employer used a "matrix" method to carry out a reduction in force. The employer's method ranked its employees based on objective factors (i.e. performance and years of service) and subjective factors (i.e. flexibility and criticality). The employer then conducted a disparate impact analysis for the lowest scoring employees for several protected categories. However, no analysis was done for the employees' ages. 30 of the 31 workers laid off were over the age of 40.
28 of the laid off employees filed suit against the employer under the ADEA. The jury awarded the employees $6 million and the Second Circuit affirmed.
In an earlier case, Smith v. City of Jackson, the Supreme Court held that the ADEA permits "disparate impact" claims where an employment practice adversely harms older workers even without intent to do so. In Smith, the Court noted that the "reasonable factors other than age" provision in the ADEA was an important safeguard against employer liability, but it did not decide who had the burden of persuasion on that issue.
The Supreme Court agreed to decide one simple question in the Meacham case: does the employee or the employer have the burden of persuasion regarding the "reasonable factors other than age" issue? The Supreme Court held that the employee must establish the disparate impact, and the employer must prove that any disparate impact was based on reasonable factors other than age.
 

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In Sprint v. Mendelsohn, the U.S. Supreme Court held that admission of "me too" evidence in discrimination cases is fact based and "depends on many factors...." Plaintiff, who was 51 years old and the oldest employee in her department, was laid off during a company-wide reduction in force. She subsequently sued Sprint for disparate treatment based on her age under the Age Discrimination in Employment Act (ADEA).
The district court excluded evidence from former employees over the age of 40 who were also terminated in the same RIF (the "me too" evidence) because they did not work in plaintiff's group and they did not work for any of the same supervisors. The Tenth Circuit reversed the district court's ruling as to the "me too" testimony and remanded the case for a new trial.
The Supreme Court granted certiorari on the issue of the admissibility of "me too" evidence. The Court held that whether evidence of discrimination by other supervisors is relevant in an individual ADEA case "is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case." They then remanded the case back down to the district court.
 

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In Hicks v. KNTV Television, Inc., plaintiff, a white male, worked as a news anchor for defendant-employer. Plaintiff's contract was not renewed when it expired. Instead, defendant hired a black male to replace plaintiff. Plaintiff filed suit for discrimination, alleging that the employer did not renew his contract because it was being pressured to hire a minority. The employer argued that it did not discriminate against plaintiff and that plaintiff's contract was not renewed because his on air personality was too "aloof, distant, standoffish, unapproachable and anchor-like." The trial court found for the employer and plaintiff appealed.
On appeal, plaintiff argued that he was more objectively qualified for the job than his replacement. Plaintiff had more journalism experience, had more experience as an anchor, and had more practical experience in the market. The Court of Appeal, however, rejected these arguments. The Court focused on whether the employer's proffered reason for not renewing plaintiff's contract was pretextual. In its analysis, the Hicks court stated that subjective criteria have become more "critical" to making employment decisions; commenting that subjective characteristics like "common sense, good judgment, originality, loyalty, and tact," are "essential to an individual's success in a supervisory or professional position."
 

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Two African-American employees were denied promotions in the defendant's food processing plant that were ultimately awarded to two Caucasians. Among the proof of discrimination they offered was the fact that their supervisor used the term "boy" in referring to them. The Court of Appeals held that this term was insufficient to show racial bias.

Held: The Court of Appeals erred in laying down a per se rule that the term "boy" cannot constitute evidence of racial bias. Instead, that term first would have to be understood in the context in which it was used, including its historical usage, its usage in the workplace, the familiarity between the parties, etc. On remand, the Eleventh Circuit nevertheless reached the same result as before, finding that the plaintiffs' evidence of discriminatory intent remained insufficient as a matter of law.
 

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Two African-American employees claimed that the owner of the company pointed a sawed-off shotgun at them and made threatening, racially-biased remarks. These events occurred while the employees were witnesses to a confrontation between the owner and a business agent. The employees claimed they experienced apprehension of imminent harmful contact and as a result felt forced to resign. They sued for race discrimination under Title VII and Pennsylvania state law. The district court granted summary judgment.

Held: The Third Circuit affirmed, rejecting plaintiffs' argument that the combination of a racial slur and death threat is direct evidence of discrimination. The court found that plaintiffs failed to show they were treated as they were because of race, rather than because they were witnesses to the confrontation. The court concluded that the events were insufficient to show harassment, much less constructive discharge.
 

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California’s Department of Labor Standards Enforcement (DLSE) has released two opinion letters (OpLtrs) that should please employers by sanctioning their use of alternate, electronic wage payment methods. The OpLtrs approve the use of payroll debit cards and “Money Network checks” for the payment of wages under the California Labor Code, provided that:

• The programs make the full amount of wages available to employees on their regularly scheduled payday without penalty or reduction;
• Employees’ participation in the program is voluntary; and
• The programs provide a sufficiently extensive network of ATMs and other locations at which employees may access their accounts.
   

The DLSE addressed the use of two types of payroll services: payroll debit cards and a nationwide check cashing service. The programs are voluntary and employees may elect, at any time, to receive their wages by direct deposit into an account at their own bank or credit union.

Before implementing either type of program, employers should work with their legal counsel and make sure they meet all the requirements outlined by the DLSE.
 

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Under California Labor Code section 351, tips are the "sole property" of the employees for whom they are left. As such, "employers" may not "collect, take, or receive" employee tips.

The issue in this case was who is the "employer" for purposes of section 351? At Starbucks, "shift supervisors" shared tips with other baristas. A Superior Court Judge in San Diego decided that the shift supervisors were not entitled to the tips at issue because they are "supervisor employers" for the purposes § 351. He ordered Starbucks to pay $100 million in back tips and interest to the non-supervisor baristas who shared the tips with their shift supervisor baristas. It should be noted that the shift supervisors worked side-by-side with the non-supervisor baristas performing many of the same tasks.
 

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State Court:

In Brinker Restaurant Corp. v. Superior Court (Hohnbaum), a group of hourly non-exempt employees brought a class action against the restaurant employer claiming that the employer failed to comply with meal and rest period obligations and also required employees to work off the clock. The employees specifically claimed that: 1) the employer’s practice of having employees take “early lunches” shortly after starting their shift and then requiring them to work another five to ten hours without receiving another meal period violated Labor Code section 512(a) and the wage orders; 2) they were not provided their rest periods between their second and fourth hour of work, and were not provided the rest period before the first meal period; and 3) they were required to work off the clock when they were clocked out for their meal periods.

The employees argued that the wage and hour violations were amenable for class treatment because the employer’s non-compliance with wage and hour requirements could be determined by time card records and the employer’s policies and practices. The trial court agreed and granted class certification. The employer petitioned for a writ of mandate to the court of appeal. The court of appeal issued an unpublished decision which went up to the California Supreme Court. The Supreme Court vacated the court of appeal’s original decision and transferred the matter back to the court of appeal for reconsideration. It was on reconsideration that the court of appeal concluded that the class certification order from the trial court was erroneous and must be vacated because the trial court failed to properly consider the elements of the employees’ claims in determining whether they are susceptible to class treatment. In discussing the elements of the employees’ claims, the court of appeal handed down the following encouraging pronouncements:
 

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This case concerns the lawfulness of defendant Costco Wholesale Corporation’s formula for computing overtime compensation on semi-annual bonuses paid to hourly employees. The trial court determined that defendants’ bonus overtime formula for the class of employees who qualify for the maximum base bonus (plaintiffs) violates California law, and ordered use of a different formula. The court concluded that defendant’s formula violated neither California nor federal law, and reversed the judgment with directions to enter judgment for defendant.

a. The Base Bonus.

Costco pays a formula-based bonus, based on paid hours, to long-term hourly employees. To be eligible for the bonus, paid in April and October, these employees must: (1) have been paid a specified number of hours for continuous service -- 8,000 hours (approximately four years) for those hired before March 15, 2004, and 9,200 hours (approximately 4.6 years) for those hired after that date; (2) generally be at the top of their pay scale; and (3) have been employed by defendant on April 1 for the April bonus and October 1 for the October bonus. The maximum semi-annual base bonus amount is $2,000 for those with less than 10 years of service, $2,500 for those with 10 to 14 years of service, $3,000 for those with 15 to 19 years of service, and $3,500 for those with 20 or more years of service.

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According to Union proponents, the biggest obstacle to a modern organizing campaign is management delay tactics. In a traditional organizing campaign, union representatives meet with bargaining unit employees (i.e. all the mechanics at a car dealership) and talk with them about union representation. The union then attempts to secure signed authorization cards from the employees. If the union can show that a majority of the employees in the bargaining unit favor union recognition, the employer may voluntarily forego an election and recognize the union. If, however, the employer refuses or the card-check process generates at least 30%, but not majority, employee support, the union may petition the NLRB for a secret ballot election administered by the NLRB. Unions plead for majority card-check rules because they claim that employees suffer at the hands of underhanded management tactics during traditional Board elections. “These delays make it too easy for employers to intimidate and coerce workers, including by dismissing them for organizing. And this in turn diminishes employee interest in unions and thus undercuts the right to collective bargaining they are supposed to enjoy.” However, unions still have the same success rate in traditional elections (approximately 60%) as they did in 1965.

Organized Labor’s pleas were answered when the Employee Free Choice Act (EFCA), which was co-sponsored by then Senator Barack Obama, was introduced. Under the EFCA, unions would no longer have to go through the NLRB traditional election process to gain recognition. Instead, a union must obtain signed authorization cards from a majority of employees in the bargaining unit. Additionally, the EFCA would invoke binding interest arbitration if labor and management cannot agree upon the first contract within nine months. Once in arbitration, a government appointed arbitrator would decide the parties’ obligations in the first contract. Because of the results of the November 2008 national elections, we are likely to see some sort of change in 2009. Barack Obama promised to sign EFCA. Should the EFCA pass, unions estimate that they will be able to organize millions of new workers. Below are some of the more notable features of the EFCA in detail:
 

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Traditional labor law in this country has essentially been a non-issue over the past decade. Today unions represent 12% of all American workers (7.4% in the private sector), down from a high of 35% in 1955. However, thanks to the recent dramatic shifts in Washington, this trend may soon be changing. Labor law in the private sector is governed, in large part, by the National Labor Relations Act (“NLRA”). The NLRA guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. The National Labor Relations Board (“NLRB”) is is an independent federal agency created by Congress to administer the NLRA. The NLRB, which normally has five sitting members, currently has only two current members. The Democrats have refused to confirm any of President Bush’s appointees, hoping that a Democrat presidential victory will lead to more favorable appointments. As such, President-elect Obama, who is openly pro-labor, will be called upon to appoint three members immediately, and will be able to influence significantly the Board’s agenda and decision making. The new Board is likely to revisit and overturn a number of important rulings. More importantly, the Board will play an important role in interpreting any new legislation that Congress might pass amending the NLRA, including the Employee Free Choice Act.

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On September 25, 2008, the ADA Amendments Act of 2008 was signed into law by President Bush. It becomes effective January 1, 2009. This new law is designed to undo several Supreme Court decisions and thereby broaden the number of individuals who can seek protection under the Americans with Disabilities Act (ADA). The amendments include the following highlights:

a. Employers must assess whether an individual is disabled without considering corrective measures, i.e. medical supplies or equipment (except for glasses or contacts); use of assistive technology; auxiliary aids or services; and learned behavioral or adaptive neurological modifications.

b. An impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity while active.

c. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

d. The list of "major life activities" is expanded to include, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working; as well as “major bodily functions” such as the function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

e. The "regarded as disabled" standard is lowered to prohibit an action prohibited under the ADA because of an actual or perceived physical or mental impairment, whether or not such impairment is perceived to limit, or actually limits, a major life activity. The “regarded as disabled” standard does not apply to impairments that are transitory and minor. A “transitory” impairment is one with an actual or expected duration of 6 months or less.

f. Employers may not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the employer, is known to be related to the position and is consistent with business necessity.

Because the ADA Amendment Act brings the ADA more in line with California’s disability laws under the Fair Employment and Housing Act (FEHA), California employers can expect to experience few changes in their administration of disability accommodation policies. Employers should continue to comply with the requirements of FEHA.
 

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In January 2008, President Bush signed into law the expansive amendments to the FMLA which provide greater benefits to employees who have family members in the armed services. The new law became effective immediately.
 

On November 17, 2008, the DOL issued final regulations addressing the new military family leave as well as updating existing FMLA regulations.
 

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Effective January 1, 2009, Senate Bill 940 creates new wage and hour requirements for temporary service employers. Along with adding section 210.3 to the California Labor Code, SB 940 also amends sections 203, 203.1, 204, 210, 215, 220, and 2699.5 of the Labor Code. Existing law requires that employers pay their employees twice during each calendar month. SB 940 creates a special set of requirements for temporary service employers with employees' working week-to-week or day-to-day. Employees on week-to-week assignments are now required to be paid weekly, while employees working day-to-day must be paid daily. Further, employees assigned to clients engaged in a trade dispute must be paid daily. These new requirements do not apply to employees who are assigned to a client for more than 90 consecutive calendar days.
 

Because existing law imposes civil and criminal penalties for wage violations, SB 940 also creates state-mandated local programs to enforce these existing civil and criminal penalties for violations of the new temporary employee wage requirements.
 

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California passed SB 28 which makes it illegal to read or send text messages while driving in California. The law goes into affect on January 1, 2009. The bill imposes a $20 fine for a first offense and $50 for repeat offenders using any electronic devices to read or send messages. California motorists using cell phones have been required to use hands-free devices since July 2008 when speaking on the phone, and drivers under age 18 can't use any electronic devices.  Employers should conform their workplace policies accordingly.

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AB 10 was passed and clarifies that computer professionals who meet the computer professional exemption requirements outlined in Labor Code section 515.5, are exempt if they are paid no less than $36 per hour if paid on an hourly basis, and if no less than $75,000 per year for full-time employment if paid on a salary basis. Such salary must be paid at least once a month at a monthly rate of no less than $6,250.

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