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In Nein v. HostPro, Inc., a Court of Appeal held that the language of the employee’s employment agreement precluded him from recovering commissions following his termination of employment. Plaintiff worked as a sales representative for HostPro for a period of 2 years. He signed an employment agreement that expressly provided that Plaintiff would be eligible for commission pay “so long as [he] remains employed with the Company as a Sales Representative.”
Continue Reading EMPLOYEE HAS NO RIGHT TO POST-TERMINATION COMMISSIONS

Labor Code section 206.5 provides that “an employer shall not require the execution of a release of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of those wages has been made. A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee.” The section also provides that requiring such a release could constitute a misdemeanor.
Continue Reading CAN AN EMPLOYEE RELEASE A WAGE CLAIM? IT DEPENDS: IS THERE A BONA FIDE DISPUTE?

The United States Supreme Court has issued its ruling in the Ricci, et. al. v. Destefano, et. al. case (referred to by the press as the “reverse” discrimination case that U.S. Supreme Court nominee, Sonia Sotomayor, decided with other Court of Appeal justices). Essentially the case stands for the rule that an employer may not manipulate (adjust for race conscious reasons) the results of a legitimate, facially neutral, and job-related promotional examination to obtain a more diverse workforce absent a showing that there is a strong basis for the employer to believe that if it does not manipulate the results it will be exposed to disparate impact liability (unintentional discrimination liability based on the negative effect an otherwise neutral policy or practice may have on a protected class).
Continue Reading AN EMPLOYER’S DILEMMA: DISPARATE TREATMENT VERSUS DISPARATE IMPACT

In the recent case of Gross v. FBL Financial Services, Inc., the United States Supreme Court held that a plaintiff must prove that his/her age was the “but for” cause of the adverse employment action they claim was discriminatory (e.g. demotion). Plaintiff was 54 years old when his employer reassigned him from his position as a claims administration director to a claims project coordinator. Many of his responsibilities in the director position were transferred to one of his subordinates who was in her early 40’s. Although Plaintiff’s compensation was not reduced, he believed that his transfer to the coordinator position was a demotion and filed an age discrimination claim under the federal Age Discrimination in Employment Act (ADEA).
Continue Reading AGE MUST BE THE “BUT FOR” CAUSE FOR ALLEGED EMPLOYMENT DISCRIMINATION

On January 6, 2009 the Department of Labor (DOL) issued Opinion Letter FMLA2009-1-A to respond to a request for clarification regarding employee notification procedures under the Family and Medical Leave Act (FMLA) as discussed in the DOL’s previous Wage and Hour Opinion Letter FMLA-101 (January 15, 1999).  The DOL indicated that it was brought to its attention that some employers had interpreted Opinion Letter FMLA-101 to stand for the proposition that under the FMLA, employers were not permitted to apply their internal call-in policies or discipline employees under their no call/no show policies, provided the employees provide notice within two (2) business days that the leave was FMLA-qualifying, regardless of whether the employee could have practicably provided notice sooner.
Continue Reading DEPARTMENT OF LABOR ISSUES AN OPINION LETTER CLARIFYING AN EMPLOYER’S RIGHT TO ENFORCE ITS CALL-IN POLICIES UNDER THE FMLA