By: Lizbeth V. West, Esq.
The employment lawyers at Weintraub Genshlea Chediak Tobin & Tobin (WGCT&T) want to remind all employers that their OSHA 300a Annual Summary Report must be posted in the workplace by February 1, 2012 and remain posted until April 30, 2012. Pursuant to OSHA’s recordkeeping requirements, the 300a Annual Summary Report must contain the appropriate information from the employer’s OSHA 300 Logs for workplace injuries and illnesses during 2011.
If you thought all the news from the NLRB these days had to do with Posters and Recess appointments, think again. On January 6, 2012, the National Labor Relations Board emphatically rejected an arbitration agreement that required employees to waive their class action rights. This opinion squarely rejected the U.S. Supreme Court ruling last year in AT&T Mobility v. Concepcion, wherein SCOTUS approved of class action waivers in compulsory arbitration agreements.
California courts have long held that agreements that prohibit a former employee from hiring a former co-worker are void. These decisions are based on California’s fundamental public policy (which is codified in Business & Professions Code section 16600) protecting workers’ rights to pursue any lawful trade or profession. With only a few narrow exceptions, California law prohibits such limitations on employment opportunities. Simply put, when two
parties agree that they will not hire a particular group of workers, they limit the opportunities of those workers in an impermissible way.
In 1985 however, a California Court of Appeal drew a distinction between agreeing not hire someone and agreeing not to solicit that same worker. In Loral v. Moyes the Court upheld an agreement by a departing employee not to recruit or solicit his former coworkers. The Court upheld the agreement because, among other things, it restricted only the contracting party’s conduct and did not limit the prospects or employment opportunities of the former co-workers. While the former employee could not solicit any of his former co-workers to come to work for him or her, any of them were free to seek out the former employee for employment. The Loral decision has been criticized for improperly drawing a distinction where none was needed.
Flawed or not, the Loral court’s reasoning led to the widespread use of employee non solicitation agreements in California. In 2009, however, in Edwards v. Arthur Andersen, the California Supreme Court unsettled the Loral case when it held — without overruling Loral — that customer non-solicitation agreements violate Business and Professions Code section 16600. The Edwards decision has led many to forecast the demise of Loral, but so far at least, the rule expressed in Loral remains the law. Where future courts will go on this question remains uncertain.
Loral concerns the enforceability of agreements between an employer and its employees, but what about agreements between competitors that they will not solicit one another’s employees? Recent class action lawsuits alleging that Apple, Inc. and Google, Inc. (among others) violated the law by agreeing not to recruit one another’s employees may answer that question. These lawsuits were filed shortly after the U.S. Department of Justice settled a claim with Google and Apple that agreements not to cold call one another’s workers violated federal anti-trust law. That settlement does not admit wrongdoing, but does commit the companies to not enter into such agreements in the future. The civil complaints (which have yet to be certified as class actions) have been consolidated before in the U.S. District Court in San Jose.
Stay tuned.
The California Supreme Court recently addressed whether insurance claims adjusters qualify for the administrative exemption under California law. (Harris v. Superior Court (Liberty Mutual Insurance Co.).) The Court’s decision in late December 2011, focused on the issue of the “administrative/production worker dichotomy.” Here the Court was looking at whether employees who fall on the “production” side can ever qualify for the administrative exemption.
Continue Reading Misclassfied As A Matter of Law?: Not So Fast Say the Supremes!
Including arbitration provisions in employment agreements or employee handbooks is not a guaranteed way to avoid the courtroom. On January 3, 2012, the California Court of Appeal upheld a decision from the Sacramento County Superior Court holding that an arbitration provision contained in a pre-employment agreement was unconscionable, and, therefore, unenforceable.
Continue Reading California Pre-Employment Arbitration Agreement Ruled Unconscionable
