By:       Scott M. Plamondon

UPDATED 12/21/2011: Based on the date on which the case was submitted at oral argument, the California Supreme Court was required to render a decision in this matter on or before February 6, 2012. On December 2, 2011, however, the Supreme Court agreed to accept additional briefing regarding whether its decision will be applied retroactively. The additional briefing likely will cause the Court’s decision to be delayed. Based on the current briefing schedule it appears that we could be waiting for a decision until April 2012.

Original Post:  

On November 8, 2011, the California Supreme Court heard oral argument in Brinker Restaurant Corp. v. Superior Court of San Diego County (“Brinker”). As you probably know, the Brinker case has been pending before the California Supreme Court since October 22, 2008. Now, by hearing oral argument on this case, the California Supreme Court has effectively signaled that it will publish a decision within the next 90 days.

Continue Reading UPDATED! Brinker: The Wait Is Almost Over

laborDriving across the San Francisco Bay Bridge still provides one of the most beautiful views of any City I have seen in the United States. However, once off the bridge, you witness business owners besieged by a Frankenstein type laboratory of unfriendly employment laws. There is little doubt in my mind that, but for the view from the bridge, San Francisco would be Barstow, with nary a business in sight due to anti-employer laws. While these awful employment laws are good news for surrounding employer friendly counties, such as San Mateo, Santa Clara, Marin, and Contra Costa, we must remain vigilant to ensure these toxins do not get dumped in the Bay to spread like the plaque they are.

Continue Reading San Francisco: Incubator for Bad Employment Laws

By:       Lizbeth V. West, Esq.

On August 30, 2011, the National Labor Relations Board (“NLRB”) adopted a rule that would require certain employers, including non-union employers to post a notice to employees explaining their rights under the National Labor Relations Act (“NLRA”). The implementation date was originally set for November 14, 2011. However, due to a number of lawsuits challenging the rule, the implementation date was delayed and the NLRB announced that the rule would not go into effect until January 31, 2012. 

Continue Reading Non-Union Employers Beware – You Are Likely Required To Post The NLRB’s New “Employee Rights” Poster

Probably not.  The case law of many states is littered with what are sometimes referred to as “rolodex” cases.  These cases typically involve a departing employee who takes a rolodex (or other collection of customer or vendor information) that was created while on the former employer’s payroll.  The former employer claims the rolodex is company property.  Customer lists or compilations of customer information (such as rolodexes) have long been recognized as potential trade secrets.  But what happens to those same contacts if they are listed on an individual employee’s LinkedIn or similar website?  Can a recruited employee (who would not be permitted to take their rolodex) rightly consider contacts listed on their LinkedIn page to be theirs rather than their employer’s?  This scenario has been the source of litigation.  (See, for example, TEK Systems, Inc. v. Hammernick, CV00819, filed March 2010, which has since settled.) 

The argument is fairly simple.  Is anything listed on a LinkedIn or similar social media website secret or is it now part of the public domain?  Many companies have responded to this possibility by seeking to prevent employee’s use of LinkedIn or restricting the identification of company customers on the website.  Many commentators fear that such restrictive policies may result in babies going out with the bath water.  Effective sales professionals need to network and barring them from use of evolving social media may hamstring those professionals in doing what they were hired to do – making and establishing a network of contacts that are willing to do business with them.

In Sausko Group, Inc. v. Courtney (WL *3613855), a federal judge in New York found a defendant could not be sued for taking client lists because the information could be collected in just a few minutes on Facebook or LinkedIn.  Information that is readily obtainable through an internet search is, by definition, not secret.  Given the existence of the large volume of customer identity and contact information that is now available on the internet, the idea that lists of customer identity and contact information are trade secret may be obsolete.  Of course, a particular determination that specific customer information constitutes a trade secret will depend on the circumstances.  Where social media messaging systems have been used as part of company policy or where information is linked to more than customer identity and contact information, the claim that the information constitutes a trade secret may be stronger.

By:       Lizbeth V. West, Esq.

Most employers are aware of the federal law known as the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) which is designed to protect those who serve in the armed forces from discrimination and retaliation. However, many California employers are unaware that section 394 of the California Military and Veterans Code also prohibits employers from discriminating against members of the armed forces (“Section 394”). Therefore, an employee who believes he/she has been discriminated against based on his/her military status has the right to pursue a claim under one or both laws.

Continue Reading When Can a Supervisor be Held Individually Liable for Discriminating Against an Employee Based on His or Her Military Status? It Depends on Whether Federal or California Law Applies