When people begin to think about cool weather, hot chocolate, Thanksgiving, and this year the constant announcements about El Niño, only one thing always comes to my mind……..

Employer Handbook Season! 

Yes, the end of the year always brings a flurry of revisions to employer handbooks.  This year is no different.  Business owners, general counsel, and human resources professionals throughout California and the County always look at Q4 and ask themselves “when was the last time your employee handbook was updated?”  We are assisting many clients right now with their handbooks so that they are poised for a January 1 launch. With the constant changes in California (including the dozens of new bills just signed by the Governor), employer handbooks that are more than a year old can quickly become a huge liability. Continue Reading The Three “H”s of Fall: Halloween, Hot Chocolate, and Handbooks

Sunday, October 11, 2015 was the deadline for the Governor to act on bills that were passed by the legislature.

There were two bills the Governor rejected that are seen as key victories for employers.  They are:

AB 465 was vetoed. This bill sought to bar mandatory employment arbitration agreements.  This would have caused lawsuits to increase and would have driven up litigation costs for California’s employers.  In vetoing AB 465, Brown correctly called the bill “a far-reaching approach that has been consistently struck down in other states” for conflicts with federal law.

Brown also vetoed SB 406, an unwise expansion of the state’s unpaid family leave policy. SB 406 sought to expand the pool of workers who can take up to 12 weeks off to care for grandparents, grandchildren, siblings and parents-in-law.  The Governor indicated this proposal also would conflict with federal law and would potentially require employers to provide up to 24 weeks of family leave in a year.  What are we France?!?

Not all news was good news.  Watch this blog for updates and further discussion about the Governor’s actions on this year’s legislative agenda.

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.

Program Highlights:LaborEmpSeminarLogo

  • Postings, notices, and document retention under various federal and state laws.
  • Effective employment policies and other documents relating to the employment relationship (e.g. arbitration, confidentiality and proprietary information, and severance & release agreements).
  • The documents an employee’s attorney will likely rely on in an employment lawsuit and the importance of creating good contemporaneous documentation so as to avoid producing damaging evidence later:
    • Wage and hour documentation
    • Investigation documentation
    • Attendance and leave of absence documentation
    • Training documentation
    • Performance documentation
    • Discipline and termination documentation

Date:   October 15,  2015

Time:   9:30 a.m. – 11:30 a.m.

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.

Summary of Program

The Labor and Employment Group at Weintraub Tobin is pleased to offer this informative seminar that will discuss recent cases to help business owners, human resource professionals, and managers avoid liability and effectively hire employees as well as carry out disciplines and terminations.

Program Highlights

  • Training your supervisors to be your best defense.
  • Effective hiring practices.
  • What can you ask during an interview?
  • Should you review an applicant’s social media before making a hiring decision?
  • An employer’s right to discipline employees; is it limited?
  • Effective policies and documentation to reduce liability.
  • Beware of “Progressive Discipline”
  • Did the employee quit or was [s]he “constructively terminated?” (What does that mean?)
  • What type of conduct can constitute “retaliation” and under what law?
  • Can an “at-will” employee be wrongfully terminated?
  • What constitutes “wrongful termination?”

Date:   September 17,  2015

Time:   9:30 a.m. – 11:30 a.m.

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.

On August 31st, the California Legislature passed a new bill (AB 465) to ensure that waivers of employment rights and procedures, often through arbitration agreements, are made voluntarily and not as a condition of obtaining or keeping employment. As the Wall Street Journal recently reported, the number of companies using arbitration agreements in the workplace has risen dramatically from 16% in 2012 to 43% in 2014. Critics of such forced waivers of workplace claims contend that they eliminate important procedural guarantees of fairness and due process provided by our judicial system. The bill’s author, Assembly Member Roger Hernández, framed the issue as follows: “No worker should be forced to choose between a job and giving up core labor rights and procedures. Existing labor laws are meaningless if workers are forced to sign away enforcement of those rights.”

However, despite what sounds like a well-intentioned law, opponents of the bill argue that it is unnecessary and unenforceable. California case law already provides adequate protections against such waivers so long as they include provisions for: (1) a neutral arbitrator; (2) no limitation of remedies; (3) adequate opportunity to conduct discovery; (4) written arbitration award and judicial review of the award; and (5) no requirement for the employee to pay unreasonable costs that they would not otherwise incur in litigation. Arbitration agreements that do not include these provisions have regularly been struck down as unconscionable. Further, coercion and lack of consent by employees, the apparent injustices target by this bill, have always been grounds to invalidate contracts.

Perhaps most importantly, opponents of the bill have readily pointed out that the law likely will be preempted by federal law. The Federal Arbitration Act (“FAA”) provides that arbitration agreements are “valid, irrevocable, and enforceable.” As the U.S. Supreme Court held in 2011, “when state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).  It’s hard to imagine how AB 465 will survive such a clear case of preemption. And if it does, given the recent rise in workplace arbitration agreements, the new law would needlessly redirect these disputes back to an already overburdened and underfunded judicial system.

Realistically, if Governor Brown signs the bill and it survives preemption, it will only provide a minimal level of protection for employees. Employers may be able to comply with the new law simply by including clear language that the arbitration agreement is voluntary and not a condition of employment. Whether courts will impose a higher standard for somehow proving that the employee’s waiver is voluntary remains to be determined. We shall see if Governor Brown signs the bill.