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.

Companies and employers aroundJames-Kachmar-08_web the country seek to protect their intellectual property by, among other things, using non-compete provisions in employment agreements. Generally, these provisions are intended to prevent an employee from soliciting or doing business with a former employer’s customer/clients over a set period of time and/or in regard to a set geographical area. Under California law, and specifically Business and Professions Code section 16600, such provisions are unenforceable unless they fall within one of the statutory exceptions, i.e., primarily in connection with the sale of a business interest. For years, although California state courts would refuse to enforce such provisions under section 16600, federal courts in California sometimes applied a narrow court-created exception and allow such provisions to be enforced provided that they were narrowly tailored as to time and geographical area. In 2008, the California Supreme Court unequivocally ruled that such provisions were unenforceable under section 16600 and rejected the “narrowly restricted” exception used by federal courts. (See Edwards v. Arthur Andersen, LP, 44 Cal.4th 937 (2008).)

In response to the Edwards decision, many California companies and employers began to omit such provisions from their new employment agreements or re-write them with specific language restricting an employee from using trade secret information to unfairly compete. However, other companies and employers left their old agreements untouched and in place thinking merely that they would not enforce them should the need arise. A recent court decision, Couch v. Morgan Stanley & Co., Inc. (E.D. Cal. Aug. 7, 2015), reveals the risk an employer or company faces in failing to update their older employment agreements to remove or revise such provisions.

Continue Reading Hidden Pitfalls of Old Non-Compete Provisions

On August 7, 2015, the California Labor Commissioner issued its first opinion letter on one discrete issue under the California Health Workplaces Healthy Families Act which requires employers to provide paid sick leave to employees.  The question posed to the Labor Commissioner was this:

 If an employee currently works a regular 10 hour shift, and if the employer elects to proceed under a “no accrual or carry over” system … of providing paid sick leave, does the employer have to “front load” that employee at the beginning of the year with 30 hours of leave (three days at 10 hours per day) or only with 24 hours of leave on the theory that a “day” is limited to a maximum of eight hours?Beth-West-15_web Continue Reading Labor Commissioner’s First Opinion Letter On California’s New Paid Sick Leave Law