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California Workplace Law Blog

Falsification of Time Sheets for Breaks was Misconduct Under Unemployment Insurance Code

Jim Irving, a former employee of the Los Angeles Unified School District, was fired for falsifying time records on at least four occasions. Irving admitted he did not take his breaks at the locations or at the times specified by his employer, exceeded his allotted break time, and deliberately filled out his time sheets to hide his violations.

Irving filed for unemployment compensation benefits. The Employment Development Department initially granted benefits. However, the Unemployment Appeals Board (“Board”) held an administrative hearing and denied benefits.  The Board found that Irving had been informed when he was hired of the district policy concerning the duration of breaks and where they could be taken. He also signed a written acknowledgement that explained the policy. According to the Board, Irving’s violations were documented by the global positioning system in the trucks he drove for the district. Based on Irving’s admissions and other evidence, the Board concluded that Irving “falsely recording his times and locations for each of the 10 days on the district’s time records.” Consequently, Irving was discharged for “misconduct” that rendered him ineligible for benefits. Continue Reading

Catch-22 for Employers: Governor Signs Bill Prohibiting Discrimination Based on Driver’s License

At the recent close of the 2014 legislative session, Governor Brown signed into law AB 1660, which makes it unlawful for an employer to discriminate against an employee because of his or her driver’s license. Continue Reading

Jackson Lewis Named a “Top Law Firm Boutique” by Daily Journal

National workplace law firm Jackson Lewis P.C. has been recognized by the Daily Journal as a “Top Law Firm Boutique.”

The list recognizes only 50 potent firms that focus on one practice area or specialty and that operate successfully against their larger U.S. and global competitors.

For more information. click here (subscription required).

Jackson Lewis Expands in San Francisco with Addition of Three Attorneys

SAN FRANCISCO, CA (October 13, 2014) — Jackson Lewis P.C., one of the largest workplace law firms in the world representing management, is pleased to announce the addition of three new attorneys to the firm’s San Francisco office.  Lisa Sween and Natalja Fulton have joined the firm as Shareholders.  Stephanie Yang has joined as an Associate.  All attorneys were formerly with Lewis Brisbois Bisgaard & Smith LLP.

“The ability to attract such a strong team speaks volumes about Jackson Lewis’ presence in today’s market,” said Fraser A. McAlpine, Managing Shareholder of Jackson Lewis’ San Francisco office.  “We are excited to welcome Lisa, Natalja and Stephanie, whose combined experience further strengthens our footprint in San Francisco and throughout the Northern California region.  Their capabilities will be an excellent addition to our growing office.”

Ms. Sween was previously the Department Head of Lewis Brisbois’ San Francisco Labor & Employment Group and Vice Chair of the firm’s nationwide Employment Practice Group.  She represents employers in all aspects of employment law and litigation, including state and federal harassment, discrimination and wrongful discharge disputes.  In addition to her litigation expertise, Ms. Sween regularly counsels employers on preventive employment policies and practices involving all areas of federal, state and local employment law, including recruiting and hiring, employee handbooks, leaves of absence, discipline and termination, workforce reductions, discrimination and harassment, reasonable accommodation, and wage and hour.

Ms. Sween received her B.A. from The University of California, Berkeley, and her J.D. from the University of San Francisco School of Law, where she was a member of the Law Review.

Ms. Fulton was previously a Partner with Lewis Brisbois’ San Francisco Labor & Employment Group.  She represents employers in litigation involving discrimination, wrongful termination, retaliation, harassment, defamation and whistleblower claims.  Additionally, Ms. Fulton devotes a substantial portion of her practice to litigating wage and hour class actions.  She is a frequent speaker on topics regarding preventive employment policies and practices, as well as recent changes in the law impacting California and San Francisco employers.

Ms. Fulton received her B.A. from The University of California, Los Angeles, and her J.D. from the Golden Gate University School of Law, where she was a member of the Mock Trial Competition Team.

Ms. Yang was previously an associate at Lewis Brisbois’ Labor & Employment Group.  Ms. Yang defends employers in administrative proceedings and in all phases of litigation.  She received her B.A. from The University of California, Berkeley, and her J.D. from the Boston College Law School.  She is fluent in Mandarin Chinese and Taiwanese.

Jackson Lewis’ San Francisco office can be reached at (415) 394-9400.

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About Jackson Lewis

Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law. With over 770 attorneys practicing in 55 locations throughout the U.S. and Puerto Rico, Jackson Lewis is included in the AmLaw 100 and Global 100 rankings of law firms. U.S. News – Best Lawyers “Best Law Firms” named Jackson Lewis the 2014 “Law Firm of the Year” in the Litigation-Labor and Employment category. The firm was also named a Tier 1 National “Best Law Firm” in Employment Law – Management; Labor Law – Management; and Litigation – Labor & Employment, and earned a spot on the BTI Power Elite for being recognized by corporate counsel as one of the top law firms in building and maintaining client relationships. The firm’s wide range of specialized areas of practice provides the resources to address every aspect of the employer/employee relationship. Jackson Lewis has one of the most active employment litigation practices in the United States, with a current caseload of over 6,500 litigations and approximately 550 class actions.

Jackson Lewis is a founding member of L&E Global Employers’ Counsel Worldwide, an alliance of premier employment law boutique firms and practices in Europe, North America, and the Asia Pacific Region.

For more information about Jackson Lewis, please contact:

Lara Hamm, Jackson Lewis

T: (703) 483-8373

E: HammL@jacksonlewis.com

Data Production in Different Form than Maintained was Required Where Requesting Party Offered to Pay Reasonable Cost Under Pre-2013 Employment Records Subpoena

The Second Appellate District of California recently held that a third party must comply with a subpoena requesting data in a format different than the manner in which the data was maintained where the requesting party offered to pay the reasonable cost of translating the data into the requested form.  In Daniel Vasquez v. California School of Culinary Arts, Inc., the appeal was between plaintiffs in a putative class action, and third party, Sallie Mae, Inc.  Sallie Mae was previously involved in the litigation, but had been dismissed from the action at the time of the subpoena in question.  The case involved a putative class action of culinary students who sought records of their student loans from Sallie Mae. Continue Reading

California Supreme Court Finds Franchisor Not Vicariously Liable for Sexual Harassment

In a case of first impression, Patterson v. Domino’s Pizza, LLC (Cal. Aug. 28, 2014) [124 FEP Cases 994], the California Supreme Court concludes franchising does not automatically create an employment or agency relationship with a franchisor for purposes of holding it vicariously liable for the sexual harassment of a franchisee store’s employee by her supervisor. In a 4-3 opinion authored by Justice Baxter, the Supreme Court holds a franchisor becomes potentially liable for the actions of a franchisee’s employees only if it has retained control over “relevant day-to-day aspects of workplace behavior” of the franchisee’s employees.

Factual Background

The plaintiff Taylor Patterson, a former pizza store employee, brought a sexual harassment lawsuit against her male supervisor, franchisee Sui Juris LLC (solely owned by Daniel Poff) and franchisor Domino’s Pizza, LLP (“Domino’s”). Patterson asserted the franchisor was the “employer” of persons working for the franchisee and the franchisee was the “agent” of the franchisor, arguing the franchisor could be held vicariously liable for her harasser’s alleged breach of statutory and tort law. Plaintiff argued the store manager Rene Miranda sexually harassed her whenever they shared the same shift. He made lewd comments and gestures, and grabbed her breasts and buttocks. After he refused to stop, Patterson reported the problem to her father and to Poff. Patterson stayed away from work for one week, and then returned. She soon resigned. She perceived that her hours were reduced in retaliation for reporting sexual harassment. Continue Reading

Professor’s Refusal to Undergo Fitness-for-Duty Exam Warranted Termination, California Court Rules

A university properly terminated a professor for failing to undergo a fitness-for-duty examination after he had engaged in instances of threatening behavior, the California Court of Appeal has ruled, affirming a judgment in favor of the University of San Francisco on a professor’s alleged disability discrimination claims under the Fair Employment and Housing Act (“FEHA”). Kao v. University of San Francisco, No. A135750 (Cal. Ct. App. Sept. 2, 2014). Significantly, the Court ruled the University was not required to engage in an “interactive process” before requesting the examination because the professor never sought any accommodation for any disability.

Background

John S. Kao was a mathematics professor at the University of San Francisco from 1991 to 2009. Beginning in 2008, Kao engaged in a series of confrontations with co-workers during which he often appeared enraged and threatening. Consequently, his co-workers became concerned for their physical safety. The University investigated, consulting with experts in threat assessment and workplace violence. Continue Reading

New California Law Requires Sexual Harassment Prevention Training for Farm Labor Contractors

An amendment to the California Farm Labor Contractor Act requires that farm labor contractors participate in at least one hour of sexual harassment prevention training each year. In addition, the amendment requires that an applicant for licensure as a farm labor contractor execute a written statement attesting that the contractor’s members of management have been trained in the prevention of sexual harassment.

The new law, which becomes effective January 1, 2015, also gives the California Labor Commissioner enhanced legal authority to revoke, suspend, or refuse to renew a farm labor contractor’s license if the licensee has been found by a court or an administrative agency to have committed sexual harassment of an employee, or has employed a supervisory employee whom he or she knew or should have known has been found by a court or an administrative agency, within the preceding three years, to have committed sexual harassment of an employee. Continue Reading

California Law Protects Unpaid Interns and Volunteers from Harassment and Discrimination

California has become the third state in the country, after New York and Oregon, to ban sexual harassment and discrimination in the workplace directed toward unpaid interns.

The new law (AB 1443) extends workplace harassment and discrimination protections under the California Fair Employment and Housing Act (“FEHA”) to unpaid interns, volunteers, and individuals in apprenticeship training programs. It will go into effect January 1, 2015. Continue Reading

California Becomes First State to Require Credit Monitoring Services Information Following a Data Breach

An amendment to the California data breach notification statute requires companies that experience a data breach to include information in the notification that if identity theft prevention and mitigation services are provided, they must be provided for at least 12 months to affected persons at no cost if the breach exposed or may have exposed certain personal information. This is the first time any state has imposed such mandates. The new law, AB 1710, signed by Governor Jerry Brown on September 30, 2014, also expands the application of safeguard requirements for personal information and further prohibits certain uses and disclosures of Social Security numbers. The new law becomes effective January 1, 2015.

New Identity Theft, Credit Monitoring Notification Mandates

Currently, California and 46 other states require entities that own or license certain personal information to notify individuals whose personal information has been involved in a data breach. No state has broadly required entities with a breach notification obligation to provide credit monitoring services or “identity theft prevention and mitigation services” to affected persons. Of course, many companies have provided such services, and State Attorneys General have urged businesses to extend such services. Continue Reading