RECENT DEVELOPMENTS

IN

CALIFORNIA EMPLOYMENT LAW

By

George S. Howard, Jr.

PILLSBURY MADISON & SUTRO LLP

San Diego, CA

And

Michelle A. Reinglass

LAW OFFICES OF MICHELLE A. REINGLASS

Laguna Hills, CA

February 29, 2000

The cases described in this paper have been selected as representative of important developments in California and federal employment law in 1998 and 1999. However, the paper is not an exhaustive list of all the important cases, nor is it intended as a substitute for legal advice in any particular situation. The cases contained in this paper include decisions rendered through mid-February, 2000.

© 2000 Institute for Corporate Counsel

50092227V1

1. STATUTORY DEVELOPMENTS

1. Assembly Bill 60 (Overtime After Eight Hours Per Day Reinstated)

Effective Date: January 1, 2000

Summary: Requires employers to pay overtime after eight hours per day and 40 hours per week for nonexempt employees in most industries, unless a valid alternative workweek schedule (of not more than ten hours of work in one day) has been approved in a “secret ballot election” by two-thirds of the affected employees in a given work unit.

Application:

· Virtually all private sector employers, except agricultural employers. There are limited exemptions from overtime provisions for stable/race track employers, certain commercial fishing employers and commercial ski operations. The healthcare industry has a short-term exemption, until July 1, 2000, for alternative work weeks involving work days of up to twelve hours a day.

· A.B.60 generally retains the three “white collar” exemptions (the executive, administrative and professional exemptions) but creates a salary basis requirement for these exemptions so that an exempt employee must receive a monthly salary of not less than two times the current state minimum wage (currently equivalent to $23,920 per year).

· Retains the current outside sales exemption but directs the Industrial Welfare Commission to study that exemption.

· Otherwise, there are very limited exemptions for specific classes of employees.

Key Provisions:

(6) Requires overtime pay, at time and one-half the “regular rate of pay” for all hours worked in excess of eight in a work day by a non-exempt employee, except where a valid “alternative work week” has been approved in a secret ballot election.

(7) Where no alternative work week is in effect, requires overtime at double the regular rate of pay for hours in excess of twelve in a work day.

(8) Reestablishes the “seventh day premium” which requires overtime at the rate of time and one half the regular rate of pay for all hours worked on the seventh

- 2 -50092227V1

consecutive day worked in a work week; and double the regular rate of pay for all hours worked greater than eight on the seventh day worked in work week.

(9) Restricts the use of “alternative work weeks” to work days no longer than twelve hours. Under pre-1998 Wage Orders, twelve-hour days were permissible in many industries; limited exception until July 1, 2000 for the healthcare industry.

(10) Alternative work weeks must be regularly-scheduled, meaning that the employer must establish the exact days and number of hours of work for each employee prior to secret ballot election.

(11) The Labor Commissioner contends that secret ballot elections must be conducted under the provisions of the Wage Orders in effect before 1998. This will require pre-election disclosures, a meeting to discuss the disclosures before the election, and a signed agreement, approved by two-thirds of the affected employees, after the election, among other things.

(12) For validly-adopted alternative work weeks, overtime at time and one-half the regular rate of pay is required for (1) all hours in a work day greater than the regularly-scheduled hours and (2) for all hours worked up to eight on a day that is not a regularly-scheduled work day; double time is required for (1) hours worked greater than twelve on a regularly scheduled work day and (2) more than eight for a non-regularly scheduled work day.

(13) Employees in the work unit at the time of an alternative work week election have the right to request “accommodation” (i.e., to work no more than an eight hour day) if they cannot or do not want to work the alternative work week.

(14) Any alternative work week must be reported to the California Division of Labor Statistics and Research within thirty days of the election becoming final.

(15) Limited grandfather provisions for alternative work weeks adopted pursuant to previous secret ballot elections. Any alternative work week involving longer than ten-hour work days is invalid except in the healthcare industry.

(16) Creates a new “makeup time” scheme whereby an employee may take time off for a “personal obligation” and then makeup the lost time, without daily overtime, in the same work week, as long as the employee works no more than eleven hours in a day or forty in the work week. Makeup time must be subject to a written request, not solicited or encouraged by the employer, and approved by the employer before the makeup time is worked.

(17) Individual work schedules involving no more than ten hours in a work days and forty hours in a work week may be continued if (1) the schedule was in effect on July 1, 1999; (2) the employee requests in writing that the schedule be continued; (3) the employer agrees in writing to continue the schedule; and (4) the employer has not solicited or encouraged the written request.

- 3 -50092227V1

(18) Administrative, professional and executive employees must be paid a monthly salary of at least twice the current state minimum wage (currently $1933.33 per month or $23,920 per year). The “floor” for the salary will increase with subsequent minimum wage increases.

(19) Eliminates pharmacists as a class subject to the professional exemption.

(20) Directs the Industrial Welfare Commission to study all exemptions including the executive, professional, administrative and outside sales exemptions.

(21) Creates new civil penalties, assessable against either the employer or supervisors acting on behalf of the employer. These penalties are in addition to the already-existing “waiting time penalties” under Labor Code Section 203. The new penalties are collectible only by the Labor Commissioner.

(22) Covers all Wage Orders generally except for the agricultural wage order. Repeals the 1998 amendments to Wage Orders 1, 4, 5, 7 and 9.

(23) Field construction workers, logging, mining and oil drilling workers are very likely covered by A.B.60 although they were not covered by previous Wage Orders.

(24) Industrial Welfare Commission ordered to issue regulations and new Wage Orders before July 1, 2000.

(25) Codifies the Labor Commissioner’s prior practices regarding calculation of overtime pay for salary, non-exempt employees.

(26) This statute cannot be modified administratively by the Labor Commissioner or the Industrial Welfare Commission. It can only be modified by a subsequent statute signed by the Governor after passage by both houses of the legislature.

Enforcement Provisions:

Generally does not affect the current Labor Code provisions for private minimum wage or overtime claims by employees. Does not affect “waiting time penalties” under Labor Code Section 203.

(27) Creates new civil penalties assessable by the Labor Commissioner against employers and “other persons acting on behalf of an employer”.

(28) Penalties are $50 per initial violation for each underpaid employee for each pay period, in addition to unpaid wages; and $100 for each additional underpaid employee for each pay period of any subsequent violation.

(29) Employee may also file a civil action in court and recover the unpaid overtime, interest, waiting time penalties and attorneys fees.

- 4 -50092227V1

(30) Plaintiff’s attorneys are increasingly suing employers for overtime using the class action vehicle, and also alleging “unfair business practices” under Business and Professions Code Section 17200.

(31) Generally, the statute of limitations on overtime claims is three years from the date the overtime should have been paid. The statute of limitations on Business and Professions Code Section 17200 claims is four years.

Issues and Practical Applications:

(6) Reestablishes the pre-1998 “daily overtime” requirements in California. California is only major industrial state with a statutory eight hour day.

(7) Creates an inconsistent scheme as compared to the federal overtime law (overtime only for over forty hours in a work week, per the Fair Labor Standards Act). This will lead to confusion and possibly inadvertent underpayment of overtime by unsophisticated employers.

(8) Any currently-existing alternative work weeks must be scrutinized to determine if it were properly adopted and if the employer can qualify for the grandfather provisions.

(9) Rules on “alternative work week” elections are vague and unsettled at this point. It is best to follow the pre-1998 Wage Order applicable to your industry.

(10) Alternative work weeks are less attractive in many industries because the employer cannot use work days longer than ten hours.

(11) Alternative work weeks are less attractive because “overtime” is required for any non-regularly scheduled work day. Therefore, a “regularly scheduled” work week means that each employee must be told, before the election, which days he or she will work.

(12) Imposition of the “salary basis” requirement for exempt administrative, executive and professional exempt employees is inconsistent with prior law. Even part-time professionals must be paid a monthly salary of at least twice the minimum wage.

(13) Grandfather” provisions for alternative work weeks are of limited usefulness. Individual work schedule provision is useful but only if the employee in question was working an approved schedule on July 1, 1999 and only if the employer does not solicit or encourage the employee to submit a written request to continue the schedule.

(14) Labor Commissioner interpretations of this statute, as we have seen them so far, are restrictive and narrow. Do not expect favorable regulations and Wage Orders from the Industrial Welfare Commission.

(15) Penalty provisions, enforceable against supervisors, will greatly increase the price of noncompliance.

- 5 -50092227V1

(16) Publicity surrounding Assembly Bill 60 will encourage plaintiffs’ attorneys to scrutinize this area more carefully. Many class actions are being filed, all over the state, on these issues.

(17) Employers should review all exempt personnel to make sure they are properly classified. There are many gray areas as to who is “exempt”.

(18) Exempt personnel must spend fifty percent of their working time on “exempt” duties. This is a serious issue for many lower-level supervisory personnel.

(19) Prudent employers will conduct a thorough review of their payroll practices. The passage of A.B.60 can be used as an explanation to employees of changes to correct questionable or improper past practices.

- 6 -50092227V1

2. Assembly Bill 109 (Use of Paid Sick Leave)

Effective Date: January 1, 2000

Summary: Requires employers who provide sick leave to permit an employee to use a portion of his/her sick leave to attend to the illness of a child, parent or spouse.

Application: All employers. All employees. No exceptions for small employers, temporary, part-time or short-term employees.

Key Provisions:

Employer who provides sick leave must permit an employee to use, in any calendar year, up to the amount of sick leave that would be accrued during six months at the employee’s then current rate of entitlement;

Sick leave can be used to attend to an illness of a child, parent or spouse;Employer-imposed restrictions on the use of sick leave will apply to sick leave used to

care for illness of child, parent or spouse;Does not affect leave under the state or federal Family and Medical Leave Acts;“Child” includes a biological, foster, or adopted child, a stepchild, a legal ward or a child

of a person standing in loco parentis;“Employer” includes political subdivisions of the State of California and municipalities

as well as all private employers.“Parent” means a biological, foster, or adoptive parent, a stepparent or a legal guardian;Definition of “sick leave”:

Includes accrued increments of compensated leave provided by an employer to an employee as a benefit of employment for the use by an employee during absence from employment due to physical or mental inability to perform duties, illness, injury or a medical condition.

Includes authorized absences for the purpose of obtaining professional diagnoses or treatment of a medical condition of the employee.

Includes authorized or permitted absences for other medical reasons such as pregnancy or obtaining physical examinations.

“Sick leave” does not include benefits provided under an ERISA plan; does not include workers’ compensation, unemployment compensation or other insurance disability benefits; does not include a benefit “not payable from the employer’s general assets.

(32) Does not define “illness” – Presumably more inclusive than “serious health condition” under FMLA.

Enforcement Provisions:

Unlawful to deny an employee the right to use sick leave or to discharge, threaten to discharge, demote or discriminate against an employee for using allowable sick leave to attend to the illness of a child, parent or spouse of the employee.

Damage remedy: reinstatement and actual damages or one day’s pay, whichever is greater, and “appropriate equitable relief.”

Enforcement by Labor Commissioner under statutes governing wage claims (Labor Code Sections 98 and 98.1).

Employee may also bring civil action for remedies provided in the statute, plus reasonable attorneys’ fees.

“No preemption” provision: would a violation of this statute be ground for a wrongful termination action for violation of public policy?Issues and practical applications:

(a) Does not affect employers who provide no sick leave.

(b) Does not mandate any particular level of sick leave.

(c) Does not affect waiting time periods or introductory periods during which sick leave does not accrue.

(d) Likely will apply to “personal leave” banks which include both vacation and sick leave.

(e) Will make “personal leave” banks less attractive.

(f) Permits leave for a number of days “not less than the sick leave that would accrue during six months at the employee’s then current rate of entitlement”. This will often be more than one-half of the employee’s then-accrued leave.

(g) Will exist side-by-side with other leave entitlements including FMLA, pregnancy leave, workers’ compensation leave and any leaves required as a more of accommodation under the Americans with Disabilities Act.

(h) No provision that employer may require employee to use sick leave for the illness of a parent, spouse or child.

(i) Definition of “spouse” is non-existent. Will probably not apply to non-married couples or domestic partners.

(j) Will not apply to sick parent of one’s spouse.

3. Assembly Bill 1001 (Amendments to FEHA) (incorporating AB 1670, SB 1185)

Effective Date: January 1, 2000

Summary: AB 1001 incorporates AB 1670 and SB 1185 and strengthens employee protections afforded by the Fair Employment and Housing Act and other civil rights statutes.

Application: Applies to any person regularly employing five or more persons, excepting non-profit religious associations and corporations, and all employees, excepting those employed by a family member or individually employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.

FEHA Section prohibiting workplace harassment applies to all employees and independent contractors as well as all persons regularly employing one or more persons or independent contractors, excepting religious associations and corporations not organized for profit.

AB 1001:

Amends FEHA to include sexual orientation within the unlawful bases for discrimination in employment and housing accommodations.

Repeals Labor Code 1102.1 which expresses the prohibition against discrimination in employment based on sexual orientation, and incorporates it in Government Code 12900 et seq.

Defines “sexual orientation” as “heterosexuality, homosexuality, and bisexuality.”Declares the right to obtain employment or housing without discrimination based on

sexual orientation a civil right.AB 1670:

Makes FEHA’s provisions on harassment applicable to harassment of persons providing services pursuant to a contract.

(20) Defines “a person providing services pursuant to a contract” as a person who “has the right to control the performance of the contract for services and discretion as to the manner of performance” and “is customarily engaged in an independently established business.”

(21) Provides that FEHA applies to a perception that a person is a particular “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.”

(22) Provides that FEHA applies to a perception that a person is associated with a person who has, or is perceived to have, any of the characteristics of a particular “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.”

(23) Makes it an unlawful employment practice under FEHA for an employer to refuse to provide a reasonable accommodation requested by an employee, with the

advice of her health care provider, for conditions related to pregnancy, childbirth, or related medical conditions.

(24) Makes it an unlawful employment practice to make any inquiry as to the physical fitness or physical or mental condition of an applicant in connection with prospective employment, except as permitted under the Americans with Disabilities Act.

(25) Adds a definition of “supervisor” to the act that is declaratory of existing law--“any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

(26) Prohibits business establishments from discriminating against, or refusing to deal with, a person because of a perception regarding the person’s race, creed, religion, color, national origin, sex, or disability.

(27) Prohibits business establishments from discriminating against, or refusing to deal with, a person because the person is associated with a person who has, or is perceived to have, the characteristics of any race, creed, religion, color, national origin, sex, or disability.

(28) Declares as a civil right the opportunity to obtain housing without discrimination based on any protected characteristic or other arbitrary basis prohibited by the Unruh Civil Rights Act.

(29) Revises the definition of discrimination to include harassment in connection with housing accommodations.

(30) Gives the Department of Fair Housing and Employment the power to receive, investigate, and conciliate complaints alleging violations of sections 51.5, 54, 54.1, and 54.2 of the Civil Code.

(31) Makes it an unlawful employment practice for an employer or other entity to require testing for a genetic characteristic.

(32) Allows the court to award the prevailing party his or her expert witness fees in any civil action brought under FEHA.

(33) Authorizes the court to include as relief a requirement that an employer conduct prescribed training in a court action for emotional injuries or an administrative fine against a respondent named in an administrative accusation under FEHA.

(34) Increases the limit for the total amount of damages that may be awarded by the FEHC for nonpecuniary loss and administrative fines to $150,000 per aggrieved person per respondent.

SB 1185:

Defines “genetic characteristic” as either a scientifically or medically identifiable gene or chromosome that causes a disease, or “inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.”

Specifies that “genetic characteristic” has the same meaning as that set forth in the provisions governing discrimination in the enrollment of health care service plans.Enforcement Provisions:

Basic existing DFEH charge filing/handling procedures are unchanged.Department of Fair Employment and Housing can issue and prosecute accusations before

the Commission.The Fair Employment and Housing Commission can hold hearings on discrimination

complaints and issue findings and orders.Employee may bring private civil action for remedies provided in the statute after

exhausting all administrative remedies.Damage remedy: Existing damages and equitable remedies for employment

discrimination are unchanged. Allows the court to award the prevailing party his or her expert witness fees in any civil

action brought under FEHA.Authorizes the court to include as relief a requirement that an employer conduct

prescribed training in a court action for emotional injuries or an administrative fine against a respondent named in an administrative accusation under FEHA.

Increases the limit for the total amount of damages that may be awarded by the FEHC for nonpecuniary loss and administrative fines to $150,000 per aggrieved person per respondent.Issues and Practical Applications:

16. Sexual Orientation is Protected Category

(17) Expands FEHA’s protected categories to include sexual orientation, i.e., heterosexuality, homosexuality and bisexuality.

(18) Creates causes of action for violation of public policy and civil rights based on discrimination in employment practices and in obtaining housing on the basis of sexual orientation, in addition to the previously protected categories of race, color, religion, sex, marital status, national origin, ancestry, familial status or disability.

(19) Employers may not make inquiry into an applicant’s or employee’s sexual orientation, in addition to the previously protected characteristics

(20) Employers may not discriminate against any applicant or employee who is perceived to be a member of a protected group, including sexual orientation.

(21) Employers may not discriminate against any applicant or employee who is associated with a person in any of the protected categories, or who is

perceived to be in any of the protected categories, including sexual orientation.

17. Expands Workplace Harassment Liability

Prohibits workplace harassment of independent contractors.(22) Codifies a definition of supervisor derived from case law, i.e., any

individual who exercises authority over other employees which requires independent judgment beyond that of a clerical nature.

18. Employment Decisions Based Upon Physical or Mental Fitness of Employee

Employers may continue to hire only applicants who can perform the essential functions of the job, i.e., an employer may refuse to hire an applicant with a physical or mental disability if the applicant is unable to perform the essential functions of the job even with reasonable accommodation, or if the applicant poses a risk to the health and safety of the workplace.

(23) Pregnancy is now a temporary disability.

(24) Expands employer’s duty to make reasonable accommodations absent undue hardship for conditions related to pregnancy, childbirth or related conditions, so long as the employee requests the accommodation based upon the advice of a healthcare provider.

(25) Prohibits discrimination against an applicant or employee due to pregnancy or pregnancy-related medical condition.

(26) Prohibits genetic testing of applicants or employees.

(27) Prohibits inquiries as to an applicant’s physical fitness or physical or mental condition unless “directly related and pertinent to” the position applied for or necessary to determine if applicant would be a danger on the job to himself or others.

4. Senate Bill 26 (Prohibition of Disparate Impact Age Discrimination)

Effective Date: January 1, 2000

Summary: Prohibits employers from using salary as the basis of termination decisions when doing so adversely impacts older workers (those aged forty and above) as a group. Permits employees to file claims for age discrimination based on a disparate impact theory.

Application: Applies to employers who regularly employ at least five employees; any person acting as an agent of such employers; the State or any of its political or civil subdivisions, and cities. Does not include religious associations.

Key Provisions:

(6) This statute is incorporated into the California Fair Employment and Housing Act (“FEHA”) as Government Code section 12941.1;

(7) Employers are liable for age discrimination for the use of salary as the basis for differentiating between employees when terminating employment if use of that criterion disproportionately affects older workers as a group;

(8) Permits employees to file age discrimination claims based on an adverse impact theory of discrimination as well as on an intentional discrimination theory;

(9) Reaffirms the Legislature’s intent that the courts interpret the state’s statutes prohibiting age discrimination in employment broadly and vigorously to protect older workers individually and as a group;

(10) Does not limit the affirmative defenses traditionally available to employers in discrimination claims, including but not limited to bona fide occupational qualification (“BFOQ”), business necessity, and job-relatedness.

Enforcement Provisions:

It is a violation of the FEHA to use salary as the basis for making termination decisions when doing so adversely impacts those workers over forty as a group.

(11) Enforcement by the California Department of Fair Employment and Housing (“DFEH”): Aggrieved employees may file an administrative complaint with the DFEH.

(12) Civil and Administrative Remedies as for other violations of FEHA. In a private civil action, remedies available can include back pay and benefits, future lost pay and benefits, unlimited emotional distress damages, punitive damages (if malice is established) and attorneys’ fees. Injunctive relief is also available. Administrative remedies are more limited but still extensive.

(13) After exhausting administrative remedies, the aggrieved employee may bring a civil action for damages, including reasonable attorneys’ fees.

Issues and practical applications:

Will apply primarily to reduction in force decisions.(14) Base staff reductions decisions on issues other than salary or other age-related

criteria (e.g. probable retirement dates).

(15) Applies not only to salary but any criteria used to make adverse employment decisions which adversely affect older workers as a group (e.g., greater cost for benefits).

(16) Applies not only to termination decisions but all adverse employment decisions (e.g., failure to promote, demotion; reduction in compensation).

(17) Increased protection against liability when decision-maker is unaware of employees’ salaries when making adverse employment decisions.

(18) Underscores the importance of demographic analyses of adverse employment actions prior to making final determinations to avoid disproportionate impact on any protected group.

(19) Underscores the importance of documenting criteria used in making adverse employment decisions.

(20) Review the employer’s equal employment opportunity policy and layoff policy (if any) to make sure it is broad enough to comply with, and incorporate, new law.

(21) Consider management training on discrimination issues to remind supervisors not to make decisions or remarks with potential discriminatory impact.

5. Senate Bill 56 (Time Off For Court Appearances)

Effective Date: January 1, 2000

Summary: Prohibits employers from retaliating or discriminating against an employee who is either (1) a victim of a crime and takes time off to appear in court to comply with a subpoena or other court order, or (2) a victim of domestic violence who takes time off to obtain or to attempt to obtain relief.

Application: All employers. All employees. No exceptions for small employers, temporary, part-time or short-term employees.

Key Provisions:

Employer may not discharge, discriminate or retaliate against an employee who is a victim of a crime for taking time off to appear in court to comply with a subpoena or other court order as a witness;

(22) Employer may not discharge, discriminate or retaliate against an employee who is a victim of domestic violence for taking time off work to obtain any relief to help ensure the health safety, or welfare of the victim or his or her child(ren);

(23) “Relief” includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief.

(24) Employee must give employer reasonable notice that employee is required to appear in court, unless unscheduled or emergency court appearance is required for the health, safety or welfare of a domestic violence victim or his or her child.

(25) Employee must provide employer, within a reasonable time, with evidence from the court that he or she has appeared in court.

(26) An employee filing a claim for violation of this provision has one year from the date of occurrence of the violation to file the complaint.

(27) Employee may use available paid vacation, sick leave, PTO; otherwise leave is unpaid.

Enforcement Provisions:

Unlawful to discharge, threaten to discharge, demote, suspend, retaliate or discriminate against (1) an employee who is a victim of a crime for taking time off to appear in court to comply with a subpoena or other court order, or (2) against an employee who is a victim of domestic violence for taking off time from work to obtain injunctive relief.

(28) An employee who is discriminated or retaliated by his or her employer because the employee exercised his or her rights under the Act, may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations (the Labor Commissioner);

(29) An employee may use any available paid vacation, personal leave or compensatory time off, unless otherwise provided by a collective bargaining agreement;

(30) Damage remedy: reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

(31) Statute silent on whether it preempts other remedies.

(32) Criminal implications: An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.

Issues and practical applications:

Does not require paid leave, but employee may use available paid vacation, PTO or sick leave.(33) Allow an employee who is a victim of a crime to take time off to appear in court

to comply with a subpoena or other court order.

(34) Allow an employee who is a victim of domestic violence to take time off work to obtain any relief to help ensure the health, safety or welfare of the victim or his or her child(ren).

(35) “Any relief” includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief. This could possibly be interpreted broadly to include finding a safe home for the victim and his or her children.

(36) Require proof of actual subpoena or court appearance.

(37) Require reasonable notice, except in emergencies, for domestic violence appearances.

(38) For exempt employees, do not dock salary unless employee works no hours in workweek.

6. Assembly Bill 1268 (Labor Disputes)

Effective Date: January 1, 2000

Summary : Changes California law to more closely track the provisions of the federal Norris-LaGuardia Act. Specifically, it limits the liability of union officers and members for the unlawful acts of other officers, members of agents and restricts the ability of state courts to issue injunctions in labor disputes.

Application : All employers, employees, labor unions, union officers and their members.

Key Provisions:

(1) Union officers and members cannot be held liable for unlawful acts of other union officers, members or agents, unless there is clear proof of their actual participation in, or authorization of those acts.

(a) Injunction cannot be entered in labor disputes until a noticed1 hearing takes place at which the following facts are shown:

(i) live testimony of witnesses is required;

(ii) unlawful acts have been threatened and will be committed unless restrained , or such acts have been committed and will continue unless restrained;

(iii) substantial and irreparable injury to the employer’s property will follow;

(iv) greater injury will be inflicted upon complainant if relief is denied than will be inflicted upon the defendant (union) if relief is granted;

(v) the employer has no adequate remedy at law; and

(vi) public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.

(b) Temporary restraining orders lasting no more than five days may be issued without formal notice; however oral argument from the union or its counsel is required and the employer must post a bond.

(c) Employer requesting injunction or temporary restraining order must comply with all obligations imposed by law involved in the labor dispute and must make every reasonable effort to settle the dispute by negotiation, mediation or arbitration.

1? Notice must be given to all persons against whom relief is sought and to the chief of the public officials for the city and county in which the unlawful acts have been threatened or committed and who are charged with the duty to protect the complainant’s property.

(d) Injunction or restraining order must be limited in scope to include only a prohibition of the specific act(s) complained of and that are expressly included in court’s factual findings.

(e) An injunction or restraining order may only be entered against the person(s), association(s), or organization(s) making the threat of unlawful act(s) or who committed or authorized the unlawful act(s).

Issues and practical applications:

Makes it more difficult to obtain a state court injunction against violent or mass picketing.(2) Requirement that police be “unable or unwilling to furnish adequate protection” will be difficult to meet in some cases.

(f) Police generally are reluctant to become involved in labor disputes.

(g) Requires “personal” notice to all persons sought to be enjoined (i.e., each individual picket).

(h) Does merely blocking access to an employer’s facility constitute “irreparable injury”?

(i) May encourage mass picketing or violence during labor disputes as the union can only be held liable for the unlawful acts of its officers or members if there is clear proof the union actually participated in or authorized the unlawful acts.2 As a result, employers may need to provide additional security during union picketing.

(j) Restriction on scope of injunction to only those persons, organizations, or associations who have threatened or committed the unlawful acts may allow union to argue only specific individuals may be enjoined, not the entire union.

2? Previously, liability could be established if a preponderance of evidence showed the defendant planned, aided, or participated in the unlawful acts.

7. Pending (But Not Enacted) State and Federal Employment-Related Legislation

PENDING STATE LEGISLATION

Assembly Bill 858 (mandatory arbitration): Would prohibit contracts between employers and applicants or employees which require pre-dispute binding arbitration. Would make such pre-dispute binding arbitration agreements unenforceable. Employers would be prohibited from requesting as well as requiring such provisions. This bill very nearly was enacted in 1999. The current version has an exception which permits mandatory pre-dispute binding arbitration agreements for employees earning over $150,000 per year.

19. Senate Bill 1149 (expansion of Family and Medical Leave Act): This bill would lower the threshold for employers subject to the Family and Medical Leave Act under state law from the current 50 employees to 20 employees.

20. Senate Bill 118 (Family and Medical Leave Act): Would provide that an employee may take Family and Medical Leave to care for any individual who depends on the employee for immediate care and support, lives in the same residence and has a serious health condition. It therefore expands the current Family and Medical Leave statute under state law which currently provides such leave only for the serious health condition of the employee, his or her spouse, child or parent.

PENDING FEDERAL LEGISLATION

H.R. 91 (Family and Medical Leave): Would lower the threshold for employers covered by the federal Family and Medical Leave Act from the current 50 employees to 25 or more employees. Would also create a new type of Family and Medical Leave by allowing eligible workers to take up to twenty-four hours of additional leave each year to meet family obligations.

21. H.R. 325/S. 192 (Minimum Wage): These bills would generally raise the federal minimum wage by $1.00 in two fifty-cent increments, bringing it to $6.15 in two years. The minimum wage will be a prominent item on the Congressional agenda, because 2000 is an election year. Republicans have proposed a $1.00 per hour increase over three years, coupled with tax relief for businesses.

22. H.R. 1381/S. 1878 (Fair Labor Standards Act/Overtime): Would amend Fair Labor Standards Act to eliminate the requirement that bonuses be considered part of the “regular rate of pay” for purposes of calculating overtime. Strenuously opposed by organized labor. Would be moot in California because of our own state overtime law requirements that require including most bonuses in the “regular rate of pay”.

23. H.R. 1441/S. 337 (“Salting”): Would permit employers to refuse to hire union-paid “salts” who apply for employment with the intention of organizing the

employer after becoming employed. Would probably be vetoed by President Clinton if enacted.

24. H.R. 2434 (Union Dues Disclosure): Would require labor unions to obtain permission in writing from members to use dues for activities unrelated to collective bargaining (such as political activities or lobbying). Would create double-damage remedy for violations and provide attorneys’ fees right to prevailing employees. Would probably be vetoed by President Clinton if enacted. Case law already restricts unions’ ability to use dues for non-collective bargaining purposes, but proving violations is difficult and expensive for individual employees.

2. employment Discrimination

1. Discrimination/harassment – General and Procedural Issues

Reeves v. Sanderson Plumbing Products, Inc., (5th Cir. 1999) 197 F.3d 688, certiorari granted, 120 S.Ct. 444 (Nov. 8, 1999)

By granting certiorari in this case, the United States Supreme Court has the opportunity to clarify once again the burden of proof requirements in disparate treatment discrimination cases. The Supreme Court’s decision in St. Mary’s Honor Center v. Hicks, (1993) 509 U.S. 502, 113 S.Ct. 2742 has given rise to numerous conflicts in the Circuits regarding the type and quality of evidence necessary to establish “pretext” and to enable plaintiff to obtain a jury trial on the issue of discriminatory intent. Some Circuits have established a very low threshold, stating that the plaintiff can get to the jury simply by creating a material issue of fact whether the employer’s purported reason is true. Other Circuits require more than proof of the employer’s alleged false reason. In an en banc decision in 1998, the D.C. Circuit stated, “We ourselves do not read Hicks to say that a plaintiff who creates a genuine issue of material fact as to whether the employer has given the real reason for its employment decision will always be deemed to have presented enough evidence to survive summary judgment. Instead, the Court must consider all the evidence in its full context in deciding whether the plaintiff has met his burden of showing that a reasonable jury could conclude that he had suffered discrimination and accordingly summary judgment is inappropriate.”

The Ninth Circuit’s rulings on the issue are not uniform, but the most recent panel opinion sets a fairly low threshold.

See the Ninth Circuit’s decision in Godwin v. Hunt Wesson, Inc., (9th Cir. 1998) 150 F.3d 1217 cited infra.

Reno v. Baird , (1998) 18 Cal. 4th 640, 76 Cal. Rptr. 2d 499

Individual supervisory employees are not liable under Fair Employment and Housing Act for discriminatory job decisions such as terminations, failure to promote, failure to hire. Does not decide whether an individual supervisor could be liable for harassment under Government Code Section 12940(h)(1).

Carrisales v. Department of Corrections, et al., (1999) 21 Cal. 4th 1132, 90 Cal. Rptr. 2d 804

Fair Employment and Housing Act does not apply to actions between co-workers not involving a supervisorial relationship. Non-supervisory co-worker is not personally liable for sexual harassment under FEHA.

Aguilar v. Avis Rent-A-Car Systems , (1999) 21 Cal. 4th 121, 87 Cal. Rptr. 2d 132

California Supreme Court upholds a broad injunction prohibiting any form of racial epithet by a Caucasian manager who had been found guilty of personally committing racial harassment in the workplace by using repeated racial or ethnic epithets toward Latino employees. The injunction prohibited any future racial epithets concerning Latino employees, whether in or out of the workplace, and whether or not within the hearing of Latino employees. The injunction also prohibited Avis from permitting the defendant to use such epithets. The Supreme Court upheld the injunction against claims it was a violation of the First Amendment and overly broad, and upheld the portions that precluded racial epithets toward Latino employees made outside the workplace or outside of the hearing of such employees. Justices Mosk, Kennard and Brown dissented. Only three judges signed the lead, plurality opinion. Justice Werdergar concurred on the basis that the injunction should be limited only to the workplace.

Hovanec v. Van Nuys Airport Rest. Corp., (1999) 76 Cal. App. 4th 879, 91 Cal. Rptr. 2d 20:

The Fair Employment and Housing Act [Government Code sections 12960 and 12965(b)] provides a one year statute of limitations for retaliatory discharge claims. The limitations period begins tolling from the date of discharge, even if the plaintiff does not receive notice of the discharge until several months after termination; the statute of limitations is not equitably tolled until the plaintiff receives notice of discharge.

Administrative complaints regarding retaliatory discharge do not relate back to administrative complaints filed for other, unrelated claims.

Williams v. City of Belvedere, (1999) 72 Cal. App. 4th 84, 84 Cal. Rptr. 2d 658:

Timely filing of an administrative compliant with the DFEH is a prerequisite to filing a civil suit.

The statute of limitations for filing an administrative complaint under the Fair Employment and Housing Act (“FEHA”) is one year plus 90 days if the victim did not have notice of the alleged wrongful practice until after the one year period.

Anderson v. Reno, (9th Cir. 1999) 190 F.3d 930:

Employee plaintiffs need not exhaust administrative remedies as to new claims, prior to seeking resolution of the newer claims in a related, pending civil action based on the same alleged form of discrimination.

The statute of limitations for filing EEO complaints does not bar evidence of events occurring outside the limitations period that evidence an “ongoing unlawful employment practice” under the continuing violation doctrine.

Godwin v. Hunt Wesson, Inc., (9th Cir. 1998) 150 F.3d 1217:

In order to defeat a motion for summary judgment in a sex discrimination case, employee plaintiffs need only produce (i) minimal direct evidence of discrimination; or (ii) substantial evidence that the employer’s proffered reason for the discriminatory practice is unreliable.

Stoll v. Runyon, (9th Cir. 1999) 165 F.3d 1238

Title VII 90-day statute of limitations tolled where employee is too distressed as a result of sexual harassment to timely file a complaint against employer. Employee could not protect her own rights by participating in her case against employer because quid pro quo and hostile environment harassment left her unable to read, open mail, communicate with her attorney, or function in society.

Wright v. Southland Corporation, (11th Cir. 1999) 187 F.3d 1287

In this case the Eleventh Circuit elaborated on what constitutes “direct evidence” in an employment discrimination disparate treatment claim, such that the McDonnell Douglas Corp. v. Green burden-shifting approach does not apply. The Eleventh Circuit held that “direct evidence” can be any evidence “from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic.” This is a broader definition than the traditional definition that direct evidence is evidence which, if believed, proves the existence of a fact in issue without inference or presumption.

2. Discrimination - Age

Kimel v. Florida Board of Regents, (2000) ______ U.S. ______, 120 S.Ct. 631

In this potentially very important decision, the United States Supreme Court held that states cannot be sued under the Federal Age Discrimination in Employment Act, since Congress has no power to subject states to lawsuits by private individuals. Age is not a suspect classification under the Federal Equal Protection Clause. The decision does not affect claims under state statutes, such as FEHA, but may preclude claims against states or their political subdivisions under other federal employment statutes such as the Americans with Disabilities Act and at least some provisions of Title VII of the Civil Rights Act of 1964.

Horn v. Cushman & Wakefield Western, Inc., (1999) 72 Cal. App. 4th 798, 85 Cal. Rptr. 2d 459:

To defeat summary judgment, an employee claiming age discrimination must offer (i) substantial evidence that the employer’s stated nondiscriminatory reason for adverse action was pretextual or untrue; (ii) evidence that the employer acted with discriminatory animus; or (iii) some combination of the two, such that a reasonable trier-of-fact could conclude that the employer engaged in intentional discrimination.

Evidence of positive performance reviews, commendations, salary increases, and vague assurances of promotion are natural occurrences of a lengthy employment relationship, and do not constitute evidence of an implied contract (to terminate only for cause) sufficient to defeat summary judgment.

Absent an underlying contract, no duty (or cause of action for breach thereof) of good faith performance and fair dealing arises.

Dominguez-Cruz v. Suttle Caribe, Inc., (1st Cir. 2000) ___ F.3d ___, 2000 WL 97676

Summary judgment for employer reversed where company gave inconsistent explanations for termination, key decision-maker referred to the plaintiff more than once as a “old fart” in front of two younger employees who eventually assumed many of plaintiff’s duties, and notes of an important meeting made by a personnel representative included references to employees’ ages and the phrase “cover up.” First Circuit panel avoids deciding the distinction between “direct” and “circumstantial” evidence.

3. Discrimination - Sex/Sexual Harassment/ Pregnancy

Bierbower v. FHP, Inc.,(1999) 70 Cal. App. 4th 1, 82 Cal. Rptr. 2d 393

The conditional privilege against defamation for communications made without malice on subjects of mutual interest covers investigations of sexual harassment complaints by private employers when made without malice.

Spaziano v. Lucky Stores, Inc.,(1999) 69 Cal. App. 4th 106, 81 Cal. Rptr. 2d 378

Pregnancy discrimination claim rejected where employer’s collectively-bargained leave of absence policies provide less leave for pregnancy than for occupational illnesses. Employer granted more leave to pregnant employees (six months) under the collectively bargained policy than was required by the statute. Court rejected a claim that the policy was discriminatory on its face because it provided for a longer leave for work-related injuries. All disabilities (including pregnancy) that were not work-related receive the shorter period for leave. Distinction was not based on pregnancy but on the fact that her disability was not work-related.

Kaiser Foundation Hospitals v. Superior Court, (1998) 66 Cal. App. 4th 1217, 78 Cal. Rptr. 2d 543

Attorney-client privilege and work product doctrine protects work product of attorney created during sexual harassment investigation where attorney did not personally conduct the investigation and merely had contact with the non-attorney investigator during the investigation. Work product of the non-attorney investigator was produced, but the Court rejected a blanket rule that simply putting the investigation in issue as a defense destroyed the attorney-client privilege. “That important policy [the attorney-client privilege] would be defeated if all privileged communications regarding employment investigations were ordered disclosed in every case where the adequacy of an employer’s internal investigation is placed in issue, regardless of whether or not the investigation is placed in issue, regardless of whether or not the investigation itself was performed by an attorney.”

Kohler v. Inter-Tel Technologies , (N. D. Cal. 1999) 1999 WL 226208

This decision, not reported in F. Supp. 2d, is one of the very few cases so far to discuss whether the United States Supreme Court’s 1998 sexual harassment decisions, Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 and Faragher v. City of Boca Raton, 118 S. Ct. 2275 would be applied to California sexual harassment cases arising under the fair employment and housing act. The District Judge stated, “moreover, there is no reason to assume that California courts would not follow the holdings of Ellerth and Faragher given that the policy set forth by the California legislature supporting FEHA is the same as that supporting Title VII . . .”

Kovatch v. California Casualty Management Company, Inc., et al., (1998) 65 Cal. App. 4th 1256, 77 Cal. Rptr. 2d 217

Giving an employee a choice between returning to an environment of harassment or accepting a demotion is not sufficient as a matter of law to defeat a claim of constructive discharge.

Plaintiff’s evidence of positive performance reviews, commendations, salary increases and vague assurances that he would become a sales manager was not sufficient to create a triable issue of fact as to whether the parties had implicitly agreed to terminate the employee only for good cause.

Plaintiff’s claim for intentional infliction of emotional distress was not barred by the exclusive remedy provisions of the Workers’ Compensation Act and evidence of harassment based on sexual orientation was sufficient to create a triable issue of fact as to whether the conduct the employee experienced was outrageous.

4. Discrimination - Disability

United States Supreme Court Decisions Regarding Americans With Disabilities Act

In the summer of 1999, the United States Supreme Court decided four important cases arising under the Americans With Disabilities Act. They may be summarized as follows:

Sutton v. United Airlines, Inc., (1999) 527 U.S. 471, 119 S. Ct. 2139

In determining whether a person is “disabled” as defined in the ADA, the Court looks to the person after considering mitigating measures such as eyeglasses, medication, or self-accommodation. Persons who have normal vision with eye glasses, but terrible vision without eyeglasses, are not “substantially limited” in a major life activity.

Murphy v. UPS, (1999) 527 U.S. 516, 119 S. Ct. 2133

Individual who had extremely high blood pressure without medication, but was normal with medication, was not disabled. While on medication, the individual was not substantially limited in a major life activity. Individual was foreclosed from driving a commercial motor vehicle due to a Department of Transportation regulation, but was not foreclosed from other jobs (such as a mechanic job) and was not substantially limited in the major life activity of working.

Albertson’s Inc. v. Kirkinburg, (1999) 527 U.S. 555, 119 S. Ct. 2162

Employer was entitled to rely on federal Department of Transportation vision standards even though they would exclude from employment a driver with monocular vision. The driver was hired and permitted to drive when a medical examination failed to disclose the vision limitation. After the vision limitation was discovered, the employee was terminated based on Department of Transportation vision standards.

Later the employee received a waiver from the Department of Transportation but the employer refused to rehire him. This particular person, although having monocular vision, was found not to be substantially limited due to his ability to self-accommodate.

Cleveland v. Policy Management Systems, Corp., (1999) 526 U.S. 795, 119 S. Ct. 1597

Plaintiff can obtain social security disability benefits by claiming a total inability to work, and yet bring an ADA claim, claiming she could have worked with reasonable accommodation. Persons who apply for or receive Social Security Disability Benefits (or private disability insurance benefits) are not automatically barred from suing their employers under the ADA. However, such claimants will have to explain inconsistent statements, made under oath, used to obtain disability insurance benefits.

Swenson v. County of Los Angeles, (1999) 75 Cal. App. 4th 889, 89 Cal. Rptr. 2d 572, review granted, (2000) 92 Cal. Rptr. 2d 253

The California Supreme Court has granted review of this case to determine whether the term “mental disability” as defined in the Fair Employment and Housing Act requires evidence of a substantial limitation (as opposed to any limitation) as a result of the mental impairment. In Swenson, the Court of Appeal held that the FEHA definition of mental disability does not require a substantial limitation as would be the case under the ADA or for physical disabilities under the FEHA. Two other courts of appeal have addressed the subject, with conflicting results. See Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709, 70 Cal. Rptr. 2d 531 (“substantial limitation” not required); and Muller v. Automobile Club of Southern California (1998) 61 Cal. App. 4th 431, 71 Cal. Rptr. 2d 573 (substantial limitation required).

McAlindin v. County of San Diego, (9th Cir. 1999) 192 F.3d 1226

Adopts EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, rendering sleeping, engaging in sexual relations, and interacting with others major life activities that would qualify an employee as disabled for ADA purposes. Inability to get along with others must be severe. Employees must show that “their relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.”

Barnett v. US Air, Inc., (9th Cir. 1999) 196 F.3d 979, rehearing en banc granted, (Feb. 1, 2000) 2000 WL 130725

The panel opinion in this case, which will be reheard en banc by the Ninth Circuit, holds that (1) plaintiff has the burden to show the existence of a specific accommodation that would permit him to perform the essential functions of the job; (2) the ADA does not require an employer to give disabled employees preference over non-disabled employees in hiring and reassignment decisions; (3) employer was not obligated, under the Rubric of reasonable accommodation, to deviate from its collectively-bargained seniority system for job assignments; (4) no cause of action under ADA for failing to engage in interactive process, as opposed to simply failing to accommodate the employee; (5) dissent by Judge Fletcher claims that majority fails to follow 1999 EEOC Enforcement Guidance Regarding Reasonable Accommodation.

Hobson v. Raychem Corporation, (1999) 73 Cal. App. 4th 614, 86 Cal. Rptr. 2d 497

No disability discrimination claim under FEHA based on plaintiff’s alleged ulcerative colitis because that condition is not a disability as a matter of law. Plaintiff’s ulcerative colitis did not substantially limit a major life activity and at most resulted in minor, insubstantial limitations on her activities. Plaintiff’s claim of mental disabilities such as depression and anxiety is rejected because her administrative charge of discrimination did not allege discrimination based on mental disabilities and so she failed to exhaust her administrative remedies on that issue.

Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 87 Cal. Rptr. 2d 487

Summary judgment affirmed for employer in disability discrimination claim under FEHA. Plaintiff suffered a hand injury on the job, and took medical leaves totaling sixteen months. His doctor finally released him to return to work with restrictions on heavy lifting, pulling, pushing and prolonged standing. The employer offered him an alternative position as a part-time meat clerk, which the plaintiff rejected. He was thereafter terminated. The court held that the employer had attempted to reasonably accommodate plaintiff by extending his leave to which he was entitled under his collective bargaining agreement and to offering him an alternative position consistent with his restrictions. Further, plaintiff failed to produce evidence that the stated reason for his termination (failure to return from medical leave to the part-time position) was pretextual.

Real v. City of Compton, (1999) 73 Cal. App. 4th 1407, 87 Cal. Rptr. 2d 531

$1.4 million jury verdict for ADA plaintiff reversed. Relying in part on the United States Supreme Court’s 1999 decisions in Sutton v. United Airlines and Murphy v. United Parcel Service, Inc., supra, the Court concludes that plaintiff failed to show his work-related knee injury substantially limited him in a major life activity, or that the City of Compton perceived him as being so limited. The case does not decide the unresolved issue whether a state entity may be sued under the Federal Americans With Disabilities Act.

City of Moorpark v. Superior Court, (1998) 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445

Employee may bring disability discrimination claim under FEHA where a work related injury gives rise to a physical disability. Labor Code Section 132(a), which prohibits employers from discriminating against employees who are injured in the course and scope of employment, is not an exclusive remedy.

Wellington v. Oyon County School District, (9th Cir. 1999) 187 F.3d 1150

Former school janitor alleged an ADA violation after he was terminated, allegedly due to carpal tunnel syndrome. Ninth Circuit reversed summary judgment for school district, finding issues of fact whether the janitor was disabled under the ADA and whether offering him an alternative job would have been a reasonable accommodation.

Broussard v. University of California, (9th Cir. 1999) 192 F.3d 1252

Animal technician with carpal tunnel syndrome cannot maintain ADA claim because she was not substantially limited in the major life activity of working.

Krocka v. City of Chicago, (7th Cir. 2000) ___ F.3d ___, 2000 WL 137441

Police officer who was placed by his police department in a “personal concerns program”, after the department learned he was taking Prozac to control depression, loses his disability discrimination claim. At trial the officer lost the disability claim to a jury but recovered $200 under 42 U.S.C. §1983. The Seventh Circuit held that he was not disabled because he failed to show a substantial limitation on a major life activity, and further held that the department did not “regard” him as disabled. The department’s placing him in the personal concerns program did not prove that the department regarded him as substantially limited in a major life activity.

5. Discrimination - Family & Medical Leave Act

Nelson v. United Technologies, (1999) 74 Cal. App. 4th 597, 88 Cal. Rptr. 2d 239

Establishes cause of action for tortious wrongful discharge in violation of public policy articulated in California Family Rights Act, Government Code section 12945.2. Employers are now subject to tort damages for discriminating or retaliating against employees for exercising the right to family and medical leave. Employee terminated for performing volunteer firefighting duties while on family leave to care for wife could not recover.

Gibbs v. American Airlines, (1999) 74 Cal. App. 4th 1, 87 Cal. Rptr. 2d 554

Employee resigned shortly after having missed several days from work with flu-like symptoms, and having been questioned by her supervisors about her absences. She brought a claim alleging violations of Family and Medical Leave Act and intentional infliction of emotional distress. A jury rejected her FMLA claim because she did not provide proper notice to the employer requesting family leave. “Notice of flu symptoms is not notice of a need for a CFRA-Qualifying Event.” The Appeals Court overturned a jury verdict on the intentional infliction of emotional distress claim, since the discharge did not offend public policy and therefore the claim was preempted by Worker’s Compensation remedies.

Marchischeck v. San Mateo County, (9th Cir. 1999) 199 F.3d 1068

No cause of action exists for violation of Family and Medical Leave Act, violation of California Family Rights Act, or wrongful discharge in violation of the public policy in either the FMLA or the CFRA where an employee took one month unauthorized leave to relocate her son in the Philippines after he displayed behavioral problems and was beaten by acquaintances. Son did not have a “serious health condition” as contemplated by the statutes because he failed to seek more than one medical visit following the beating. Mother did not “care” for the son as contemplated by the legislature because she did not participate in his treatment

3. Labor Code/Wage-Hour

City of Moorp a rk v. Superior Court , (1998) 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445

See discussion under disability discrimination, supra. Labor Code § 132a is not an exclusive remedy for disability discrimination if disability is job-related.

Fretland v. County of Humboldt, (1999) 69 Cal. App. 4th 1478, 82 Cal. Rptr. 2d 359

Labor Code 132a claim for work-related injury discrimination is not an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies.

Taylor v. Lockheed Martin Corporation, (Feb. 23, 2000) ___ Cal. Rptr. 2d ___, 2000 WL 204255

A civilian employee of a government contractor working on a military enclave cannot sue for violation of FEHA or for common law wrongful termination in violation of public policy. The law applicable to federal enclaves generally is federal law or state law, which was in effect at the time the federal government assumed legislative power over the enclave and which is not inconsistent with federal law. State law which is created after the federal government exercises legislative power over the enclave will apply only if the state regulation has been expressly permitted by Congress. The court finds that Labor Code §6310, the California whistleblower statute for reporting violations of Cal/OSHA, applies on this particular enclave (Vandenberg Air Force Base).

Lambert v. Ackerley, et al., (9th Cir. 1999 en banc) 180 F.3d 997, 99 DAR 5811

Internal complaint to employer concerning alleged wage/hour violation is protected by the anti-retaliation provisions of the Fair Labor Standards Act, 29 U.S.C. §215(a)(3), despite the fact that the language of the statute simply refers to an employee who “has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . .”. Formal administrative or civil complaint not required for protection against retaliation.

4. Wrongful Termination/Constructive Termination

Green v. Ralee Engineering Co., (1998) 19 Cal. 4th 66, 78 Cal. Rptr. 2d 16

Expands basis of wrongful termination in violation of public policy claims to include claims based on fundamental public policies which are delineated in administrative regulations, as well as statutory or constitutional provisions. Administrative regulations can only be a source of fundamental public policy when they implement an important statutory objective such as public safety and promote a clearly mandated public policy.

Phillips v. Gemini Moving Specialists, (1998) 63 Cal. App. 4th 563, 74 Cal. Rptr. 2d 29

Establishes a cause of action for wrongful discharge in violation of public policy articulated in California’s Labor Code provisions requiring prompt payment of wages to employees. Casual employee of moving company stated a claim where he alleged he was not given work after complaining that the employer deducted funds from his paycheck to pay for towing moving van employee filled with incorrect gasoline.

Cabesuela v. Browning-Ferris Industries of California, Inc., (1998) 68 Cal. App. 4th 101, 80 Cal. Rptr. 2d 60

Plaintiff, a convicted felon on parole, made statements in an employee meeting that a supervisor interpreted as being threats of violence. Plaintiff was suspended and subsequently terminated for the alleged threats. The Court of Appeal reversed a demurrer granted in the employer’s favor. Because he raised issues concerning workplace safety at the employee meeting, plaintiff could allege wrongful termination in violation of public policy, violation of Labor Code § 6310, and intentional infliction of emotional distress. The court also found that Labor Code § 6312, which provides a remedy before the Labor Commissioner for retaliation for reporting occupational safety complaints, is not an exclusive remedy.

Gelini v. Tishgart, (1999) 77 Cal. App. 4th 219, 91 Cal. Rptr. 2d 447

A claim for wrongful termination in violation of public policy can arise where the employee retains an attorney to write a demand letter to her employer, who fines her shortly after receipt of the demand letter. The public policy claim is based on Labor Code § 923, which the court holds is applicable to individuals acting on their own, without the necessity of concerted activity involving other employees. The court stated that, were the issue one of first impression, it would find no claim in favor of an individual employee acting only on her own behalf. However, it based its holding on the fact that several other, earlier cases found a claim for wrongful termination in violation of public policy under similar circumstances.

Binder v. Aetna Life Ins. Co., (1999) 75 Cal. App. 4th 832, 89 Cal. Rptr. 2d 540

In order to prevail on summary judgment in a case involving an implied contract to terminate only for cause, the employer defendant must establish that the employee was fired for “good cause.” To make this showing, the employer defendant must prove that in light of all the surrounding circumstances, there is no possibility of a reasonable inference that the plaintiff’s termination was motivated by “fair and honest reasons, regulated by good faith, [or] in accordance with the parties’ manifest intentions.” Thus, there should be no legitimate evidence that the termination was motivated by trivial, arbitrary, capricious, non-business related or pretextual reasons.

Halvorsen v. Aramark Uniform Services, Inc., (1998) 65 Cal. App. 4th 1383, 77 Cal. Rptr. 2d 383

The existence of an express at-will agreement precludes the existence of an implied contract requiring good cause for termination, absent proof of a subsequent express agreement modifying the written employment contract. An alleged oral contract with vague and uncertain terms is not binding and is ineffectual as a modification.

Under the manager’s privilege, a manager may not be held liable for interference with contractual relations if the predominant motive is proper, even if there is a coexistent but nonpredominant improper motive.

Eisenberg v. Alameda Newspapers, Inc., (1999) 74 Cal. App. 4th 1359, 88 Cal. Rptr. 2d 802

A contract requiring termination only “for cause” will not be implied if there is an express writing providing to the contrary because there cannot be a valid express contract and an implied contract, each embracing the same subject but compelling different results.

An “at-will” employee cannot use the implied covenant of good faith and fair dealing to create a “for cause” employment contract where none exists.

Deschene v. Pinole Point Steel Company , (1999) 76 Cal. App. 4th 433, 90 Cal. Rptr. 2d 15

Union-represented employee may bring claim for disability discrimination and wrongful termination in violation of public policy (alleged retaliatory termination for giving adverse testimony in a deposition), notwithstanding his being covered by a collective bargaining agreement. Federal Labor Law does not preempt the state claims. However, claims for breach of contract and for breach of the implied covenant of good faith and fair dealing are preempted.

Huskey v. City of San Jose, et al., (9th Cir. 2000) ___ F.3d ___, 2000 WL 204770

This case was brought under 42 U.S.C. §1983 by a City of San Jose deputy city attorney, but it is noteworthy for its discussion of the law of constructive termination. Rejecting a constructive discharge claim, the Ninth Circuit held that being criticized by a supervisor, given the “cold shoulder” by his colleagues, assigned cases he felt were unattractive, and receiving a negative evaluation, together, did not constitute constructive termination as a matter of law.

5. Privacy

Smith v. Fresno Irrigation District, (1999) 72 Cal. App. 4th 147, 84 Cal. Rptr. 2d 775

Random drug testing program by public-sector employer upheld against challenges under United States and California constitutions. The employee held safety-sensitive job and had received six-months notice prior to implementation of the drug testing policy. Review of the case was denied by the California Supreme Court.

Shulman v. Group W Productions, Inc., (1998) 18 Cal. 4th 200, 74 Cal. Rptr. 2d 843

Although not an employment case, this California Supreme Court privacy ruling may have application in employment matters. The court held that a victim of a traffic accident could bring a common law privacy claim for intrusion into private matters, based on a news media broadcast of her discussions with a nurse while she was being rescued from the accident and transported to the hospital. The court held that the victim’s communications with the nurse might have been subject to her expectation of privacy. The court held that the Constitutional privacy claim recognized in Hill v. National Collegiate Athletic Association, (1994) 7 Cal. 4th 1, 26 Cal. Rptr. 2d 834 is separate from and does not limit common law privacy claims such as tortuous intrusion into private affairs or tortuous publication of private facts.

Pilkington Barnes Hind v. Superior Court, (1998) 66 Cal. App. 4th 28, 77 Cal. Rptr. 2d 596

Although suspicion-less drug testing is constitutionally permissible for job applicants but not for employees, a job applicant who delays such testing until shortly after the commencement of employment cannot evade the employer’s testing requirement on the grounds that he or she is now an employee and no longer an applicant. Under these facts, such testing is constitutionally permissible and the employee may be terminated for a positive test result.

Sanders v. American Broadcasting Companies et al., (1999) 20 Cal. App. 4th 907, 85 Cal. Rptr. 2d 909

Plaintiff could state a common law claim for invasion of privacy based on covert video taping of conversations involving co-workers by a journalist posing as a co-worker. The common law claim could be brought despite a jury’s finding that there was no claim under Penal Code § 632 because the conversations involving co-workers were not “confidential communications.” The California Supreme Court held that the common law tort of invasion of privacy by intrusion does not require a reasonable expectation of “complete privacy.” “The fact that co-workers may have observed a workplace interaction does not as a matter of law eliminate all expectations of privacy the participants may reasonably have had vis-à-vis covert videotaping by a stranger to the workplace.”

Norman-Bloodsaw v. Lawrence Berkeley Laboratory, (9th Cir. 1998) 135 F.3d 1260

Plaintiffs who were required to undergo medical examinations shortly after beginning employment, who were asked intrusive medical history questions, and who provided blood and urine samples, could proceed to trial on state and federal privacy claims and a claim under Title VII for pregnancy discrimination. The employer is a public employer and therefore subject to Fourth Amendment restrictions. The Court questioned whether the employer had any valid interest in asking medical history questions concerning such things as sickle cell anemia, venereal diseases and menstrual disorders. Blood and urine samples were tested for sickle cell anemia, syphilis and pregnancy, among other things. ADA claim fails because examinations conducted after an offer of employment is made, are not restricted to information that is job related or consistent with business necessity.

Flanagan v. Flanagan, (1999) 77 Cal. App. 4th 122

Adopts the Ninth Circuit’s test for determining when a communication is confidential under the Invasion of Privacy Act. A communication is confidential if: (1) it reasonably appears that at least one of the parties desires it too be exclusive to the parties; and (2) the desire for exclusivity is objectively reasonable under the circumstances. Telephone communications between father and son were not confidential where they involved logistics such as setting and confirming appointments and seeking directions, but were confidential when they concerned retaining a divorce attorney for father and investigations into community property assets second wife may have appropriated.

Hoefer v. Fluor Daniel, Inc., (C.D. Cal. 1999) 50 F. Supp. 2d 975

State statute prohibiting retaliation against employee for disclosing information to government or in furthering false claim action did not apply to employees communicating with federal government because the state statute is preempted by the Federal False Claims Act.

Intracorporate conspiracy doctrine, which precludes a finding of conspiracy between a corporation and its agents and employees, applies to conspiracies to deny civil rights under federal Civil Rights Act. Accordingly, such claims cannot be brought against a corporation.

6. Intellectual Property/non-competition provisions

International Business Machines Corp. v. Bajorek, (9th Cir. 1999) 191 F.3d 1033

Forfeiture provision in stock option agreement upheld despite claim that it violated California Business and Professions Code § 16600 and Labor Code § 221. The Ninth Circuit held that (1) New York choice of law provision in the option agreement was valid; (2) there was no showing of invalidity of the forfeiture provision under either California Labor Code § 221 or Business and Professions Code § 16600 and therefore no reason to disregard the New York choice of law provision; (3) under California law a restrictive provision, is enforceable, post-termination, if the ex-employee is “barred from pursuing only a small or limited part of the trade, business, or profession .” In this case, the forfeiture went into effect only if the ex-employee began to work for a competitor within six months after his termination by the employer. The Ninth Circuit also held that Labor Code § 221 is inapplicable because stock options are not “wages” as defined in that section.

Electro Optical Industries v. White, (1999) 90 Cal. Rptr. 2d 680, 76 Cal. App. 4th 653

Appellate Court states that California will follow the “inevitable disclosure” doctrine but refuses to issue injunction to prevent disclosure or use of alleged trade secrets. The Court found that most of the “trade secrets” were matters of common knowledge, or not proprietary, or otherwise not trade secrets as defined by the statute.

7. Discovery

Allison v. Workers Compensation Appeals Board (Del Amo Mobile Homes Estates), (1999) 72 Cal. App. 4th 654, 84 Cal. Rptr. 2d 915

In this workers compensation case, the claimant alleged a wrist injury incurred in the course of her employment. The employer requested discovery into her prior medical problems including a thyroid condition. The Court of Appeal overturned a Workers Compensation Judge’s Order which permitted not only the discovery regarding the thyroid condition but other general medical information. The case was remanded to the Workers Compensation Judge for a review of the proper scope of the medical inquiry.

8. Damage issues

Kolstad v. American Dental Association, (1999) 527 U.S. 526, 119 S. Ct. 2118

The United States Supreme Court rejects a contention that the employer’s conduct must be “egregious” to justify punitive damages under federal civil rights statutes. “Malice” or “reckless indifference to the federally protected rights of an aggrieved individual” are the statutory requirements. The Supreme Court states that “an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.” The Court goes on to establish a defense for employers: “An employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employers’ efforts to comply with Title VII.” 119 S. Ct. at 2129.

Gotthardt v. National Railroad Passenger Corp.,(9th Cir. 1999) 191 F. 3d 1148

Federal damage limitations in Title VII do not apply to front pay awards. Ninth Circuit upholds front pay award to the 70th birthday of plaintiff and finds no failure to mitigate damages.

Cloud v. Casey, (1999) 76 Cal. App. 4th 895, 90 Cal. Rptr. 2d 757

Plaintiff may be able to establish a gender discrimination claim, based on a failure to promote, even though she failed as a matter of law to establish she was constructively discharged.

An employee who has been discriminatorily denied a promotion is not precluded from recovering backpay for the period after her voluntary resignation, even if she cannot show she was constructively discharged. The statutory objective of FEHA is to make the victim of discrimination whole. Plaintiff may present evidence of post-resignation damages in a failure to promote case. The Appeals Court also reinstated a finding of malice, and remanded for a trial on the amount of punitive damages. The jury could find malice based on the discriminatory acts and the employer’s pretextual explanations for the failure to promote.

Linsley v. 20th Century Fox Film Corporation, (1999) 75 Cal. 4th 762, 89 Cal. Rptr. 2d 429

Award of attorneys’ fees to prevailing employer upheld. Plaintiff signed a valid release of all claims but sued nonetheless, continuing to litigate after his counsel had been advised of the existence of the release. The employer was also awarded attorney fees on appeal.

Sposato v. Electronic Data Systems Corp., et al., (9th Cir. 1999) 188 F.3d 1146

Employee recovered a wrongful termination judgment under FEHA and then was killed during the back pay period. The economic damages award included the value of life insurance provided by the company that committed the wrongful termination. The Ninth Circuit held that the proper measure of damages includes the face value of the employer-provided policy, less the proceeds received under a substitute policy obtained by the employee in an effort to mitigate the damages caused by the loss of employment benefits. California’s survival statute, Code of Civil Procedure Section 377.34, does not bar recovery of the life insurance proceeds because they constitute a pecuniary loss and were for the benefit of the deceased employee’s family, not her personal benefit.

9. ARBITRATION

Several reported decisions have appeared in the last year concerning the enforceability of mandatory, predispute arbitration agreements. The issue may be resolved, at least in part, when the California Supreme Court issues its ruling in Armendariz v. Foundation Health Sight Care Psychcare Services, Inc., (1998) 68 Cal. App. 4th 374, 80 Cal. Rptr. 2d 255, review granted, (1999) 83 Cal. Rptr. 2d 274.

In Armendariz, which cannot currently be cited due to the pending California Supreme Court decision, the Court of Appeal, First District, Division One, severed the offensive provisions of the arbitration agreement and ordered the matter to arbitration, relying on Graham   Scissor-Tail, Inc. , (1981) 28 Cal. 3d 807, 171 Cal. Rptr. 604.

The Ninth Circuit, in Duffield v. Robertson Stephens, Inc., (9th Cir. 1998) 144 F.3d 1182, held that statutory discrimination claims cannot be compelled to arbitration under a mandatory predispute arbitration agreement. However, the Duffield decision has not been followed either by other Federal Circuits or by California State Courts. Certiorari was denied in Duffield by the United States Supreme Court.

The Ninth Circuit has also held that ordinary employment contracts are not covered by the Federal Arbitration Act, 9 U.S.C. 1, et seq., so federal preemption does not arise. Craft v. Campbell Soup Co., (9th Cir. 1999) 177 F.3d 1083. Several other federal circuits have disagreed, finding that the FAA does apply to ordinary employment contracts, except for workers actually moving goods in interstate commerce.

Other arbitration decisions include:

Lagatree v. Luce Forward Hamilton & Scripps, (1999) 74 Cal. App. 4th 1105, 88 Cal. Rptr. 2d 664. Refusal to sign mandatory arbitration agreement which results in termination does not support a wrongful termination in violation of public policy, since public policy favors arbitration.

Ramirez v. Circuit City Stores, Inc., (1999) 76 Cal. App. 4th 1229, 90 Cal. Rptr. 2d 916. arbitration agreement not enforced where arbitrator was prohibited from hearing class claims and arbitration clause included restrictions on discovery, caps on damages and shortening of the statute of limitations.

24-Hour Fitness, Inc. v. Superior Court, 66 Cal. App. 4th 1199, 78 Cal. Rptr. 2d 533 (1998) upholds an arbitration agreement even though some claims are not subject to the agreement. Compels arbitration of claims against individuals who did not sign the agreement because they are agents of the employer, who did sign. Rejects Duffield as contrary to existing California state law authority. Rejects a claim that the arbitration agreement is invalid because it is unconscionable and lacks mutuality.

The following general observations can be made about arbitration clauses:

(1) Clauses that do not have harsh, anti-employee provisions (such as short statutes of limitations, limitations on damages, or limitations on discovery) are much more likely to be upheld in state court;

(2) In Federal courts in California, the Duffield case will apply and the arbitration provision will probably not be enforced to compel arbitration of state or federal anti-discrimination statutory claims;

(3) Even in Federal Courts in California, a proper arbitration clause can be used to compel arbitration of state common-law tort or contract claims;

(4) Armendariz should resolve the issue whether the Court will sever offensive or harsh provisions of the arbitration agreement and enforce the basic agreement to arbitrate.

OFFICIAL NOTICE

INDUSTRIAL WELFARE COMMISSION

Summary of Interim Wage Order--2000

To employers and representatives of persons working in industries and occupations in the State of California:

The Industrial Welfare Commission (hereinafter the "IWC"), having proceeded according to its authority in the Labor Code and the Constitution of California, has promulgated an Interim Wage Order - 2000, to implement amendments to Wage Orders 1 through 15, in effect in 1998, as the result of the Legislature's enactment of the "Eight-Hour-Day Restoration and Workplace Flexibility Act," Stats. 1999, ch. 134 (commonly referred to as AB 60). The Interim Wage Order covers all industries and occupations not specifically exempted herein, by Wage Orders 1 through 15, or by governing law.

Interim Wage Order-2000 Summary

This summary must be made available to employees in accordance with Section 12 of the Interim Wage Order.

This is a summary. Copies of the full text of the Interim Wage Order may be obtained at www.dir.ca.gov/IWC or by mail from the IWC.

Except for the section pertaining to penalties, the Interim Wage Order does not apply to any person employed in an agricultural occupation as defined in Wage Order 14-80, Agricultural Occupations. Wage Orders 1-98, 4-98, 5-98, 7-98, and 9-98 are null and void. The following Wage Orders are reinstated, as modified in the Interim Wage Order, until the effective date of wage orders promulgated by the Commission pursuant to Labor Code § 517: 1-89, Manufacturing Industry; 4-89, Professional, Technical, Clerical, Mechanical, and Similar Occupations, as amended in 1993; 5-89, Public Housekeeping Industry, as amended in 1993; 7-80, Mercantile Industry; and 9-90, Transportation Industry. The provisions of the following Wage Orders remain in full force and effect except to the extent that they are modified by the Interim Wage Order: 2-80, Personal Service Industry; 3-80, Canning, Freezing, and Preserving Industry; 6-80, Laundry, Linen Supply, Dry Cleaning, and Dyeing Industry; 8-80, Industries Handling Products after Harvest; 10-89, Amusement and Recreation Industry; 11-80, Broadcasting Industry; 12-80, Motion Picture Industry; 13-80, Industries Preparing Agricultural Products for Market, on the Farm; and 15-86, Household Occupations.

Minimum Wage

The terms of Minimum Wage Order 98 (MW-98) continue to be in effect for all industries and occupations. Every employer shall pay to each employee wages not less than $5.75 per hour for all hours worked, effective March 1, 1998.

Covered Employees

Any industry or occupation not previously covered by, and all employees not specifically exempted in, the Commission’s Wage orders in effect in 1997, or otherwise exempted by law, are covered by this Interim Wage Order. In particular, the following employee work activities are now covered by the provisions of this order: on-site construction, drilling, logging, and mining of non-metallic minerals. Sections 4, 5, 7, 8 and 9 of this Order shall not apply to persons employed in administrative, executive, or professional capacities. Please note that pharmacists and registered nurses are no longer eligible for the professional exemption. See the full text of the Interim Wage Order for definitions of these categories.

Hours and Days of Work

The number of hours worked in a day by covered employees without overtime compensation is 8 hours. The number of hours worked in a week by covered employees without overtime compensation is 40 hours. The number of days worked consecutively by covered employees in any workweek without overtime compensation is 6 days.

Daily Overtime Pay

Overtime is paid at the rate of 1 1/2 times the regular rate of pay for every hour worked after the completion of 8 hours worked at the regular rate of pay in 1 workday. Overtime is paid at the rate of double the regular rate of pay for every hour worked after the completion of 12 hours worked in 1 workday.

Weekly Overtime Pay

Overtime is paid at the rate of 1 1/2 times the regular rate of pay for every hour worked after the completion of 40 hours worked at the regular rate of pay in 1 workweek.

Seventh Consecutive Workday Overtime Pay

Overtime is paid at the rate of 1 1/2 times the regular rate of pay for the first 8 hours worked on the seventh consecutive workday in any workweek, without regard to the total number of hours worked in the previous 6 days. Overtime is paid at the rate of double the regular rate of pay for every hour worked after the completion of 8 hours worked on the seventh consecutive workday in any workweek.

Workweeks

An alternative workweek schedule means any regularly scheduled workweek requiring an employee to work more than 8 hours in a 24-hour period, but no more than 40 hours in a workweek. Alternative workweek schedules in effect in wage orders that remain in full force under the Interim Wage Order shall remain operative until the effective date of

wage orders promulgated under Labor Code § 517 by the IWC, subject to the restrictions below.

Alternative Workweeks – Non Health Care IndustryPursuant to a voluntary written agreement proposed by the employer and ratified in a secret ballot election by at least a 2/3 vote of the affected employees in the work unit before the performance of work, a regularly scheduled alternative workweek schedule of not more than 10 hours at the regular rate of pay per day within a 40-hour workweek is permitted. Regarding such a schedule, overtime is paid at the rate of 1 1/2 times the regular rate of pay for all hours worked after the regularly scheduled hours in a day have been completed, through the twelfth hour of work. Overtime is paid at the rate of double the regular rate of pay for every hour worked after the completion of 12 hours worked in 1 workday. Weekly and seventh consecutive day overtime pay provisions apply accordingly.

Alternative Workweeks – Health Care IndustryPursuant to a voluntary written agreement proposed by the employer and ratified in a secret ballot election by at least a 2/3 vote of the affected employees in the work unit before the performance of work, a regularly scheduled alternative workweek schedule of not more than 12 hours at the regular rate of pay per day within a 40-hour workweek is valid until July 1, 2000, and/or until the effective date of a wage order promulgated by the Commission. Overtime is paid at the rate of double the regular rate of pay for every hour worked after the completion of 12 hours in 1 workday. Weekly and seventh consecutive day overtime pay provisions apply accordingly.An employer engaged in the operation of a licensed hospital or in providing personnel for the operation of a licensed hospital, who properly institutes a regularly scheduled workweek that includes no more than three 12-hour workdays, shall make a reasonable effort to find an alternative work assignment for any employee who participated in the vote that authorized the schedule, and is unable to work the 12-hour shifts. The employer shall not be required to offer such an alternative work assignment if the employee was hired after the vote and adoption of the alternative workweek. The regularly scheduled 12-hour workday/3-day alternative workweek shall be valid until July 1, 2000, unless the IWC extends that date.

Alternative Workweeks – Ski IndustryAn employer engaged in the operation of a ski establishment shall not be in violation of overtime provisions set forth in the Interim Wage Order by instituting a regularly scheduled workweek of 56 hours or less during any month of the year when Alpine or Nordic skiing activities are conducted. Such shall be valid until July 1, 2000, unless the Legislature or the Commission extends that date. Overtime is paid at the rate of 1 1/2 times the regular rate of pay for every hour worked after the completion of 56 hours in 1 workweek.

Stable and Commercial Fishing Employees

Stable employees and those employees licensed pursuant to the California Fish and Game Codes §§ 7850 et seq. and 7920 et seq. should refer to the full text of the Interim Wage Order.

Minors

VIOLATIONS OF CHILD LABOR LAWS are subject to civil and criminal penalties. Refer to California Labor Code §§ 1285 to 1312 and 1390 to 1399.

Collective Bargaining Agreements

Sections 3, 4, 5, 8 and 9 of the Interim Wage Order shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage, except that the requirement regarding the equivalent of 1 day’s rest in 7 (see Interim Wage Order, Section 5(H)) shall apply, unless the agreement expressly provides otherwise.

Make Up Time

If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in 1 day or 40 hours of work in 1 workweek.

Meal Periods

An employee must receive a thirty-minute meal period for every 5 hours of work. Pursuant to mutual consent by the employer and the employee: (1) an employee may waive a thirty-minute meal period if the day’s work will be completed in no more than 6 hours; (2) an employee may waive the second of 2 thirty-minute meal periods when the day’s work will be completed in no more than 12 hours and the first thirty-minute meal period was not waived.

Meals and Lodging

Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer’s minimum wage obligation, the amounts so credited may not be more than what is listed in MW-98.

Reporting Time, Pay Records, Cash Shortages and Breakage, Uniforms and Equipment, Rest Periods and Seats

Please refer to the applicable wage order for instruction regarding these subjects.

Violations and Penalties

Any employer or any other person acting on behalf of the employer who violates or causes to be violated the provisions of the Interim Wage Order shall be subject to a civil penalty in addition to any other civil or criminal penalties provided by law. Questions about enforcement and reports of violations should be directed to the Division of Labor Standards Enforcement.

The Interim Wage Order shall be in effect as of March 1, 2000.Questions about enforcement of the Interim Wage Order and reports of violations should be directed to the Division of Labor Standards Enforcement. Consult the white pages of your telephone directory under CALIFORNIA, State of, Industrial Relations for the address and telephone number of the office nearest you. The Division has offices in the following cities: Bakersfield, Eureka, Fresno, Long Beach, Los Angeles, Marysville, Oakland, Redding, Sacramento, Salinas, San Bernardino, San Diego, San Francisco, San Jose, Santa Ana, Santa Barbara, Santa Rosa, Stockton, and Van Nuys.

Interim Wage Order – 2000

1. APPLICABILITY OF ORDER

This Wage Order implements changes in the law as a result of the Legislature’s enactment of the "Eight-Hour-Day Restoration and Workplace Flexibility Act," Stats. 1999, ch. 134 (commonly referred to as AB 60). Pursuant to that legislation, the Industrial Welfare Commission’s Wage Orders 1 through 15, in effect in 1998, have been amended as set forth below. Any industry or occupation not previously covered by, and all employees not specifically exempted in, the Commission’s Wage Orders in effect in 1997, or otherwise exempted by law, are covered by this order. In particular, the following employee work activities are now covered by the provisions of this order: construction, including, but not limited to, alteration, demolition, building, renovation, remodeling, improvement and repair work as defined in the California Business and Professions Code Division 3, Chapter 9, Sections 7025 et seq.; drilling, including but not limited to, all work required to drill, establish, repair, and rework wells for the exploration or extraction of oil, gas, or water resources; logging work for which a timber operator’s license is required pursuant to California Public Resources Code Sections 4571 through 4586; and, mining (not covered by Labor Code § 750 et seq.), including all work required to mine and/or establish pits, quarries, and surface or underground mines for the purposes of exploration or extraction of nonmetallic minerals, metallic ores, coal, and building materials such as stone and gravel. Except for Section 10 below pertaining to penalties, this Order does not apply to any person employed in an agricultural occupation as defined in Wage Order 14-80, Section 2(C). Wage Orders 1-98, 4-98, 5-98, 7-98, and 9-98 are null and void. Wage Orders 1-89, 4-89 as amended in 1993, 5-89 as amended in 1993, 7-80, and 9-90 are reinstated, as modified herein, until the effective date of wage orders promulgated by the Commission pursuant to Labor Code § 517. The provisions of Wage Orders 2-80, 3-80, 6-80, 8-80, 10-89, 11-80, 12-80, 13-80, and 15-86 remain in full force and effect except to the extent that they are modified by this Order. However, pursuant to Labor Code § 515(b)(2) the alternative workweek schedules in effect in these wage orders shall remain operative until the effective date of wage orders promulgated by the Commission pursuant to Labor Code § 517.

2. DEFINITIONS

(A) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day.

(B) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods.(C) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period.

3. ADMINISTRATIVE, EXECUTIVE, AND PROFESSIONAL EMPLOYEES

Sections 4, 5, 7, 8 and 9 of this Order shall not apply to persons employed in administrative, executive, or professional capacities. However, no person shall be considered to be employed in an administrative, executive, or professional capacity unless the person is primarily engaged in the duties which meet the test of the exemption and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Labor Code § 515(a) mandates that the Commission conducts a review of the duties which meet the test of the exemption and that any hearing conducted pursuant to that subsection be conducted no later than July 1, 2000. Until further order of the Commission, the duties which meet the tests of the exemption are one of the following set of conditions:

(A) The employee is engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, or

(B) The employee is licensed or certified by the State of California and is engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or is engaged in an occupation commonly recognized as a learned or artistic profession; provided, however, that pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subsection unless they individually meet the criteria established for exemption as executive or administrative employees.(C) For the purposes of this section, "Full-time employment" means employment in which an employee is employed for forty (40) hours per week.

(D) For the purposes of this section, "primarily" means more than one-half (1/2) of the employee’s work time.

4. DAILY OVERTIME – GENERAL PROVISIONS

The following overtime provisions are applicable to employees eighteen (18) years of age or over and to employees sixteen (16) or seventeen (17) years of age who are not required by law to attend school, and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than forty (40) hours in any workweek unless the employee receives one and one-half (1 ½) times such employee's regular rate of pay for all hours worked over forty (40) hours in the workweek. Eight (8) hours of labor constitutes a day’s work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than:

(A) One and one-half (1 ½) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any workday, and for the first eight (8) hours worked on the seventh (7 th) consecutive day of work in a workweek; and

(B) Double the employee's regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek.

(C) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee’s regular hourly salary as one fortieth (1/40) of the employee’s weekly salary.

5. ALTERNATIVE WORKWEEKS

(A) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to a voluntary written agreement proposed by the employer and ratified in a secret ballot election by at least a two-thirds (2/3) vote of the affected employees in the work unit before the performance of work, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a forty (40) hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to twelve (12) hours a day or beyond forty (40) hours per week shall be paid at one and one-half (1 ½) times the employee's regular rate of pay. All work performed in excess of twelve (12) hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. No hours paid at either one and one-half (1 ½) or double the regular rate of pay shall be included in determining when forty (40) hours have been worked for the purpose of computing overtime compensation. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another.

(B) If an employer, whose employees have adopted an alternative workweek agreement permitted by this Order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 ½) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of twelve (12) hours for the day the employee is required to work the reduced hours.

(C) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule.

(D) An employer shall explore any available reasonable alternative means of

accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section 12940 of the Government Code.

(E) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this Section and who is unable to work the alternative workweek schedule established as the result of that election.

(F) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election.

(G) The results of any election conducted pursuant to this Section shall be reported by the employer to the Division of Labor Statistics and Research within thirty (30) days after the results are final.

(H) Any type of alternative workweek schedule that is authorized by the Labor Code and that was in effect on January 1, 2000, may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. If the alternative workweek schedule is revoked, the employer shall comply within sixty (60) days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. However, if an employee covered by Wage Orders 1, 4, 5, 7, or 9 was voluntarily working an alternative workweek schedule as of July 1, 1999, that was an individual agreement made after January 1, 1998 between the employee and employer, and that agreement provides for a workday of not more than ten (10) hours, that employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in that schedule if the employee submits, and the employer approves, a written request to do so. Such a written request and approval shall be made within ninety (90) days of the effective date of this Order. An employee may revoke his or her voluntary authorization to continue such a schedule with thirty (30) days written notice to the employer.

(I) The provisions of Labor Code §§ 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7). (J) Notwithstanding the above provisions regarding alternative workweek schedules, employees in the health care industry may continue to work days exceeding ten (10) hours but not more than twelve (12) hours without the payment of overtime compensation, as long as the employer and at least two-

thirds (2/3) of the affected employees in a work unit agreed to this alternative workweek arrangement, in a secret ballot election held pursuant to Wage Orders 4 and 5 prior to 1998, and before the performance of work. Such alternative workweek schedules shall be valid until July 1, 2000, and/or until the effective date of a wage order promulgated by the Industrial Welfare Commission pursuant to Labor Code § 517, provided:

(1) An employee who works beyond twelve (12) hours in a workday shall be compensated at double the employee’s regular rate of pay for all hours in excess of twelve (12);

(2) An employee who works in excess of forty (40) hours in a workweek shall be compensated at one and one-half (1 ½) times the employee’s regular rate of pay for all hours over forty (40) hours in the workweek;

(3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees’ wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least fourteen (14) days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. Failure to comply with this Section shall make the election null and void;

(4) The same overtime standards shall apply to employees who are temporarily assigned to a work unit covered by this subsection;

(5) Any employer who instituted an alternative workweek schedule pursuant to this subsection shall make a reasonable effort to find another work assignment for any employee who participated in a valid election prior to 1998 pursuant to the provisions of Wage Orders 4 and 5 and who is unable to work the alternative workweek schedule established.

(6) For purposes of this subsection, affected employees may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection is met.

(K) An employer engaged in the operation of a ski establishment shall not be in violation of overtime provisions set forth in this order by instituting a regularly scheduled workweek of fifty-six (56) hours or less during any month of the year when Alpine or Nordic skiing activities are conducted, provided that any employee shall be compensated at a rate of not less than one and one-half (1 ½) times the employee’s regular rate of pay for all work in excess of fifty-six (56) hours in any one (1) workweek. A ski establishment within the meaning of this Section is a geographically limited recreational area comprising basic skiing and

related facilities. Such alternative workweek schedules shall be valid until July 1, 2000, unless the Industrial Welfare Commission extends that date.

(L) An employer engaged in the operation of a licensed hospital or in providing personnel for the operation of a licensed hospital who institutes, pursuant to a valid order of the Commission, a regularly scheduled alternative workweek that includes no more than three (3) 12-hour workdays, shall make a reasonable effort to find another work assignment for any employee who participated in the vote which authorized the schedule and is unable to work the 12-hour shifts. An employer shall not be required to offer a different work assignment to an employee if such a work assignment is not available or if the employee was hired after the adoption of the 12-hour, 3-day alternative workweek schedule. Such alternative workweek schedules shall be valid until July 1, 2000, unless the Industrial Welfare Commission extends that date.

(M) Notwithstanding the above overtime provisions, stable employees as defined in Labor Code § 1182.10 who are involved in the raising, feeding and management of racehorses by a trainer, as defined in the Food and Agriculture Code § 24001, shall be subject to the same standards governing the wages, hours, and working conditions as established for employees in agricultural occupations engaged in the raising, feeding, and management of other livestock; provided that stable employees shall be paid an overtime rate of compensation of one and one-half (1 ½) times the employee’s regular rate of pay for all work in excess of ten (10) hours in any workday, or fifty-six (56) hours during seven (7) days in any workweek without the payment of overtime compensation. "Workday" and "workweek" have the same definition as in the Commission’s wage order for agricultural occupations. A "regular rate of pay" does not include amounts excluded from regular pay by the Fair Labor Standards Act (29 U.S.C. § 207(E)), as well as payment of the stable employee’s share, if any, of the purse of a race. This subsection is valid until July 1, 2000 unless the Industrial Welfare Commission extends that date.(N) The minimum wage or maximum hour orders of the Commission shall not apply to employees licensed pursuant to the California Fish and Game Code §-7850 et seq., or employed on a commercial passenger fishing boat licensed pursuant to California Fish and Game Code § 7920 et seq. This exemption shall remain in effect until July 1, 2000, unless the Industrial Welfare Commission extends that date.

6. MINORS

VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code §§ 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.

7. COLLECTIVE BARGAINING AGREEMENTS

(A) Sections 3, 4, 5, 8 and 9 of this Order shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than thirty (30) percent more than the state minimum wage.

(B) Notwithstanding Section 7(A), where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day’s rest in seven (7) (see Section 5(H) above) shall apply, unless the agreement expressly provides otherwise.

8. MAKE UP TIME

If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting make up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the make up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this Section. While an employer may inform an employee of this make up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this Section.

9. MEAL PERIODS

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee.

(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than thirty (30) minutes, except that if the total hours worked is no more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

10. PENALTIES

In addition to any other civil or criminal penalty provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to a civil penalty of:

(A) Initial Violation - $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover underpaid wages.

(B) Subsequent Violations - $100.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient recover underpaid wages.

(C) The affected employee shall receive payment of all wages recovered.

The Labor Commissioner may also issue citations pursuant to Labor Code § 1197.1 for payment of wages for overtime work in violation of this order.

11. SEPARABILITY

If the application of any provision of this Order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this Order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein.

12. POSTING OF ORDER

Every employer shall keep a copy of this Order posted in an area frequented by employees where it may easily be read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this Order and make it available to every employee upon request. For industries previously covered under wage orders, this Order shall be posted immediately adjacent to Wage Orders 1-89, 2-80, 3-80, 4-89 as amended in 1993, 5-89 as amended in 1993, 6-80, 7-80, 8-80, 9-90, 10-89, 11-80, 12-80, 13-80, and 15-86. Section 10 of this Order shall be posted immediately adjacent to Wage Order 14-80.________________________________________________________________This Order becomes effective on March 1, 2000.Revised February 14, 2000

Ms. Reinglass and Mr. Howard thank Shelley Orcutt, Dawn Bradberry, Sally Costanzo, Kimberly Buffington and Emily Flynn, all associates with Pillsbury Madison & Sutro LLP, who contributed to this paper.

TABLE OF CONTENTS

I. STATUTORY DEVELOPMENTS...............................................................................2

A. Assembly Bill 60 (Overtime After Eight Hours Per Day Reinstated) 2

B. Assembly Bill 109 (Use of Paid Sick Leave) 7

C. Assembly Bill 1001 (Amendments to FEHA) (incorporating AB 1670, SB 1185) 10

D. Senate Bill 26 (Prohibition of Disparate Impact Age Discrimination) 15

E. Senate Bill 56 (Time Off For Court Appearances) 17

F. Assembly Bill 1268 (Labor Disputes) 19

G. Pending (But Not Enacted) State and Federal Employment-Related Legislation 21

II. EMPLOYMENT DISCRIMINATION......................................................................23

A. Discrimination/harassment – General and Procedural Issues 23

B. Discrimination - Age 26

C. Discrimination - Sex/Sexual Harassment/ Pregnancy 27

D. Discrimination - Disability 29

E. Discrimination - Family & Medical Leave Act 33

III. Labor Code/Wage-Hour...........................................................................................34

IV. Wrongful Termination/Constructive Termination.....................................................35

V. Privacy...................................................................................................................... 38

VI. Intellectual Property/non-competition provisions.....................................................40

VII. Discovery................................................................................................................ 41

VIII. Damage issues....................................................................................................... 42

IX. ARBITRATION....................................................................................................... 44

X. ICW - SUMMARY OF INTERIM WAGE ORDER 2000.........................................45....................................................................................................................................

- i -50092227V1

TABLE OF AUTHORITIES

24-Hour Fitness, Inc. v. Superior Court,66 Cal. App. 4th 1199, 78 Cal. Rptr. 2d 533 (1998) ....44Aguilar v. Avis Rent-A-Car Systems,(1999) 21 Cal. 4th 121, 87 Cal. Rptr. 2d 132 ..................24Albertson’s Inc. v. Kirkinburg,(1999) 527 U.S. 555, 119 S.Ct. 2162.........................................29Allison v. Workers Compensation Appeals Board (Del Amo Mobile Home Estates),(1999) 72

Cal. App. 4th 654, 84 Cal. Rptr. 2d 915...........................................................................41Anderson v. Reno, (9th Cir. 1999) 190 F.3d 930 .......................................................................24Armendariz v. Foundation Health Sight Care Psychcare Services, Inc., 1998) 68 Cal. App. 4th

374, 80 Cal. Rptr. 2d 255, review granted, (1999) 83 Cal. Rptr. 2d 274...................44, 45

Barnett v. US Air, Inc., (9th Cir. 1999) 196 F.3d 979, rehearing en banc granted (Feb. 1, 2000) 2000 WL 130725............................................................................................................ 30

Bierbower v. FHP, Inc.,(1999) 70 Cal. App. 4th 1, 82 Cal. Rptr. 2d 393 ..................................27

Binder v. Aetna Life Ins. Co., (1999) 75 Cal. App. 4th 832, 89 Cal. Rptr. 2d 540 36Broussard v. University of California,(9th Cir. 1999) 192 F.3d 1252 31Burlington Industries, Inc. v. Ellerth,118 S. Ct. 2257 27Cabesuela v. Browning-Ferris Industries of California, Inc., (1998) 68 Cal. App. 4th 101, 80

Cal. Rptr. 2d 60 35Carrisales v. Department of Corrections, et al.(1999) 21 Cal. 4th 1132, 90 Cal. Rptr. 2d 804

23City of Moorpark v. Superior Court,(1998) 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445 31,34Cleveland v. Policy Management Systems, Corp., (1999) 526 U.S. 795, 119 S. Ct. 1597 29Cloud v. Casey,(1999) 76 Cal. App. 4th 895, 90 Cal. Rptr. 2d 757 42Craft v. Campbell Soup Co., (9th Cir. 1999) 177 F.3d 1083 .....................................................44

Deschene v. Pinole Point Steel Company , (1999) 76 Cal. App. 4th 433, 90 Cal. Rptr. 2d 15 36

Dominguez-Cruz v. Suttle Caribe, Inc., (1st Cir. 2000) ___ F.3d ___, 2000 WL 97676 26Duffield v. Robertson Stephens, Inc., (9th Cir. 1998) 144 F.3d 1182 ........................................44

Eisenberg v. Alameda Newspapers, Inc.,(1999) 74 Cal. App. 4th 1359, 88 Cal. Rptr. 2d 802.....36

Electro Optical Industries v. White, (1999) 90 Cal. Rptr. 2d 680, 76 Cal. App. 4th 653 40Faragher v. City of Boca Raton,118 S. Ct. 2275 27Flanagan v. Flanagan, (1999) 77 Cal. App. 4th 122 39Fretland v. County of Humboldt(1999) 69 Cal. App. 4th 1478, 82 Cal. Rptr. 2d 359 34Gelini v. Tishgart(1999) 77 Cal. App. 4th 219, 91 Cal. Rptr. 2d 44735Gibbs v. American Airlines, (1999) 74 Cal. App. 4th 1, 87 Cal. Rptr. 2d 554 33Godwin v. Hunt Wesson, Inc., (9th Cir. 1998) 150 F.3d 1217 ............................................23, 25

Gotthardt v. National Railroad Passenger Corp.,(9th Cir. 1999) 191 F.3d 1148..........................42

Graham Scissor-Tail, Inc., (1981) 28 Cal. 3d 807, 171 Cal. Rptr. 604 ......................................44

Green v. Ralee Engineering Co., (1998) 19 Cal. 4th 66, 78 Cal. Rptr. 2d 16 35Halvorson v. Aramark Uniform Services, Inc.,(1998) 65 Cal. App. 4th 1383, 77 Cal. Rptr. 2d 383

36Hanson v. Lucky Stores, Inc.(1999) 74 Cal. App. 4th 215, 87 Cal. Rptr. 2d 487 31Hill v. National Collegiate Athletic Association, (1994) 7 Cal. 4th 1, 26 Cal. Rptr. 2d 834 ......38

Hobson v. Raychem Corporation, (1999) 73 Cal. App. 4th 614, 86 Cal. Rptr. 2d 497 30

Hoefer v. Fluor Daniel, Inc., (C.D. Cal. 1999) 50 F. Supp. 2d 975 39Horn v. Cushman & Wakefield Western, Inc.(1999) 72 Cal. App. 4th 798, 85 Cal. Rptr. 2d 459

26Hovanec v. Van Nuys Airport Rest. Corp.(1999) 76 Cal. App. 4th 879, 91 Cal. Rptr. 2d 20

24Huskey v. City of San Jose, et al., (9th Cir. 2000) ___ F.3d ___, 2000 WL 204770 37International Business Machines Corp. v. Bajorek, (9th Cir. 1999) 191 F.3d 1033 40Kaiser Foundation Hospitals v. Superior Court(1998) 66 Cal. App. 4th 1217, 78 Cal. Rptr. 2d

543 27Kimel v. Florida Board of Regents, (2000) ______ U.S. ______, 120 S. Ct. 631 26Kohler v. Inter-Tel Technologies,(N. D. Cal. 1999) 1999 WL 226208 27Kolstad v. American Dental Association,(1999) 527 U.S. 526, 119 S.Ct. 2118 42Kovatch v. California Casualty Management Company, Inc., et al., (1998) 65 Cal. App. 4th

1256, 77 Cal. Rptr. 2d 217 28Krocka v. City of Chicago, (7th Cir. 2000) ___ F.3d ___, 2000 WL 137441 32Lagatree v. Luce Forward Hamilton & Scripps,(1999) 74 Cal. App. 4th 1105, 88 Cal. Rptr. 2d

664 44Lambert v. Ackerley, et al., (9th Cir. 1999) 180 F.3d 997, 99 DAR 5811 34Linsley v. 20th Century Fox Film Corporation, (1999) 75 Cal. 4th 762, 89 Cal. Rptr. 2d 429

42Marchischeck v. San Mateo County, (9th Cir. 1999) 199 F.3d 1068 33McAlindin v. County of San Diego, (9th Cir. 1999) 192 F.3d 1226 30Muller v. Automobile Club of Southern California (1998) 61 Cal. App. 4th 431, 71 Cal. Rptr. 2d

573................................................................................................................................. 30

Murphy v. United Parcel Service, Inc., (1999) 527 U.S. 516, 119 S.Ct. 2133............................29

Nelson v. United Technologies,(1999) 74 Cal. App. 4th 597, 88 Cal. Rptr. 2d 239.....................33

Norman-Bloodsaw v. Lawrence Berkeley Laboratory, (9th Cir. 1998) 135 F.3d 1260 39Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709, 70 Cal. Rptr. 2d 531........................30

Phillips v. Gemini Moving Specialists, (1998) 63 Cal. App. 4th 563, 74 Cal. Rptr. 2d 29 35Pilkington Barnes Hind v. Superior Court, (1998) 66 Cal. App. 4th 28, 77 Cal. Rptr. 2d 596

38Ramirez v. Circuit City Stores, Inc.,(1999) 76 Cal. App. 4th 1229, 90 Cal. Rptr. 2d 916 44Real v. City of Compton,(1999) 73 Cal. App. 4th 1407, 87 Cal. Rptr. 2d 531 31Reeves v. Sanderson Plumbing Products, Inc., (5th Cir. 1999) 197 F.3d 688, certiorari granted,

120 S. Ct. 444 (Nov. 8, 1999) 23Reno v. Baird,(1998) 18 Cal. 4th 640, 76 Cal. Rptr. 2d 499 23Sanders v. American Broadcasting Companies et al., (1999) 20 Cal. App. 4th 907, 85 Cal. Rptr.

2d 909 ........................................................................................................................... 38

Shulman v. Group W Productions, Inc., (1998) 18 Cal. 4th 200, 74 Cal. Rptr. 2d 843 38Smith v. Fresno Irrigation District,(1999) 72 Cal. App. 4th 147, 84 Cal. Rptr. 2d 775 38Spaziano v. Lucky Stores, Inc., (1999) 69 Cal. App. 4th 106, 81 Cal. Rptr. 2d 378 27Sposato v. Electronic Data Systems Corp., et al., (9th Cir. 1999) 188 F.3d 1146 43St. Mary's Honor Center v. Hicks, (1993) 509 U.S. 502, 113 S. Ct. 2742 .................................23

Stoll v. Runyon, (9th Cir. 1999) 165 F.3d 1238 25Sutton v. United Airlines, Inc., (1999) 527 U.S. 471, 119 S. Ct. 2139 29, 31

Swenson v. County of Los Angeles, (1999) 75 Cal. App. 4th 889, 89 Cal. Rptr. 2d 572,review granted, (2000) 92 Cal. Rptr. 2d 253 30

Taylor v. Lockheed Martin Corporation, (Feb. 23, 2000) ___ Cal. Rptr. 2d ___, 2000 WL 204255 34

Wellington v. Oyon County School District, (9th Cir. 1999) 187 F.3d 1150 31Williams v. City of Belvedere, (1999) 72 Cal. App. 4th 84, 84 Cal. Rptr. 2d 658 24Wright v. Southland Corporation,(11th Cir. 1999) 187 F.3d 1287 25

CODES AND STATUTES 9 United States CodeSection 1 4429 United States CodeSection 215(a)(3) 3442 United States CodeSection 1983 32, 37California Business & Professions CodeSection 16600 40Section 17200 5California Labor CodeSection 221 40Section 132a 34, 35, 40Section 203 4, 31California Code of Civil ProcedureSection 377.34 43California Government CodeSection 12945.2 33Section 12941.1 15, 23California Penal Code Section 632 38

Notice must be given to all persons against whom relief is sought and to the chief of the public officials for the city and county in which the unlawful acts have been threatened or committed and who are charged with the duty to protect the complainant’s property.

Previously, liability could be established if a preponderance of evidence showed the defendant planned, aided, or participated in the unlawful acts.