Editor in Chief

Bernadette M. O'Brien is an attorney at law in California.

She is the author of the popular Lexis Nexis publication Labor and Employment in California; A guide to Employment Laws, Regulations and Practices Second Edition which has been in publication since 1992. The book covers an array of employment related issues including discrimination, sexual harassment, wage and hour, family Medical Leave Act, and Privacy in the workplace.

She is of counsel with the Law Offices of Floyd, Skeren & Kelly, LLP in the firm's Sacramento office.

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Rene Thomas Folse, JD, Ph.D. is an attorney at law and licensed psychologist in California.

He has practiced workers' compensation law for 35 years. His focus of practice involves claims of mental health injury where forensic psychology is involved in the evaluation of the claim. He has been an instructor and lecturer for many organizations and educational institutions and teches continuing education courses for attorneys, physicians and psychologists.

The EmploymentLawAcademy is pleased to offer our users FREE access to California Unemployment Insurance and Disability Compensation Programs - Online Version by David W. O'Brien, California Unemployment Insurance Administrative Law Judge (Retired). The paper version of this text contains nearly 1000 pages of information and law covering the California unemployment and disability Insurance claim. The online version may be searched by keywords, or you may navigate from chapter to chapter.

Recent Employment Law News for May 03, 2015

U.S. Supreme Court Issues Decision In EEOC Conciliation Case
Wed, 29 Apr 2015 20:47:42 - Pacific Time

In a unanimous decision, the U.S. Supreme Court held that courts may only conduct a "relatively bare-bones review" of the EEOC's conciliation efforts. EEOC Chair Jenny R. Yang commented that, "Today's decision puts the focus of the EEOC and the courts squarely on the merits of the discrimination claim," said EEOC Chair Jenny R. Yang. In reaching its decision, the Court noted recognized that the scope of review of EEOC conciliation efforts is narrow and a sworn affidavit is usually sufficient to meet the statutory requirements.  The Court’s decision stems from the EEOC's lawsuit against Mach Mining, LLC, headquartered in Marion, Ill.  The EEOC sued Mach Mining in alleging that the company violated Title VII by failing to hire any female miners since beginning operations in 2006, despite having received applications from many highly qualified women.Mach Mining defended against the allegations by criticizing the EEOC for inadequately conciliating the matter before suing. The Supreme Court's decision adopts a standard that requires only that the EEOC "afford the employer a chance to discuss and rectify a specified discriminatory practice."  Read more here.


9th Circuit Upholds $6.6 Million Dollar Punitive Damage Award Against UPS
Tue, 28 Apr 2015 04:07:59 - Pacific Time

In an unpublished decision, the 9th U.S. Circuit Court of Appeals has upheld a jury’s verdict against United Parcel Services (UPS) for $6.6 million in punitive damages. Specifically, the jury awarded former UPS employee, Michael Marlo, $15.9 million (later reduced to $6.6 million) in punitive damages arising from a lawsuit in which Mr. Marlo sued UPS alleging retaliation and wrongful termination. On appeal from the jury verdict, UPS argued that the evidence was insufficient to support the jury’s determination that Vice President and District Manager Tim Robinson was a “managing agent” under California law. However, the 9th Circuit disagreed, holding that pursuant to California law, Robinson qualified as a “managing agent” if he “exercise[d] substantial independent authority and judgment in [his] corporate decisionmaking so that [his] decisions ultimately determine[d] corporate policy.”


Employer To Pay $65,000 For Alleged Retaliation
Tue, 28 Apr 2015 03:37:16 - Pacific Time

Newport News Industrial Corporation has agreed to pay $65,000 and provide substantial injunctive relief to settle an employment discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).  According to the EEOC, the company terminated an employee because she complained she was being discriminated against based on her gender. The EEOC charged in its lawsuit that Newport News Industrial Corporation hired Julia Horton on Sept. 27, 2010 as a planner to assist with a nuclear plant outage at the Brunswick Nuclear Power Plant in Southport, N.C.  Around Nov. 15, Horton allegedly initially complained about the site superintendent treating her in an aggressive, intimidating, sarcastic and condescending manner because of her gender.  The company's vice president / general manager completed an investigation into Horton's complaints on Nov. 30.  On Dec. 2, only 17 days after her initial complaint, and two days after the company's VP completed his investigation, Horton was fired.  The EEOC charged that Horton was fired in retaliation for her complaints about gender-based discrimination. Read more here.


Legislation Introduced In California To Exempt “Highly Compensated” Employees From Overtime
Thu, 23 Apr 2015 15:07:58 - Pacific Time

Pursuant to federal law, specifically the Fair Labor Standards Act (FLSA) most employees working in the United States must be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, there are exemptions from overtime for certain employees, including those working as bona fide executive, administrative, professional, and for certain computer employees. However, to qualify for exempt status, employees must meet certain tests regarding their job duties and be paid on a salary basis of not less than $455 per week. The FLSA also provides that “highly-compensated" workers are exempt from overtime. The FLSA defines highly-compensated workers as those who are paid a total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis. In addition, the employee’s primary duties must involve performing office or nonmanual work, and the employee must customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt, administrative or professional employee. In California, legislation has been introduced, AB 1470, to create a similar exemption for highly-compensated employees in California.


Kevin Kish Sworn In As New Director of FEHA
Wed, 22 Apr 2015 15:53:39 - Pacific Time

Kevin Kish, a noted civil rights attorney, has been sworn in as director of California’s Department of Fair Employment and Housing (DFEH), the largest state civil rights agency in the nation. Kish was previously with Bet Tzedek Legal Services in Los Angeles, one of the nation’s premier public interest law firms. As director of the firm’s Employment Rights Project, Kish led the firm’s employment litigation, policy, and outreach initiatives. His cases focused on combatting violations of minimum labor standards in low-wage industries and human trafficking for forced labor. He led trial and appellate teams in employment and trafficking suits, including prevailing in the first civil case to reach a jury verdict under the California Trafficking Victims Protection Act. A graduate of Yale Law School, Kish developed and teaches an employment-law clinic at Loyola Law School and frequently speaks on issues related to poverty, employment, human trafficking and human rights. Read more here.


Employer To Pay $14.5 Million For Alleged Race/National Origin Discrimination
Wed, 22 Apr 2015 15:28:20 - Pacific Time

Patterson-UTI Drilling Company LLC, a Snyder, Texas-based multistate oil drilling company, has agreed to pay $14.5 million and furnish other relief to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) based on alleged race/national origin discrimination. The EEOC charged that the company committed race/national origin discrimination, harassment and retaliation at its facilities throughout the country. Specifically, the EEOC’s lawsuit alleged that the company engaged in discrimination based on race and national origin on its drilling rigs, including assigning minorities to the lowest level jobs, failing to train and promote minorities, and disciplining and demoting minority employees disproportionately. The EEOC also alleged that the company tolerated a hostile work environment on the rigs, in which employees endured racial and ethnic slurs, jokes, and comments, in addition to verbal and physical harassment of minority employees. In addition, according to the EEOC, the company retaliated against employees who complained about discriminatory practices. Read more here.


FS&K's 5th Annual Employment Law Conference
Mon, 20 Apr 2015 18:31:00 - Pacific Time

On Friday, June 19, 2015, Floyd, Skeren & Kelly, LLP will hold its 5th Annual Employment Law Conference. The conference will take place at the Disneyland Hotel, located in Anaheim, CA. We invite you to join us for this full day conference that will offer education on both Employment Law and Workers' Compensation. Topics will include:

The Latest Information on California's New Paid Sick Law-Ensure Compliance Before July 1, 2015;

Mastering California Leave Laws Related to Disabled Employees;

Preventing Work Comp Fraud in the Workplace;

Understanding and Complying With the Amended California Family Rights Act Regulations-in Effect as of July 1, 2015;

Understanding, Preventing and Responding to Workplace Sexual Harassment Claims

Effectively Managing and Defending Work Comp Claims-Advanced Techniques From the Experts;

Performance, Discipline and Termination-Employer Best Practices

Work Comp Resignations and C&R's-What are the Legal Implications? and much more.

MCLE, CEU and HRCI Credits are approved for this conference.

For more information and to register, please visit FSK HR Training.


9th Circuit Rules on “No-Rehire” Clause In Settlement Agreement
Mon, 20 Apr 2015 17:57:22 - Pacific Time

Employers entering into settlement agreements with former employees often include a “no-rehire” clause in the agreement wherein the employee agrees not to seek reemployment with the former employer. In a recent case, Golden v. California Emergency Physicians Medical Group, et al., the Ninth Circuit questioned whether a “no-rehire” clause is an unlawful restraint of trade. California is protective of employees’ rights to compete. Specifically, Business & Professions Code section 1600, states that: “Except as provided is this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” In Golden, a physician refused to sign a settlement agreement containing a no-rehire clause on the basis that his former employer was a major medical group and planning to acquire other practices, which would inhibit his ability to obtain employment. The 9th Circuit concluded that the settlement agreement restrained the physician’s ability to engage in his profession and remanded the case to determine if the restraint was “substantial.” Read more here.