Investigate Upon Actual or Constructive Notice of the Alleged Wrongdoing

The employer's knowledge of a claim of wrongdoing can be obtained through any means, including among others, direct complaints, anonymous tips, rumors, hearsay, or third-party statements. Further, an employer may be charged with constructive notice of the wrongdoing, even if no one complains of the conduct, where the conduct is so pervasive that the employer should have known of it.

California law protects employees from retaliation for making complaints about their wages and working conditions. But what if the employee makes a mistaken claim for unpaid wages? As a recent court of appeals decision makes clear, an employee’s wage complaint need not be valid to be protected by California law.

More state legislation advancing the rights of lesbian, gay, bisexual and transgender (LGBT) individuals was passed in 2009 than in 2007 and 2008 combined, according to a comprehensive state-by-state report released Jan. 26, 2010, by the Human Rights Campaign Foundation, the nation’s largest LGBT civil rights organization.

"While the road is never easy, we look ahead to 2010 with renewed dedication in the fight for equality," said Human Rights Campaign President Joe Solmonese.

Many of the newly enacted laws impact the workplace rights of LGBT individuals.

Despite a November voter referendum in Maine that overturned the state's same-sex marriage law and a recent rejection of same-sex marriage by the New York State Senate, 2009 saw progress for the legal recognition of same-sex marriage and domestic partnerships. The following is a summary of recent developments in this fast-evolving area of the law.

The U.S. departments of Health and Human Services (HHS), Labor, and the Treasury have jointly released an interim final rule aimed at helping prevent employers, insurers, health care providers and others from using genetic information adversely in determining health care coverage. The administration maintains the new rules will encourage more individuals to participate in genetic testing, which can help better identify and prevent certain illnesses.

Having a pregnancy leave policy that permits pregnant employees to take time off for childbirth is only the first step in complying with the law. As one employer recently learned, it’s just as important to have post-leave follow-up policies. We’ll explain what this employer did wrong and the post-pregnancy leave policies the employer should have had.

Because being prepared is the best way to stay compliant, the following summaries of significant pending legislation will help you look ahead and plan for likely changes to the legal landscape.

Showing that California courts generally will protect employees’ right to compete with their former employers for business, a California Court of Appeal has vacated a preliminary injunction prohibiting employees from “directly or indirectly soliciting” their former employer’s customers. The Court found the injunction was broader than necessary to protect the employer’s trade secrets and unlawfully impinged on the employees’ right to compete.  The Retirement Group v. Galante, No. D054207 (Cal. Ct. App. Aug. 20, 2009).

As more states enact laws allowing patients to ingest marijuana as a means of coping with various diseases and symptoms, the question quickly arises for human resources professionals about how this affects the employment relationship. If employees are legally allowed to smoke at home to manage night seizures, are they still going to be affected by marijuana the next day at work? Do you have to accommodate this? 

Here is some good news for California employers. The California Labor Commissioner has just published an August 19, 2009 Opinion Letter which provides employers with much needed relief during these difficult economic times.

Homeland Security Secretary Janet Napolitano announced on July 8, 2009, that the Obama administration intends to rescind regulations and procedures for employers that receive employee "no-match" letters from the Social Security Administration. At the same time, Napolitano reasserted the administration’s support of a regulation that would require federal contractors and subcontractors to use E-Verify—the electronic employment verification system operated by U.S. Citizenship and Immigration Services.

NEW ORLEANS - "How many of you have revised your handbooks in the last six months?" Allan Weitzman, an attorney with Proskauer Rose in Boca Raton, Fla., asked the audience at a June 29, 2009 session "The Employee Handbook - Every Word Counts" held here. About half of the SHRM Annual Conference attendees raised their hands, and Weitzman lauded them and advised those who had not raised their hands that now was a good time to make changes to reflect recent legislative and regulatory changes - particularly the 2008 amendments to the Family and Medical Leave Act (FMLA) concerning service-member family leave and the FMLA regulations that went into effect Jan. 16, 2009.

Qualified people with disabilities who are seeking work have a 65 percent unemployment rate; even among those with a four-year degree, more than 45 percent are unemployed. Glenn McIntyre, executive director of McIntyre & Associates in Camarillo, Calif., presented these stark figures to attendees at his Monday concurrent session, "ADA: The Next Generation," at SHRM's 61st Annual Conference & Exposition.

Smallest businesses support private insurance over federal plan, oppose mandates

U.S. entrepreneurs are ready for major changes to the American health care system, but are asking the federal government to implement various proposals to help them cope with the costs. When asked for the most important component of health reform, 60 percent of micro-business owners cited cost containment, even over access and choice. Nearly 2,000 micro-businesses, including members of the National Association for the Self-Employed (NASE), took part in the national survey of their opinions on current health care reform proposals

Ever since the California workers’ compensation system was overhauled in 2003 and 2004, most employers in the state have seen a steady and even steep decline in their workers’ compensation insurance premiums. But employers should take note that starting in 2009, premiums may be heading north.

On Sept. 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), updating the Americans with Disabilities Act to provide broader disability protections. While the changes mean that many more American workers will qualify as disabled under the ADA, California’s Fair Employment and Housing Act (FEHA) remains as strict as the newly amended ADA—and even stricter in some respects. Nevertheless, be on the lookout for an increase in disability bias lawsuits, as employee awareness of disability rights issues will be sharpened with the publicity surrounding the new law.

On July 22, Gov. Arnold Schwarzenegger signed into law Senate Bill 940, which will change payroll practices applicable to “temporary service” workers. Under the new law, which will go into effect in January of 2009, temporary service agencies must pay temps every week instead of every other week. The law also requires agencies to pay temps daily when they work for a client on a “day-to-day basis.” The new legislation creates another exception for workers on an assignment “for over 90 consecutive calendar days.” The weekly payment requirement does not apply to these employees unless their employers pay them weekly.

Controversial proposed legislation that would have required all California employers to provide paid sick days to all employees will not be adopted this legislative session. Citing the cost of implementing and maintaining the program, the California Senate Appropriations Committee decided to hold up consideration of Assembly Bill 2716. The California Labor Federation AFL-CIO has promised to work to reintroduce the bill in the 2009 legislative session.

In what is a major victory for California employers, the California Court of Appeal held July 23, 2008, in Brinker Restaurant Corp. v. Superior Court, that employers are not obligated to ensure that employees actually take meal and rest breaks, and that companies therefore cannot be held liable for alleged meal and rest break violations unless employees are “forced to forgo” these breaks.

In Edwards v. Arthur Andersen LLP, the California Supreme Court reaffirmed California’s strong public policy against covenants not to compete. The primary issue in the case was whether the 9th U.S. Circuit Court of Appeals’ “narrow restraint” exception was a proper interpretation of California law. Under the narrow restraint exception, employers could enforce noncompetition agreements that did not “entirely preclude” an employee from practicing his or her trade. The Supreme Court summarily rejected this exception. The lesson for employers is that unless a covenant not to compete falls squarely within one of the statutory exceptions, it is not likely to be upheld by a California court.