Labor and Employment Law Newsletter, June/July 2008

This is the second of MAAS' four quarterly newsletters for 2008. This edition provides two important tips to employers.

Consistent Application of Employment Policies. First (Tip 4), every employer should know the importance of adopting and implementing policies and procedures. Many employers have employee handbooks that contain the employers’ policies and procedures for everyday interaction with their employees. The tip that we offer goes beyond simply adopting employer policies. It is equally important that employers consistently apply their policies, and routinely review and update those policies to ensure full compliance with both federal and state laws.

Employment Practices Liability Insurance (EPLI). This tip (Tip 5) offers advice to the employer about proper insurance coverage for employment-related legal actions. All employers routinely obtain a comprehensive general liability policy and workers compensation coverage. These policies, however, do not apply to the typical employment-related action for claims such as discrimination, harassment and/or retaliation. MAAS has asked commercial insurance broker Owen-Dunn Insurance Services to provide information on employment related insurance policies.

As always, MAAS is committed to provide the most current and helpful information to its clients to ensure that they remain fully compliant with all state and federal employment laws. Should you have any questions about any of the information contained within this newsletter, please do not hesitate to contact any of the MAAS’ Labor and Employment attorneys.

Recent Updates

Employers' Supervisors Awarded Victory by the California Supreme Court. In March 2008, the California Supreme Court decided a hot topic issue that will protect supervisors throughout the state of California. In a closely divided decision, the California Supreme Court held that individual supervisors who are not an employee’s “employer” could not be held personally liable for retaliation under the California Fair Employment and Housing Act. (Jones v. .Lodge at Torrey Pines (2008) 42 Cal.4th 1158.) This decision followed the Supreme Court’s 1998 decision in Reno v. Baird (1998) 18 Cal.4th 640 holding that an individual supervisor cannot be held personally liable for discrimination under the FEHA. The Supreme Court decided that retaliation is functionally equivalent to discrimination and that the individual supervisor’s management authority would be chilled and detrimentally affected if an employee later asserted such a decision was motivated by retaliation. The Supreme Court did, however, leave open the possibility that a supervisor may be subject to personal liability for retaliation if the conduct complained about is part of a pattern of harassment. This is commonly referred to as retaliatory harassment. Because such conduct was not at issue in the Torrey Pines case, the Supreme Court did not squarely address this issue. It is important to remember that individual supervisors and co-employees are personally responsible for harassment that violates the FEHA, the California Family Rights Act and comparable federal laws.

U.S. Supreme Court Rejects a Per Se Rule Barring Introduction of “Me Too” Evidence. All too often, an individual claiming discrimination does not have direct evidence of discrimination. In discrimination cases, plaintiffs want to introduce evidence of other individuals that also claim to have suffered discrimination in order to prove that the employer’s workplace was permeated with discrimination. The United States Supreme Court case of Sprint/United Management Company v. Mendelsohn presented a recurring question of proof in employment discrimination cases: whether a court must admit "me, too" evidence, which is testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. The Supreme Court chose not to render a decision that so called “me, too” evidence is always admissible or never admissible. Instead, the Supreme Court held that each trial court is in the best position to perform an analysis of whether such evidence is admissible in the context of the particular case.

What does this mean for you? Employers must make sure to evaluate every adverse employment action taken against an employee to ensure there is not even the appearance of discrimination, as a decision pertaining to employee number 1 may have negative adverse consequences for a lawsuit brought by employee number 2.

Alert

Invalid Subpoenas Reported. The Administrative Office of the U.S. Courts has posted an alert that reports have been received of totally bogus e-mail grand jury subpoenas, purportedly sent by a U.S. District Court. Each message included the correct name, e-mail address, company name, and phone number, and commands the recipient to appear before a grand jury in a civil case. The federal judiciary’s email address is uscourts.gov. The e-mails in question appear to be sent from a similar address that is not owned and operated by the federal courts, i.e., uscourts.com. The link embedded in the message purports to offer a copy of the entire subpoena, but when the recipient tries to view the document, they unwittingly download and install software that secretly records keystrokes and sends the data to a remote computer over the Internet. This enables criminals to capture passwords and other personal or financial information and starts software that allows the computer to be controlled remotely so the attackers can obtain digital credentials, passwords, and electronic certificates. Recipients are warned not to open any links or download any information relating to this e-mail notice. Law enforcement authorities have been notified. For the original alert: http://www.uscourts.gov/newsroom/2008/alert.cfm.

Five Tips for Employers. If you have missed any of the previous tips, download them now by clicking the links provided below. Each quick guide outlines what employers need to know most about recent changes in labor and employment legislation.

New Legislation. Know and comply with the new employment laws passed by the the California Legislature and signed by Governor Schwarzenegger.

Judicial Decisions. Make sure you are in full compliance with the judicial authority that was decided last year.

Wage & Hour. Know which wage and hour issues are hot-button topics.

Policy Application. Avoid lawsuits by being consistent in your application of employment policies.

Liability Insurance. Understand the importance of Employment Practices Liability Insurance.

View the Labor and Employment Newsletter, January 2008 Issue

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