California Labor
and Employment 		ALERT
VOLUME 28 - NUMBER 1 CASTLE PUBLICATIONS, LTD. July, 2009
TABLE OF CONTENTS
WAGE AND HOUR AND DEVELOPMENTS  
SUPREME COURT HOLDS THAT PAGA SUITS ARE EXEMPT FROM CLASS ACTION RULES 1
SUPREME COURT IMPOSES CLASS ACTION STANDARDS ON UNFAIR COMPETITION CLAIMS AND BARS UNION ACTIONS UNDER PAGA 2
EMPLOYEE TERMINATED DURING WAITING PERIOD WAS LAWFULLY DENIED VACATION PAY 4
COURT GRANTED EMPLOYER'S MOTION TO DENY CLASS CERTIFICATION IN OUTSIDE SALES EMPLOYEE CASE 7
NINTH CIRCUIT DENIES CLASS CERTIFICATION DESPITE EMPLOYER'S UNIFORM EXEMPTION POLICIES 8
TRIAL COURT IMPROPERLY APPROVED CLASS ACTION SETTLEMENT WITHOUT SUFFICIENT INFORMATION 9
EMPLOYEE WAS NOT ENTITLED TO ADDITIONAL COMMISSIONS AFTER HIS TERMINATION 10
EMPLOYER NEED NOT PAY BUS DRIVERS FOR TRAVEL TIME BACK TO STARTING LOCATION 11
PUBLIC ENTITY FOUND EXEMPT FROM CALIFORNIA'S MEAL PERIOD AND OVERTIME STATUTES 12
COURT COMPARES OPT-IN FEATURES OF FLSA WITH OPT-OUT FEATURES OF CALIFORNIA CLASS ACTIONS 14
COURT OVERTURNS $86 MILLION TIP DECISION 16
COURT REQUIRES EMPLOYEE TO ARBITRATE UNPAID VACATION CLAIM 17
DLSE ISSUES NEW OPINION ADDRESSING ON-DUTY MEAL PERIODS 18
CONDITIONAL CERTIFICATION OF CLASS TRIGGERS RULE PROHIBITING OUTSIDE ATTORNEY CONTACT WITH REPRESENTED CLASS MEMBERS 18
NINTH CIRCUIT OVERTURNS DISMISSAL OF FORCED PATRONAGE CLAIMS 19
CALIFORNIA SUPREME COURT TO RESOLVE SPLIT OF AUTHORITY IN TIP POOLING CASES 19
EMPLOYMENT DISCRIMINATION AND WRONGFUL DISCHARGE DEVELOPMENTS  
U.S. SUPREME COURT DETERMINES THAT ADEA PLAINTIFFS MUST PROVE THAT AGE WAS THE "BUT-FOR" CAUSE FOR ADVERSE ACTION 20
U.S. SUPREME COURT HOLDS THAT CITY VIOLATED TITLE VII BY DISCARDING TEST RESULTS OF TOP CANDIDATES DUE TO STATISTICAL CONCERNS 21
U.S. SUPREME COURT UPHOLDS ARBITRATION PROVISION IN COLLECTIVE BARGAINING AGREEMENT 22
STATE SUPREME COURT EXTENDS WORKPLACE LIABILITY LIMITATIONS TO SEXUAL HARASSMENT SUITS BROUGHT UNDER THE CIVIL CODE 23
EEOC PLANS TO REVISE ADA REGULATIONS 25
EMPLOYEE PERMITTED TO PURSUE PREGNANCY DISCRIMINATION CLAIM DESPITE ASSERTION SHE WAS FIRED FOR FALSIFYING A TIMECARD 26
FORMER EMPLOYEES RECOVER $1.6 MILLION IN TRADE SECRET CASE BROUGHT IN BAD FAITH 27
EMPLOYEES' WRONGFUL TERMINATION AND RETALIATION CLAIMS WERE NOT BARRED BY ANTI-SLAPP STATUTE 28
HOSPITALS PROVIDING MEDICAL SERVICES TO FEDERAL EMPLOYEES THROUGH HMOs MAY BE SUBJECT TO AFFIRMATIVE ACTION REQUIREMENTS 29
MISCELLANEOUS DEVELOPMENTS 
NEW GUIDANCE ON I-9 FORM ISSUED 30
E-VERIFY REQUIREMENT FOR FEDERAL CONTRACTORS POSTPONED YET AGAIN 31
GOVERNOR SCHWARZENEGGER SIGNS ELECTRONIC DISCOVERY LEGISLATION INTO LAW 31
COURT OF APPEAL REJECTS INVASION OF PRIVACY LAWSUIT BASED ON PUBLIC MYSPACE.COM CONTENT 32
NEW PUBLICATION 
NEW EDITION OF EMPLOYMENT DISCRIMINATION AND EEO PRACTICE MANUAL JUST COMPLETED 33
2009 SEMINAR SCHEDULE 
WAGE-HOUR, EMPLOYMENT DISCRIMINATION, WRONGFUL DISCHARGE, FAMILY RIGHTS LAWS, AND EMPLOYEE HANDBOOK SEMINARS 33
ABOUT THE ALERT 34
California Labor
and Employment 		ALERT
VOLUME 27 - NUMBER 6 CASTLE PUBLICATIONS, LTD. May, 2009
TABLE OF CONTENTS
WAGE AND HOUR AND DEVELOPMENTS 1
CALIFORNIA SUPREME COURT LAYS DOWN PROP 64 STANDARDS FOR CLASS ACTION CLAIMS UNDER STATE UNFAIR COMPETITION LAW 1
NINTH CIRCUIT DENIES FORMER EMPLOYEE'S BID FOR INJUNCTIVE RELIEF IN CLASS ACTION 2
ON-CALL TIME WAS NOT COMPENSABLE AND MOTOR CARRIER EXEMPTION WAS UNCLEAR 3
SERVICE CONTRACT ACT DID NOT PREEMPT EMPLOYEE'S CALIFORNIA LABOR CODE CLAIMS5
EMPLOYEE WHO FILED WAGE-HOUR CLASS ACTION WAS NOT REQUIRED TO ARBITRATE CASE 6
LABOR COMMISSION ALLOWS ALTERNATIVE WORKWEEK SCHEDULE FOR SUMMER MONTHS 7
RESTAURANT EMPLOYEES WITHIN "CHAIN OF SERVICE" MAY SHARE TIPS 8
COURT BARS MANAGERS AND SUPERVISORS FROM PARTICIPATING IN TIP-POOLING 9
COURT OF APPEAL EXEMPTS CHARTER CITY FROM PREVAILING WAGE REQUIREMENTS 9
ANOTHER MANDATORY CLASS ARBITRATION WAIVER HELD UNENFORCEABLE 10
EMPLOYMENT DISCRIMINATION AND RELATED DEVELOPMENTS 11
U.S. SUPREME COURT ALLOWS USE OF SENIORITY RULES IN EFFECT PRIOR TO PDA OF 1978 WHEN CALCULATING PENSION BENEFITS 11
TRIAL COURT DOES NOT ABUSE DISCRETION BY DECLINING TO GIVE "PRETEXT" INSTRUCTION TO JURY 11
CALIFORNIA DFEH ISSUES ANNUAL REPORT AND STATISTICS 12
EEOC ISSUES GUIDELINES ADDRESSING SWINE FLU 13
EEOC ISSUES SUPPLEMENTAL GUIDANCE ADDRESSING CAREGIVERS AND DISCRIMINATION CLAIMS 14
IT IS NOT NECESSARY THAT ALL POTENTIAL CLASS MEMBERS EXHAUST ADMINISTRATIVE REMEDIES 16
MISCELLANEOUS DEVELOPMENTS 16
SUPREME COURT RULES THAT EMPLOYEES MAY NOT RECOVER ATTORNEYS' FEES UNDER WORKERS' COMPENSATION LAW WHERE INSURER DISPUTES SPECIFIC MEDICAL TREATMENT 16
FULL-TIME SCHOOL EMPLOYEE CANNOT BE "BUMPED" BY MORE SENIOR PART-TIME EMPLOYEES 17
EMPLOYEES LACK STANDING TO PURSUE BENEFIT CLAIMS AGAINST PENSION BENEFIT GUARANTY CORPORATION 17
NEW PUBLICATIONS 18
2009 EDITION OF SEXUAL HARASSMENT TRAINING MANUAL IS AVAILABLE 18
NEW COBRA PUBLICATION ADDRESSES 2009 RULES AND NEW LAW, ARRA 19
2009 EDITION OF LEAVES OF ABSENCE AND TIME OFF FROM WORK MANUAL COVERS NEW STATUTES AND REGULATIONS 19
NEW FAMILY AND MEDICAL LEAVE MANUAL AVAILABLE 20
2009 SEMINAR SCHEDULE 21
WAGE-HOUR, EMPLOYMENT DISCRIMINATION, WRONGFUL DISCHARGE, FAMILY RIGHTS LAWS, AND EMPLOYEE HANDBOOK SEMINARS 21
ALERT RENEWALS 22
ABOUT THE ALERT 22
California Labor
and Employment 		ALERT
VOLUME 27 - NUMBER 5 CASTLE PUBLICATIONS, LTD. March, 2009
TABLE OF CONTENTS
WAGE AND HOUR AND DEVELOPMENTS 1
COURT FINDS MEAL PERIOD PREMIUMS CAN BE EXCLUDED FROM THE REGULAR RATE OF PAY 1
BARTENDERS CAN PARTICIPATE IN TIP POOLING ARRANGEMENTS 2
NEW RULES REGARDING ALTERNATIVE WORKWEEK SCHEDULES ENACTED 3
COBRA PREMIUM SUBSIDIES ENACTED FOR LAID OFF WORKERS 4
DELIVERY DRIVERS WERE CORRECTLY CLASSIFIED AS INDEPENDENT CONTRACTORS 4
COURT ALLOWS INDIVIDUAL RELEASES OF WAGE CLAIMS 6
COURT FINDS ARBITRATION AGREEMENT WITH CLASS ARBITRATION WAIVER UNCONSCIONABLE 7
ANOTHER COURT STRIKES DOWN CLASS ACTION WAIVERS IN ARBITRATION AGREEMENT 7
EMPLOYMENT DISCRIMINATION DEVELOPMENTS 9
PRESIDENT OBAMA'S FIRST LEGISLATION AMENDS SEVERAL FEDERAL ANTI-DISCRIMINATION LAWS 9
EMPLOYEE LOSES DISABILITY DISCRIMINATION SUIT UNDER FEHA WHILE SEEKING TO AVOID THE MOST STRESSFUL ASPECTS OF HER JOB 10
FEHC ISSUES CHART COMPARING FMLA AND CFRA REGULATIONS 12
EEOC PUBLISHES PROPOSED REGULATIONS ADDRESSING GINA 12
ADEA PROVIDES EXCLUSIVE REMEDY FOR AGE-BASED EMPLOYMENT DISPUTES 14
INSULIN-DEPENDENT DIABETES MAY QUALIFY AS A DISABILITY UNDER THE ADA 14
WRONGFUL DISCHARGE AND MISCELLANEOUS DEVELOPMENTS 15
SUPREME COURT UPHOLDS TERMINATION OF ATTORNEY FOR DECEPTIVE COURT CONDUCT AND REFUSING TO ANSWER HIS EMPLOYER'S QUESTIONS 15
FEDERAL STIMULUS PACKAGE CREATES NEW WHISTLEBLOWER PROTECTIONS 16
TERMINATION WAS NOT INFLUENCED BY IMPROPER MOTIVE OF LOW-LEVEL SUPERVISOR 17
PRESIDENT OBAMA SIGNS THREE EXECUTIVE ORDERS SUPPORTING UNIONS 19
EMPLOYER AVOIDED WARN LIABILITY BY SHOWING UNFORESEEABLE BUSINESS CIRCUMSTANCES 20
U.S. SUPREME COURT UPHOLDS STATE BAN ON PAYROLL DEDUCTIONS FOR POLITICAL ACTIVITIES 21
NEW PUBLICATIONS 21
2009 EDITION OF SEXUAL HARASSMENT TRAINING MANUAL NOW AVAILABLE 21
NEW COBRA PUBLICATION ADDRESSES ARRA, FEDERAL AND CALIFORNIA LAW 22
NEW EDITION OF LEAVES OF ABSENCE AND TIME OFF FROM WORK MANUAL JUST PUBLISHED 23
NEW FAMILY AND MEDICAL LEAVE MANUAL AVAILABLE 24
2009 SEMINAR SCHEDULE 24
WAGE-HOUR, EMPLOYMENT DISCRIMINATION, WRONGFUL DISCHARGE, FAMILY RIGHTS LAWS, AND EMPLOYEE HANDBOOK SEMINARS 24
ABOUT THE ALERT 25
California Labor
and Employment 		ALERT
VOLUME 27 - NUMBER 4 CASTLE PUBLICATIONS, LTD. January, 2009
TABLE OF CONTENTS
WAGE AND HOUR DEVELOPMENTS 1
CALIFORNIA SUPREME COURT AGREES TO REVIEW A SECOND MEAL PERIOD CASE 1
PUNITIVE DAMAGES ARE INAPPROPRIATE IN WAGE AND HOUR CASES 1
EMPLOYER'S FORMULA FOR COMPUTING OVERTIME ON BONUSES WAS LAWFUL 3
COURT ORDERS CLASS CERTIFICATION IN WAGE CLAIM OF LIMOUSINE DRIVERS 6
DLSE CONFIRMS THAT EMPLOYERS MAY RECOVER WAGE OVERPAYMENTS UNDER CERTAIN CIRCUMSTANCES 7
EMPLOYER WAS NOT REQUIRED TO PAY FOR TIME SPENT BY EMPLOYEE OBTAINING FEDERALLY MANDATED CREDENTIAL 8
TRIAL COURTS MUST INDEPENDENTLY PROBE FAIRNESS OF CLASS ACTION SETTLEMENTS 10
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ORDERING RELEASE OF CLASS MEMBER CONTACT INFORMATION 11
ONE-YEAR STATUTE APPLIES TO WAITING TIME PENALTIES CLAIMS 13
EMPLOYEE MAY NOT APPEAL CLASS CERTIFICATION RULING AFTER SETTLING INDIVIDUAL CLAIMS 14
MOST ASPECTS OF CLASS ACTION LAWSUIT UNDER PAGA BARRED BY PRIOR SETTLEMENT 14
COURT DETERMINES THAT TIP POOLING IN CASINOS IS LAWFUL AND NO PRIVATE RIGHT TO SUE EXISTS UNDER CALIFORNIA'S FORCED PATRONAGE STATUTE 15
EMPLOYMENT DISCRIMINATION DEVELOPMENTS 17
U.S. SUPREME COURT HOLDS THAT EMPLOYEE ANSWERING QUESTIONS DURING INTERNAL INVESTIGATION IS PROTECTED BY TITLE VII'S ANTI-RETALIATION RULES 17
INDIVIDUALS WITH NO MARIJUANA-RELATED CONVICTIONS TO REVEAL LACK STANDING TO SUE STARBUCKS FOR CHALLENGED QUESTION IN JOB APPLICATION 18
RETAIL PHARMACY'S JOB APPLICATION ASKED PERMISSIBLE QUESTIONS 21
PUBLIC EMPLOYERS MAY BE LIABLE UNDER THE FEHA 22
ONE-YEAR STATUTE OF LIMITATIONS IN ARBITRATION AGREEMENT DID NOT DENY EMPLOYEE OF RIGHTS UNDER THE FEHA 23
STATE AGENCY RETALIATED AGAINST "POTENTIAL WITNESS" TO A SEXUAL HARASSMENT INVESTIGATION 24
MISCELLANEOUS DEVELOPMENTS 25
2009 FMLA REGULATIONS TOOK EFFECT JANUARY 16 AND CREATED A NEW PLAYING FIELD 25
DEPARTMENT OF HOMELAND SECURITY ISSUES NEW I-9 FORM 27
U.S. SUPREME COURT RECOGNIZES ABILITY OF UNIONS TO CHARGE SERVICE FEES TO NON-MEMBERS 28
NEW YORK WARN ACT GOES INTO EFFECT ON FEBRUARY 1, 2009 29
E-VERIFY OBLIGATIONS ARE POSTPONED 29
NEW PUBLICATION 30
NEW FAMILY AND MEDICAL LEAVE MANUAL AVAILABLE 30
2009 SEMINAR SCHEDULE 30
WAGE-HOUR, EMPLOYMENT DISCRIMINATION, WRONGFUL DISCHARGE, FAMILY RIGHTS LAWS, AND EMPLOYEE HANDBOOK SEMINARS 30
ABOUT THE ALERT 31