Can't Currently Count on Kin Care Case

How's that for alliteration? OK, it's Friday. So sue me. Maybe I can represent me. Anyway, the Supreme Court took up McCarther v. Pacific Telesis Group here. The issues on review:

Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Does Labor Code section 233, which mandates that employees be allowed to use a portion of "accrued and available sick leave" to care for sick family members, apply to employer plans in which employees do not periodically accrue a certain number of paid sick days but are paid for qualifying absences due to illness? (2) Does Labor Code section 234, which prohibits employers from disciplining employees for using sick leave to care for sick family members, prohibit an employer from disciplining an employee who takes such "kin care" leave if the employer would have the right to discipline the employee for taking time off for the employee's own illness or injury?

We posted on this opinion here. We wrote an article here. Much toner and pixels spilled for naught. Now we must wait for the Supreme Court to decide this important wage and hour / leave issue here. If you want us to do an amicus brief while we're waiting, email me.

Court of Appeal: Inadequate Notice of Disability But Sufficient Notice for CFRA Leave

The Court of Appeal decided that Continental Airlines management had insufficient notice that its employee, Henry Avila, had a covered "disability" under the Fair Employment and Housing Act. The employer knew the employee had missed work because he was "sick," was hospitalized for three days, and that he presented a couple of slips from Kaiser putting him off work for short durations. The court, though, found it was undisputed that the employer did not know that the reasons for the absences amounted to a "disability" under FEHA. The plaintiff's failure to accommodate claim failed for the same reason.

However, the court held that Continental was on sufficient notice that the employee needed CFRA leave. Avila's merely calling in sick was not sufficient notice:
That plaintiff called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition. (See Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9 [“an employee who calls in sick to work for several days while taking antibiotics for an apparent flu has not provided her employer with ‘notice sufficient to make the employer aware that the employee needs CFRA qualifying leave’”]; see also Stevens v. Department of Corrections (2003) 107 Cal.App.4th 285, 292 [“in the context of leave for an employee’s own serious health condition, the mere notice that an employee seeks to use sick time is insufficient to place the employer on notice that the employee seeks CFRA-qualifying leave”] [dictum].)

Yet, the court held (2-1) that the employee's claim that he gave the Kaiser doctor's notes to an unidentified manager was sufficient to create a triable issue of fact that he sufficiently requested a CFRA leave. The employee's testimony was sufficient to require a trial as to whether the company had adequate notice that the employee was hospitalized for 3 days, sufficient to
constitute a "serious health condition" requiring leave. The dissenting justice believe that the employee did not make a sufficient request for leave.

The opinion in Avila v. Continental Airlines is here.

California Paid Sick Leave Bill - Status

AB 2716 is the California bill that would mandate paid sick leave for ALL employers (even small ones), albeit with a few exceptions stated in the bill. The bill is modeled after San Francisco's paid sick leave ordinance, here. This is the probably the bill that would have the most impact on employers if it is passed and signed.
But, according to the Legislature's website, the bill has been placed in the Senate Appropriations Committee's "suspense" file (here). So, this bill may be dead, at least for this session.


California Supreme Court Says "no" to "Limited" Non-Compete Agreements, but "yes" to Broad Releases

The California Supreme Court issued its opinion in Edwards v. Arthur Andersen - read here -

The Court flatly rejected the "limited" or "narrow" non-competition agreement as unlawful under Bus. and Prof. Code section 16600. The court said that California's unfair competition law bans all non-compete agreements, even when they only restrict the employee's right to work for a limited number of employers. So, bid a sad goodbye to Ninth Circuit cases recognizing the "limited" non-compete such as International Business Machines Corp. v. Bajorek (9th Cir. 1999) 191 F.3d 1033 and General Commercial Packaging v. TPS Package (9th Cir. 1997) 126 F.3d 1131.

Below the fold, but perhaps more importantly, the court upheld a release that covered "any and all" claims. The lower court held that the release was invalid because it included unwaivable claims such as for reimbursement of expenses under Lab. Code section 2802. The court said that general release language such as at issue in Edwards impliedly did not include the release of claims that are not capable of being released:
We apply this rule in holding that a contract provision releasing “any and all” claims, such as that used in the TONC in the present case, does not encompass nonwaivable statutory protections, such as the employee indemnity protection of section Labor Code 2802. In so holding, we interpret the TONC such that it does not violate Labor Code section 2804. As a consequence, the TONC is neither unlawful nor null and void.

So, that's really good news for those of us employment lawyers who don't carve out all unwaivable claims from our releases.


California Supreme Court Takes Up Harvey v. Sybase

I posted here about Harvey v. Sybase. The California Supreme Court granted review here. The issues are whether the "same actor inference" (against discrimination) applies at trial and heightens the plaintiff's burden, and whether a court of appeal reviews a punitive damages award under the "clear and convincing" evidence standard.

Stay tuned.

Narrowcast Supreme Court Opinion Contains Hidden Gems

So, I actually did not read Miklosy v. Regents on the day it was issued. The headline holding is that the state's Whistleblower Protection Act, Gov't Code section 8547 et seq., does not apply to the University of California, unless the University fails to address an internal complaint. Of course, this case is important to the University, its lawyers, its employees, and people who sue the University. But I'm none of those.

Yet, at the end of the opinion, the Court made some key rulings that affect all of us California employment lawyers:
- the court endorsed the long line of court of appeal decisions holding that individuals may not be held liable for wrongful termination in violation of public policy;
- the court held that claims for intentional infliction of emotional distress are preempted by the Workers' Compensation Act even when the conduct alleged violates public policy. The claim for wrongful termination is not preempted, but the common law IIED claim is.
- public entities may not be sued for wrongful termination in violation of public policy.


New California Law: Limit on Wage and Hour Releases

The Governator signed another employment law. This one's called AB 2075, which modifies Labor Code section 206.5. already prohibits releases of any claim for wages unless payment has been made. The new subsection (b) will define "release" to include

requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period which the employer knows to be false.

If your organization requires employees to certify their hours before you pay them to avoid later wage claims, you may wish to take a look at your practices. This law will take effect 1/1/09.