Labor Commissioner to Enforce Local Minimum Wage Laws

I have represented scores of employees and employers before the California Labor Commissioner. Recently, with more and more cities and counties passing local ordinances raising the minimum wage for employees working within specific cities, the Labor Commissioner has sometimes taken the position that it is authorized to enforce local minimum wage laws.  I’ve spent a great deal of time reviewing the minimum wage ordinances passed in Oakland, San Jose, San Francisco and Emeryville, and to my knowledge none of the ordinances grant the Labor Commissioner authority to enforce those laws.  More importantly, the California legislature did not give the Labor Commissioner the power to enforce local minimum wage laws.

Labor Commissioner to Enforce Local Minimum Wage Laws

AB 970, which becomes effective on January 1, 2016, will now allow the Labor Commissioner to enforce local minimum wage laws.  AB 970 amends several Labor Code sections, including Labor Code section 558 (c), which will now state:

In a jurisdiction where a local entity has the legal authority to issue a citation against an employer for a violation of any applicable local overtime law, the Labor Commissioner, pursuant to a request from the local entity, may issue a citation against an employer for a violation of any applicable local overtime law if the local entity has not cited the employer for the same violation. If the Labor Commissioner issues a citation, the local entity shall not cite the employer for the same violation.

Labor Code section 1197 will now read:

The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.

The law does not require the Labor Commissioner to enforce the minimum wage laws, but it gives them the authority to do so if it chooses.  Additionally, the law prohibits local agencies and the Labor Commission from issuing citations against the same employer for the same violations.  Employers don’t have to worry that a city will cite them and then the Labor Commissioner will cite them for the same violation.  Of course, the Labor Commissioner can cite the employer for other violations outside the local government’s authority.

From my experience, the local agencies are not yet prepared to enforce the local minimum wage laws.  With the recent rise of local minimum wage laws, it is unclear how easily an already burdened Labor Commissioner will be able to enforce local minimum wage laws.  These new laws will give employees a new way to enforce local minimum wage laws.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, Berkeley, San Ramon, Concord, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Undocumented Workers Entitled to Workers’ Compensation Benefits

Every employer must have workers’ compensation insurance covering any workplace illness or injury.  Workers compensation provides specified benefits to injured workers regardless of fault so long as the injury arises out of the employment or occurred in the course of the employment.  Employers who do not have workers’ compensation insurance are subject to very serious fines.

What happens to an injured employee when the employer does not have workers’ compensation insurance?  The employee can petition the Workers Compensation Appeal Board for benefits under the state’s Uninsured Employers Fund and the Subsequent Injuries Benefits Trust Fund.  The employer may be required to reimburse the fund—plus penalties—but the employee receives the workers’ compensation benefits.

Undocumented Workers Entitled to Workers’ Compensation Benefits

Are undocumented workers entitled to workers’ compensation benefits? Yes.  But there was some question as to whether undocumented workers could receive workers’ compensation benefits through the Uninsured Employers Fund.  After all, the UEF is a state-run fund.  Allowing undocumented workers to receive benefits through the UEF means the state will be providing undocumented workers benefits.  But the UEF funds don’t come directly from the state.  It is funded by a surcharge on all insured employers and self- insured employers, by penalties to non-compliant employers, and by recoveries from uninsured employers for actual worker injuries.

SB 623 clarifies that undocumented workers are entitled to workers’ compensation benefits even if the employer is uninsured.  Newly enacted Labor Code sections 3733 and 4756 declare that it is in the best interest of the State of California to provide a person with workers’ compensation benefits regardless of his or her citizenship or immigration status.

The law specifically states: “A person shall not be prohibited from receiving compensation paid or payable from the Uninsured Employers Benefits Trust Fund [or from the Subsequent Injuries Benefits Trust Fund] solely because of his or her citizenship or immigration status.”  The new law overrides a California regulation that said “nonimmigrant aliens” are not eligible for benefits.  Because the new law says it is “declaratory of existing law,” undocumented workers with currently pending cases will be entitled to workers’ compensation benefits.

Is that a problem?  Not in my opinion.

Workers compensation is a no-fault system.  It is intended to provide benefits to employees who have been injured at work.  Employees give up the right to punitive damages and emotional distress damages in exchange for a more expedient process to ensure the worker receives the medical care s/he requires.  Although it is illegal to work in the United States without proper authorization, undocumented workers should not be punished because they are injured on the job.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, Berkeley, San Ramon, Concord, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

New Law Prohibits Sexual Orientation Violence

Existing law prohibits “gender violence.” Gender violence includes, “A physical intrusion or physical invasion of a sexual nature under coercive conditions.”  It does not matter whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.  However, gender violence could also include conduct that would:

constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.

New Law Prohibits Sexual Orientation Violence

Effective January 1, 2016, a new law expands protection to persons suffering violence as a result of their sexual orientation.  AB 830 amends the definition of “gender” under Civil Code 52.4, and adds Civil Code 52.45.  This new law prohibits sexual orientation violence.  Like gender violence, sexual orientation violence includes, conduct that would:

constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the sexual orientation of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.

Unlike gender violence, sexual orientation violence does not include the broader “physical intrusion or physical invasion of a sexual nature under coercive conditions” definition.  It’s not clear why the legislature decided to afford less protection when the violence is based on sexual orientation as opposed to gender.

Why is this important to employers and employees?  The existing law and the amended law state:

Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender [or sexual orientation] violence.

This means that an employer is not liable under these code sections for gender or sexual orientation violence unless the employer is the one that commits the violence.  Employers can still be liable for sexual harassment and sexual orientation harassment, and violence against employees based on their gender or sexual orientation would certainly qualify as unlawful harassment.

Employers must continue training their supervisors and employees regarding the importance of maintaining a safe and healthful work environment.  Employees subjected to intimidation, coercion, or threats of violence should report the problems to the employer immediately.  If your physical well-being is at risk, you may also need to contact local law enforcement.  In a perfect world, employees and employers will work together to eradicate violence in the workplace.  Until we get there, these new laws may help protect people for violence.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, Berkeley, San Ramon, Concord, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employers Must Provide Written Offer Before Using E-Verify

This year, Governor Brown signed AB 622, expanding the definition of “unlawful business practices” for employers using E-Verify.  The federal E-Verify system is administered by three different federal agencies, enables participating employers to use the system, on a voluntary basis, to verify that the employees are authorized to work in the United States.

Existing law prohibits state entities from requiring an employer—other than those government entities—to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds. Employers cannot use E-Verify to retaliate against employees.  For example, if you have an employee that makes an complaint about a violation of the law, and you want to terminate that employee, you cannot use E-Verify to determine the employee’s immigration status and use that as a basis for termination.

AB 622 adds Labor Code 2814 expanding the definition of an unlawful employment practice.  The new law prohibits an employer or any other person or entity from using the E-Verify to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment.  There are exceptions when federal law requires E-Verify.

The new law is intended to prevent discrimination in employment rather than to sanction hiring persons who are not authorized to work in the United States.

Employers Must Provide Written Offers Before Using E-Verify

Does this mean employers cannot use E-Verify?  No.  It just means, unless specifically required by federal law, employers must provide written offers before using E-Verify.

If an employer using E-Verify receives a “nonconfirmation notice”—i.e., E-Verify cannot confirm the employee is authorized to work in the United States or the employee is potentially using someone else’s social security number—the employer must provide the employee any notifications issued by the Social Security Administration or the United States Department of Homeland Security regarding the nonconfirmation notice.

Employers violating Labor Code 2814 could face civil penalties of up to $10,000 for each violation.

Employers should never retaliate against an individual for engaging in protected activity.  Newly enacted Labor Code 2814 adds additional penalties against employers misusing the E-Verify or similar systems.  Employers must provide written offers before using E-Verify.  The offer letters should state the offer is contingent upon the employee passing required background checks and proof the employee is authorized to work in the United States.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, Berkeley, San Ramon, Concord, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Hiring Employees Without Getting into Hot Water

As the economy improves and hiring increases, many clients have questions regarding how to avoid common pitfalls when hiring employees.  Asking the right questions and avoiding the wrong ones is just one step in Hiring Right!

Finding the Right Candidates

Hiring right begins with finding qualified candidates.  Before you begin your search make sure you know what you are looking for.  Explore your requirements and talk to others that will be working with, for and above the person.  What skills and qualities are needed?  What personalities will mesh with colleagues, subordinates and superiors?  What level of education or past experience is necessary for the job?  Will the person be supervising others?  Do you need someone with extensive experience in the field or will a recent graduate work better?  The answers to these questions and others are a good start in defining the position.

Once you determine the type of qualities and experiences the company needs, draft a job description to define the position.  An effective job description details the essential job functions, including any physical or mental requirements.  Having the essential job functions detailed in a formal job description enables you to determine what, if any, reasonable accommodations are possible for candidates with disabilities. The job description should list any job expectations and the reporting structure.  The job description should accurately reflect the work the employee is expected to perform.  Ambiguous or incomplete descriptions are not helpful and can cause problems in the future.  You may need to update the job description on an annual or more frequent basis depending on the actual work performed.

Determine a compensation range for the position as well as whether the employee will be eligible for incentive payment plans (i.e., commissions, bonuses).

Once the job description is created, determine whether the position should be classified as exempt or non-exempt.  Consult a professional familiar with the overtime laws if necessary.  Failing to correctly classify a non-exempt employee can result in an unpaid wage claim.  Recent years have seen a dramatic increase in overtime claims based on misclassification of non-exempt employees.

Once you have a Job Title for the position you are ready to create a job announcement.  Whether you work with a recruiter or post the job announcement online yourself, the job announcement should provide a good overview of the skills, qualifications and requirements of the position.  Some employers include pay ranges whereas others prefer to keep the pay range “close to the vest.”  Identifying the pay range may prevent people with higher salary requirements from applying, but may also encourage others to overstate their requirements.  Either method works if its right for you.

When considering where to post the announcement don’t forget to post the position internally.  Oftentimes the best candidates come from within your own personnel pool or from employee referrals.  Placement agencies and recruiters are a good choice if you don’t mind paying a referral fee.  Oftentimes they can vet the candidates reserving only qualified candidates for your review.  Consider posting the position with the Employment Development Department’s Job Match System.  If you are considering recent graduates, contact trade schools or other appropriate places of education.  Do not forget to put the job announcement on your own website and other online social media sites (e.g., www.LinkedIn.com, etc.).

Be aware: union contracts may require internal posting before seeking outside candidates.

When advertising the job, do not use language that could be interpreted as preferring one protected class over another (i.e., age, race, sex, national origin, marital status, sexual orientation, etc.) and state your Equal Employment Opportunity policy in the advertisement.  Do not make reference to the length of employment unless the position truly is temporary.  Remember, most employees are employed “at-will” and may be terminated or can quit for any or no reason.  Representations regarding the length of employment (i.e., “Our employees are like family – they never leave!”) can interfere with the at-will nature of the employment or lead to possible fraud claims.

The Interview Process

Hopefully your recruiting efforts resulted in a slew of qualified candidates and you now get to choose one among many to fulfill the vacant position(s).  Whether the candidates are interviewed by one person or several, each person participating in the interview process should review the job description and the candidate’s qualification prior to the interview.  Preferably, the decision makers will have already conferred about the qualities that the ideal candidate will possess.

The law prohibits discriminating against candidates based on various protected characteristics (e.g., age, race, sex, national origin, sexual orientation, disability, religion, marital status, etc.).  The law also may require employers to make reasonable accommodations for candidates with qualifying disabilities to enable such candidates to fully participate in the hiring process.  To avoid asking inappropriate or potentially unlawful questions, prepare the essential questions that you will ask every candidate ahead of time.  The questions should be designed to better enable the company to evaluate how well the candidates will be able to meet the criterion specified in the job description.  Asking the same questions to each candidate makes it less likely any single candidate can claim the interview process was slanted.

Try to ask open-ended questions, giving the candidate the opportunity to explain his/her qualifications or reasons for the answer.    Asking candidates how they handled, or would handle, specific scenarios can often provide insight into the candidates’ problem-solving and task-managing processes.

Do not, DO NOT, ask questions about:

Marital status

  • Are you single?
  • Do you live alone?
  • Are you dating anyone?
  • Have you ever been married?
  • Do you have or plan to have/raise a family?

Religion

  • Is that a Jewish name?
  • Where do you go to church?

Age

  • What year were you born?
  • What year did you graduate from high school?

Disabilities[1] or other medical conditions

  • Do you get sick often?
  • How often were you sick at your last job?
  • Do you need health insurance?
  • Have you ever been injured on the job?

Lawsuits (especially against prior employers)

Second languages unless speaking another language is an essential job function

Where the person was born

Are you a U.S. Citizen[2]?

Political affiliations

  • Who did you vote for?
  • What’s your take on [insert political issue of the day]?

Although not directly prohibited, employers should avoid asking about participation in clubs or other organizations because the answers may be perceived as asking about religion, age, etc.  Instead, ask if the candidate what interests the candidate has outside of work.

Questions should focus on the job requirements and the skills necessary to perform the job.

Some employers refuse to allow interviewers to take notes, fearing that something might be written in the notes and interpreted incorrectly.  I think notes can be helpful in recalling why a particular candidate was or was not chosen.  I do recommend the notes refer to objective information rather than subjective comments.  Note-takers should avoid comments such as “not a good fit” or “didn’t feel right.”  Instead, include the factors that led to those conclusions (e.g., “Wouldn’t make eye contact”  “Clothes were disheveled” “Did not answer questions directly”).

Checking Referrals

Some employers feel that checking referrals is a waste of time because the applicants will only provide referral sources that will provide positive information.  While this may be true, contacting former employers can help you evaluate strengths and weaknesses of potential candidates. Checking an applicant’s employment history can also verify the accuracy of the applicant’s resume and prevent a possible “negligent hiring” claim later on.

When checking references, obtain a release from the candidate authorizing the referral source to speak with you candidly about the applicant’s employment history.  As with the interview process, be consistent.  If you check references for one candidate, check references for all candidates.  The questions you ask should all be related to the job the applicant will perform.  Keep notes regarding the information obtained from prior employers with your notes from the initial interview.

Many companies do not know whether they should conduct background checks.  Background checks (as opposed to reference checks) usually refer to criminal and/or credit reporting checks.  Generally speaking, I recommend conducting a background check for employees that will have significant customer contact at customer sites or homes, or if the employee will be handling money. There are laws that limit the types of background checks employers can perform on certain employees.  If you are going to conduct a background check use a third party company familiar with the rights and responsibilities regarding how to conduct a proper background check.  Always ensure the employee authorizes the background check in writing.  NOTE: the background check authorization has to be separate from the general employment application paperwork.

Offer Letter or Employment Agreement?

Congratulations, you’ve found one or more qualified candidates!  Should you offer the job verbally or in writing?  The essential terms of the employment should always be in writing.  Essential terms include:

  • Job Title and possibly a short job description,
  • Reporting structure,
  • Compensation and benefits,
  • Vacation, Sick Leave, and/or PTO accrual if any,
  • Beginning employment date,
  • Necessity of providing appropriate documentation regarding ability to work in the U.S.
  • At-will nature of employment.

If you are going to make a verbal offer, send a written confirmation of the employment terms for the potential employee to sign.  If the offer is subject to any contingencies (such as successful background check or drug test[3]) make sure the contingencies are listed in the offer letter.  If the offer letter is a pre-cursor to a more formal Employment Agreement, ensure the terms remain the same and that the offer letter informs the employee that the employment is contingent upon execution of a formal Employment Agreement.

Many offer letters say they are not “contracts,” but they are.  At the very least they are written confirmation of the terms of the verbal contract.  Therefore, do NOT include any terms that are not part of the employment arrangement or that you will not be able to perform.

A detailed written offer may negate the need for a formal Employment Agreement.  However, depending on the level of formality and the essential terms of the employment an Employment Agreement may be necessary.  Many companies will require employees to sign Confidential and Proprietary Information Agreements.  These agreements can be part of or separate from the Employment Agreement.

Whether you use an offer letter, an Employment Agreement, a Confidential and Proprietary Information Agreement, or some combination thereof, have the documents reviewed by qualified counsel to ensure the terms are clear, unambiguous, lawful and beneficial to the company.

The Employee’s First Day

Hiring right does not end until the employee receives a copy of all essential handbooks and benefit policies and receives any necessary training or orientation.  Smart employers have all of the new employee paperwork together for the employee on their first day, as well as a check list the HR Manager can use to confirm the employee’s receipt of the necessary paperwork.

The following paperwork is either required or highly recommended:

  • Notice to Employee (Labor Code 2810.5)
  • Report of New Employee (DE-34 from the EDD)
  • Employee’s State Withholding Allowance (DE-4 from the EDD)
  • Employee’s Federal Withholding Allowance (from IRS)
  • State Disability Insurance Pamphlet (DE-2515 from the EDD)
  • Paid Family Leave Pamphlet (From the DFEH)
  • Workers’ Compensation Rights and Benefits Notice (from WCAB)
  • Employment Eligibility Verification (I-9 from UCIS)
  • Sexual Harassment Information Sheet (From DFEH)
  • Personal Physician/Chiropractic Pre-designation Form (from WCAB)
  • COBRA, Cal-COBRA and/or HIPAA Questionnaire if the company offers health benefits

I also recommend confirming receipt of the following employment and benefit policies:

  • Sexual Harassment Prevention Policy
  • At-Will Employment Policy
  • Computer and Technology Use Policy
  • Employee Handbook
  • Summary Plan Descriptions or other paperwork regarding Health, Disability, Retirement or other employer-provided benefits

The employee should sign an acknowledgement that s/he received each of the policies.

Consider what type of training the employee will receive and implement the training as soon as possible.  If there is any safety or hazardous material training required prior to performing the job ensure the proper certifications are obtained before the employee performs any such work.

In Conclusion …

Hiring right is not something that just happens.  It takes careful consideration of the options and tactics that will work best for your company.  Thoughtful contemplation of your company’s needs and frank discussions with knowledgeable counsel regarding the various rights and responsibilities imposed by law can ensure your company hires and retains the right employees – and avoids costly litigation!

 

[1] You may show candidates the job description and ask, “Would you be able to perform the essential functions of this job with or without reasonable accommodations?”  Do not ask “Do you have a disability that would interfere with this job?”
[2] You may ask, “If you are hired, can you provide evidence that you are legally able to work inside the United States?”  However, if you ask the question to one candidate you must ask it of all candidates.
[3] When an employer can drug test a potential or current employee is regulated.  Speak with a knowledgeable professional before implementing a drug testing policy.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, Berkeley, San Ramon, Concord, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Don’t Retaliate Against Desperate Housewives

OK. I admit it.  For a short-time I watched Desperate Housewives.  I’d like to say I only watched it because my wife made me, but the truth is, I liked the show.  I also learned you don’t retaliate against desperate housewives.  So, when I heard that actress Nicolleta Sheridan—who played my favorite character, Edie Britt—was suing Touchstone Television Productions, it piqued my interest.

Apparently, Sheridan sued Touchstone under Labor Code section 6310, alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by the show’s creator, Marc Cherry.  Touchstone claimed Sheridan failed to “exhaust her administrative remedies” by filing a claim with the Labor Commissioner.  Although the trial court agreed with Touchstone, the appellate court made it clear you don’t retaliate against desperate housewives.

Don’t Retaliate Against Desperate Housewives

Sheridan alleged that “during a September 24, 2008 rehearsal, Sheridan attempted to question Cherry about the script, and he struck her in response. Sheridan complained about the alleged battery to Touchstone.”  When Touchstone did not renew Sheridan’s contract for the 6th season—I had stopped watching by then—she sued Touchstone for wrongful termination in violation of public policy.  In true Hollywood fashion, the jury deadlocked and the court declared a mistrial.  Sheridan filed a second amended complaint, alleging that Touchstone “retaliated against her in violation of section 6310 for complaining about Cherry’s alleged battery.”

Touchstone argued that Sheridan had to first file a claim with the Labor Commissioner under sections 98.7 and 6312.  Touchstone’s position had some merit, since a depublished case said employees had to exhaust their administrative remedies before filing a retaliation claim.  But in 2013, the legislature amended the Labor Code to specifically state “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.”

The appellate court, which was not bound by the previously depublished decision, found that the plain language of sections 6312 and 98.7 before the 2013 amendments allowed filing a Labor Commissioner complaint, but did not require exhaustion. The court went on to find that the 2013 amendment to the Labor Code “merely clarified existing law.”

So, Sheridan will get another day in court and we get to find out if Touchstone should have headed my advice: Don’t retaliate against desperate housewives.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.