Daniel J. McCoy

Daniel J. McCoy

Fenwick & West LLP

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New Laws Affecting California Employers

The 2014 legislative session is in the books, and it produced several new laws affecting employers in California, including: Private arbitration companies must provide arbitration data on their websites, in a...more

10/27/2014 - Arbitration Arbitration Agreements Compliance Discrimination Employee Rights Employer Liability Issues Harassment Internships Sexual Harassment Training Unpaid Interns Workplace Bullying

Are LinkedIn Contacts The Employer's Trade Secrets?

A federal district court in California held in Cellular Accessories For Less, Inc. v. Trinitas LLC that whether LinkedIn contact information can be an employer's trade secret is a factual dispute that must be decided by a...more

10/24/2014 - Customer Lists Employment Contract Former Employee LinkedIn Trade Secrets

Fenwick Employment Brief - October 2014

New Laws Affecting California Employers - The 2014 legislative session is in the books, and it produced several new laws affecting employers in California, including: Private arbitration companies must provide...more

10/23/2014 - American Arbitration Association Arbitration Arbitrators Bank Holding Company Customer Lists Discrimination Employer Liability Issues Harassment JAMS join Joint Employers LinkedIn New Legislation Reporting Requirements Retaliation Sexual Harassment Subsidiaries Trade Secrets Training Unpaid Interns Whistleblowers Workplace Bullying

Employee Lawfully Terminated for Failure to Undergo Psychological Exam

In Kao v. University of San Francisco, a California appellate court upheld a jury’s verdict that the University of San Francisco (“USF”) lawfully terminated a professor who refused to undergo a fitness-for-duty examination....more

9/22/2014 - Fitness for Duty Exams Hiring & Firing Medical Examinations Termination

California Becomes Second State to Mandate Paid Sick Leave

On September 10, 2014, Governor Brown signed into law AB 1522 (Healthy Workplaces, Healthy Families Act of 2014), which requires all California employers, large or small, to provide employees paid sick leave (with limited...more

9/19/2014 - Employee Benefits Employer Liability Issues Employment Policies New Legislation Paid Leave Sick Leave

Fenwick Employment Brief - September 2014

California Becomes Second State to Mandate Paid Sick Leave - On September 10, 2014, Governor Brown signed into law AB 1522 (Healthy Workplaces, Healthy Families Act of 2014), which requires all California employers,...more

9/18/2014 - Cell Phones Employee Rights Employer Liability Issues Medical Examinations Mental Health New Legislation NLRB Paid Leave Reimbursements Sick Leave

Partial-Day Leave Deductions Lawful for Exempt Employees

A California court of appeal recently confirmed that employers may require exempt employees to use accrued leave for partial-day absences, even if shorter than four hours. In Rhea v. General Atomics, plaintiff Lori Rhea, on...more

8/19/2014 - Accrued Benefits Appeals Employer Liability Issues Exempt-Employees Paid Leave

Activity Before NLRB and WA Supreme Court Highlights Joint Employer Risk

A recent announcement by the National Labor Relations Board’s (NLRB) General Counsel and a Washington Supreme Court decision underscore the risks of potential joint employer liability...more

8/18/2014 - Employee Rights Employer Liability Issues Franchises Franchisors Joint Employers McDonalds NLRA NLRB Unfair Labor Practices

Fenwick Employment Brief - August 2014

Partial-Day Leave Deductions Lawful for Exempt Employees - A California court of appeal recently confirmed that employers may require exempt employees to use accrued leave for partial-day absences, even if shorter than...more

8/15/2014 - Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers DOL EEOC Employee Rights Employer Liability Issues Exempt-Employees NLRA NLRB PAGA Paid Leave Retaliation

$15M Judgment Reversed Due to Flawed Statistical Sampling Approach to Class Action

In a significant victory for California employers, the California Supreme Court threw out a $15 million judgment in favor of allegedly misclassified employees. In Duran v. U.S. Bank National Association, a putative class of...more

6/20/2014 - Banks Classification Compliance Employee Rights Misclassification Statistical Sampling U.S. Bank National Association Wage and Hour

No Liability for Off-the-Clock Work Absent Employer Knowledge

A California appeals court refused to hold Kaiser Foundation Health Plan liable for alleged off-the-clock overtime about which it lacked knowledge. In Jong v. Kaiser Foundation Health Plan, Inc., Jong, together with two other...more

6/19/2014 - Employee Rights Kaiser Permanente Off-The-Clock Over-Time Wage and Hour

Fenwick Employment Brief - June 2014

No Liability for Off-the-Clock Work Absent Employer Knowledge - A California appeals court refused to hold Kaiser Foundation Health Plan liable for alleged off-the-clock overtime about which it lacked knowledge. In...more

6/18/2014 - Appeals Arbitration Class Action Class Certification Employer Liability Issues Employment Policies Exempt-Employees Kaiser Permanente Minimum Wage Non-Exempt Employees Over-Time Pregnancy Reasonable Accommodation Wage and Hour

FEHA Limitations Period Cannot be Shortened by Agreement

In Ellis v. U.S. Security Associates, a California Court of Appeal held that an employer’s attempt to shorten the one year statute of limitations to file a harassment claim under FEHA was against public policy and...more

4/29/2014 - Claims Limitations Period FEHA Harassment

NLRB Continues to Scrutinize Employee Handbook Provisions

In Hills and Dales General Hospital, the NLRB recently determined that an employer’s standards of behavior policy that prohibited “negative comments” and “negativity or gossip,” and directed employees to represent the...more

4/28/2014 - Employee Handbooks Employer Liability Issues Employment Policies Hills and Dales NLRB

SEC Cautions Employers Not To Discourage Whistleblower Claims

In a recent speech, the SEC recently warned businesses not to attempt to disincentivize company whistleblowers from bringing alleged wrongdoing to the attention of the SEC, and that the SEC is “very concerned” about any...more

4/25/2014 - Employer Mandates SEC Whistleblowers

Employee Terminated for Stealing Caused by Disability Entitled to Discrimination Trial

Is an employer allowed to enforce a uniformly-applied workplace conduct policy against an employee whose misconduct was caused by her disability? A federal district court in California said “maybe, maybe not,” and determined...more

4/24/2014 - Corporate Counsel Disability Discrimination EEOC Employment Policies Hiring & Firing Termination Walgreens

Supreme Court Confirms FICA Taxes Must be Withheld from Severance Payments

Finding severance payments to be a form of “remuneration for employment,” the United States Supreme Court in United States v. Quality Stores, Inc. held that such payments are taxable wages – and thus subject to withholding –...more

4/23/2014 - FICA Taxes Quality Stores SCOTUS Severance Pay Wages

Fenwick Employment Brief - April 2014

Supreme Court Confirms FICA Taxes Must be Withheld from Severance Payments - Finding severance payments to be a form of “remuneration for employment,” the United States Supreme Court in United States v. Quality Stores,...more

4/22/2014 - ADA Disability Discrimination EEOC Employee Handbooks Employer Liability Issues Employment Policies FEHA FICA Taxes Harassment Hills and Dales Hiring & Firing NLRB Posting Requirements Reasonable Accommodation SCOTUS SEC Severance Pay Statute of Limitations Title VII Wages Whistleblowers

No Showing That “Primarily Engaged In” Requirement Met Where Executive Employee Spent More Than 50% Of Time Performing Non-Exempt...

In Guilfoyle v. Dollar Tree Stores, Inc., a federal district court in California held that an employer was unable to meet the “primarily engaged in” requirement of the executive exemption test where the employee spent more...more

2/25/2014 - Classification Employer Liability Issues Exempt-Employees Non-Exempt Employees

Walmart Potentially Liable For Wage Violations As Joint Employer Of Subcontractors’ Employees

Finding that ample evidence existed that Walmart exercised control over the working conditions of the workers employed by Walmart’s warehouse subcontractors, a California federal district court in Carrillo v. Schneider...more

2/24/2014 - Contractors Employer Liability Issues Subcontractors Wage and Hour Wages Wal-Mart

Age Discrimination Claim Survives Dismissal Where Questions Existed Regarding Adequacy Of Job Performance And Employee Presented...

Reversing a trial court’s decision in favor of the employer, a California Court of Appeals in Cheal v. El Camino Hospital held that a former employee may present her age discrimination claim to a jury because there were...more

2/21/2014 - Age Discrimination Appeals Hiring & Firing Poor Job Performance Termination

Access Of Computer System With Log-In Credentials Is Not Unlawful “Hacking”

A California federal court in Enki Corporation v. Freedman held that a former employee’s access of the employer’s computer systems through his log-in credentials did not amount to unlawful hacking under either the Computer...more

2/20/2014 - CFAA Data Protection Hackers

Fenwick Employment Brief - February 2014

A California federal court in Enki Corporation v. Freedman held that a former employee’s access of the employer’s computer systems through his log-in credentials did not amount to unlawful hacking under either the Computer...more

2/19/2014 - Age Discrimination Confidentiality Agreements Exempt-Employees Former Employee Hackers Non-Exempt Employees Unemployment Wage and Hour

New Tax Law—Think Twice Before Agreeing Not to Contest UI Claim

Under amendments to the Unemployment Insurance Integrity Act of 2011 that took effect in late October, employers must now timely and adequately respond to a state unemployment agency’s information request about an employee’s...more

12/20/2013 - Fines Information Requests Penalties Reporting Requirements Unemployment Benefits

No Duty to Explore Cause of Poor Performance Absent Notice of Correlation to Disability

A federal district court in Washington refused to require an employer, absent some notice from an employee of the need to do so, to investigate the cause of the employee’s poor performance to explore whether it might be...more

12/19/2013 - Disability Essential Functions Hiring & Firing Interactive Process Notice Requirements Performance Reviews Reasonable Accommodation

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