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2010 California Employment Law Newsletter: Click on the Newsletter to read about important updates in
employment law for California employers.
Trade Secrets
In a recent case, Perlan Therapeutics v. Super. Ct. (Nexbio, Inc.) (CA4/3 G042205 11/5/09), the California Court of
Appeal ruled that a company attempting to protect their trade secrets did not properly identify the trade secrets at issue.
In Perlan, a biotech company's founders left Perlan and formed a competitor, NexBio. Perlan brought an action
against the two former employees claiming the employees had misappropriated its trade secrets. California
discovery statutes require that a plaintiff bringing an action for misappropriation of trade secrets file a trade secret
statement before beginning discovery of the trade secrets. The statement must identify with "reasonable particularity"
the trade secrets that are alleged to have been misappropriated. The trial court found that Perlan's statement lacked
the necessary particularity, and granted the defendant employees an order that precluded discovery until Perlan
provided sufficient identification of its claimed trade secrets. The Court of Appeal affirmed. In conclusion, employers
should take steps to protect their trade secrets during litigation. Employers should also identify their trade secrets
and review their policies to keep the trade secrets confidential.
Wrongful Termination/Mistaken Overtime Wage Claim
In a recent case, Barbosa v. Impco Technologies (CA 4/3 G041070 11/30/09), the California Supreme Court of
Appeals held that public policy protects an employee from being terminated for making a mistaken but good faith
claim to overtime compensation. Click here to read more.
Harassment/Damages
In a recent case, Roby v. McKesson Corp. (SC S149752 11/30/09), the California Supreme Court ruled that evidence
of personnel actions can support harassment claims but that the amount of punitive damages awarded was
constitutionally excessive. Click here to read more.
Respondeat Superior/Special Errand Doctrine
In a recent case, Jeewarat v. Warner Bros. Entertainment (CA2/5 B212323 9/3/09), an employer is held liable when an
employee gets into a car accident on the way home from a business conference.
In Jeewarat v. Warner Bros, an employee that was driving home from the airport after a 3-day conference, drove past
his office and continued toward home, when he was involved in a car accident that injured several pedestrians. The
injured plaintiffs sought to impose liability against the employer based on principles of respondeat superior, meaning
that the employer is responsible for the acts of its employees. The employer argued that since the employee was
"going and coming," as part of a normal commute, the employer is not subject to vicarious liability for the accident. The
plaintiffs argued that the conference is covered under the "special errand doctrine," which holds an employer
vicariously liable for accidents occurring while an employee is engaged in a special errand for the employer, including
the employee's commute to or from the special errand. The court held that an employee's attendance at an out-of-
town business conference may be considered a special errand under the special errand doctrine. In addition, when
an employee intends to drive home from the errand, the errand is not concluded simply because the employee drives
his regular commute route, but rather, the errand is concluded when the employee returns home or deviates from the
errand for personal reasons.
Employers should review their employment policies and ensure that all employees that are permitted to drive for the
employer are properly licensed and insured.
Employers Are Required To Provide Meal Breaks But Not "Ensure" Breaks Are Taken
The California Supreme Court is reviewing the employer-friendly case of Brinker Restaurant v. Superior Court of San
Diego. Brinker addressed employment issues under California law relating to meal periods, rest periods, and off-the-
clock work, as well as procedural issues raised in class action lawsuits based on these type of claims. The decision
is not expected until late 2009 at the earliest.
Validity of Arbitration Agreements
In a victory for employers, the court in Sonic-Calabasas A, Inc. v. Moreno (CA2/4 B204902 5/29/09), enforced a valid
arbitration agreement. In this decision, the Court of Appeals held that a properly drafted employment arbitration
agreement may be used by an employer to dismiss an employee’s administrative wage claim against his former
employer for unpaid vacation pay. Click here for more information.
2009 California Employment Law Newsletter: Click on the Newsletter to read about important updates in
employment law for California employers.
New COBRA Subsidy
On February 17, 2009, the President signed the stimulus package, H.R. 598, which includes an expansion of COBRA
benefits under the Health Insurance Assistance for the Unemployed Act of 2009. A COBRA subsidy will assist certain
unemployed workers with the cost of COBRA insurance and put a new administrative burden on employers. Click
here for more information.
2008 California Employment Law Newsletter: Click on the Newsletter to read about important updates in
employment law for California employers.
Employer's Review of Employee's Text Messages
The case Quon V. Arch Wireless (9th Cir. 07-55282 6/18/08), was recently decided regarding the privacy of an
employee’s text messages that were sent and received on the employer’s pager. This case has been misinterpreted
in recent news media to indicate that an employer may not read an employee’s text message or e-mail without the
employee’s consent. The holding of the case is more narrow and turned on the fact that the supervisor led the
employee to believe the text messages were private. Read more by clicking here.
Genetic Information Non-Discrimination Act
The Genetic Information Non-Discrimination Act (GINA) (H.R. 493) was recently enacted to prohibit employers from
discharging, refusing to hire, or otherwise discriminating against employees or applicants on the basis of genetic
information. "Genetic information" includes an individual’s own genetic tests; the genetic tests of family members;
and the manifestation of a disease or disorder in family members. The law prohibits employers from requiring genetic
testing and from purchasing or collecting genetic information. Exceptions allow collection of the information when it is
required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.
Red Flag Rules
Red Flag requirements that implement the federal Fair and Accurate Credit Transactions Act, (“FACTA” or “FACT Act”)
are mandatory as of November 1, 2008. This act requires creditors to develop and implement a written Identity Theft
Prevention Program to detect, prevent, and mitigate identity theft in connection with the opening of certain accounts or
certain existing accounts and securely disposing of that information when it is no longer needed. Click here to read
more information and click here to see the FTC's 26 red flag guidelines.
Sexual Harassment Training Requirements
California law requires all supervisors to receive at least two hours of sexual harassment prevention training that
must include information regarding federal and state sexual harassment laws, harassment prevention and correction,
and remedies available to victims. The law applies to all organizations with 50 or more employees. Sexual
harassment prevention training is recommended for all businesses.
Click here to see the Final Proposed Sexual Harassment Training & Education Regulations
As Adopted by the Fair Employment and Housing Commission on November 14, 2006.
employment law for California employers.
Trade Secrets
In a recent case, Perlan Therapeutics v. Super. Ct. (Nexbio, Inc.) (CA4/3 G042205 11/5/09), the California Court of
Appeal ruled that a company attempting to protect their trade secrets did not properly identify the trade secrets at issue.
In Perlan, a biotech company's founders left Perlan and formed a competitor, NexBio. Perlan brought an action
against the two former employees claiming the employees had misappropriated its trade secrets. California
discovery statutes require that a plaintiff bringing an action for misappropriation of trade secrets file a trade secret
statement before beginning discovery of the trade secrets. The statement must identify with "reasonable particularity"
the trade secrets that are alleged to have been misappropriated. The trial court found that Perlan's statement lacked
the necessary particularity, and granted the defendant employees an order that precluded discovery until Perlan
provided sufficient identification of its claimed trade secrets. The Court of Appeal affirmed. In conclusion, employers
should take steps to protect their trade secrets during litigation. Employers should also identify their trade secrets
and review their policies to keep the trade secrets confidential.
Wrongful Termination/Mistaken Overtime Wage Claim
In a recent case, Barbosa v. Impco Technologies (CA 4/3 G041070 11/30/09), the California Supreme Court of
Appeals held that public policy protects an employee from being terminated for making a mistaken but good faith
claim to overtime compensation. Click here to read more.
Harassment/Damages
In a recent case, Roby v. McKesson Corp. (SC S149752 11/30/09), the California Supreme Court ruled that evidence
of personnel actions can support harassment claims but that the amount of punitive damages awarded was
constitutionally excessive. Click here to read more.
Respondeat Superior/Special Errand Doctrine
In a recent case, Jeewarat v. Warner Bros. Entertainment (CA2/5 B212323 9/3/09), an employer is held liable when an
employee gets into a car accident on the way home from a business conference.
In Jeewarat v. Warner Bros, an employee that was driving home from the airport after a 3-day conference, drove past
his office and continued toward home, when he was involved in a car accident that injured several pedestrians. The
injured plaintiffs sought to impose liability against the employer based on principles of respondeat superior, meaning
that the employer is responsible for the acts of its employees. The employer argued that since the employee was
"going and coming," as part of a normal commute, the employer is not subject to vicarious liability for the accident. The
plaintiffs argued that the conference is covered under the "special errand doctrine," which holds an employer
vicariously liable for accidents occurring while an employee is engaged in a special errand for the employer, including
the employee's commute to or from the special errand. The court held that an employee's attendance at an out-of-
town business conference may be considered a special errand under the special errand doctrine. In addition, when
an employee intends to drive home from the errand, the errand is not concluded simply because the employee drives
his regular commute route, but rather, the errand is concluded when the employee returns home or deviates from the
errand for personal reasons.
Employers should review their employment policies and ensure that all employees that are permitted to drive for the
employer are properly licensed and insured.
Employers Are Required To Provide Meal Breaks But Not "Ensure" Breaks Are Taken
The California Supreme Court is reviewing the employer-friendly case of Brinker Restaurant v. Superior Court of San
Diego. Brinker addressed employment issues under California law relating to meal periods, rest periods, and off-the-
clock work, as well as procedural issues raised in class action lawsuits based on these type of claims. The decision
is not expected until late 2009 at the earliest.
Validity of Arbitration Agreements
In a victory for employers, the court in Sonic-Calabasas A, Inc. v. Moreno (CA2/4 B204902 5/29/09), enforced a valid
arbitration agreement. In this decision, the Court of Appeals held that a properly drafted employment arbitration
agreement may be used by an employer to dismiss an employee’s administrative wage claim against his former
employer for unpaid vacation pay. Click here for more information.
2009 California Employment Law Newsletter: Click on the Newsletter to read about important updates in
employment law for California employers.
New COBRA Subsidy
On February 17, 2009, the President signed the stimulus package, H.R. 598, which includes an expansion of COBRA
benefits under the Health Insurance Assistance for the Unemployed Act of 2009. A COBRA subsidy will assist certain
unemployed workers with the cost of COBRA insurance and put a new administrative burden on employers. Click
here for more information.
2008 California Employment Law Newsletter: Click on the Newsletter to read about important updates in
employment law for California employers.
Employer's Review of Employee's Text Messages
The case Quon V. Arch Wireless (9th Cir. 07-55282 6/18/08), was recently decided regarding the privacy of an
employee’s text messages that were sent and received on the employer’s pager. This case has been misinterpreted
in recent news media to indicate that an employer may not read an employee’s text message or e-mail without the
employee’s consent. The holding of the case is more narrow and turned on the fact that the supervisor led the
employee to believe the text messages were private. Read more by clicking here.
Genetic Information Non-Discrimination Act
The Genetic Information Non-Discrimination Act (GINA) (H.R. 493) was recently enacted to prohibit employers from
discharging, refusing to hire, or otherwise discriminating against employees or applicants on the basis of genetic
information. "Genetic information" includes an individual’s own genetic tests; the genetic tests of family members;
and the manifestation of a disease or disorder in family members. The law prohibits employers from requiring genetic
testing and from purchasing or collecting genetic information. Exceptions allow collection of the information when it is
required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.
Red Flag Rules
Red Flag requirements that implement the federal Fair and Accurate Credit Transactions Act, (“FACTA” or “FACT Act”)
are mandatory as of November 1, 2008. This act requires creditors to develop and implement a written Identity Theft
Prevention Program to detect, prevent, and mitigate identity theft in connection with the opening of certain accounts or
certain existing accounts and securely disposing of that information when it is no longer needed. Click here to read
more information and click here to see the FTC's 26 red flag guidelines.
Sexual Harassment Training Requirements
California law requires all supervisors to receive at least two hours of sexual harassment prevention training that
must include information regarding federal and state sexual harassment laws, harassment prevention and correction,
and remedies available to victims. The law applies to all organizations with 50 or more employees. Sexual
harassment prevention training is recommended for all businesses.
Click here to see the Final Proposed Sexual Harassment Training & Education Regulations
As Adopted by the Fair Employment and Housing Commission on November 14, 2006.
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