BCLP At Work

BCLP At Work

Other Posts

Main Content

You’ve Been Warned: California’s WARN Act Is Broader Than the Federal Warn Act

As with so many other situations involving California’s employment laws, its protection for California-based employees experiencing a job loss is broader than the protections under federal law.  In The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 998, et al. v. Nassco Holdings Inc., et al., the California Court of Appeal, Fourth Appellate Division held, among other things, that California’s version of the Worker Adjustment and Retraining Notification (“WARN”) Act is broader than its federal counterpart.

The specific issue the court addressed was whether a furlough of several weeks constituted a “layoff” for purposes of a “mass layoff,” triggering the 60-day notice period when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period.  The defendant argued unsuccessfully that no notice was required because its work stoppage was only for a brief period and therefore its action was not a “layoff” or “mass layoff.”  By contrast, the plaintiffs argued that notice was required because the statutory phrase “mass layoff” has no temporal limitation and includes the type of temporary layoffs that occurred, i.e., no termination, only a temporary separation from the position for lack of funds or lack of work.

In siding with the plaintiffs, the court relied upon the plain meaning of the statute, in addition to its recognition that the California Legislature specifically passed its WARN Act to provide broader protections for California employees.  The court noted, among other things, the following differences between the federal WARN Act and the

California Enacts New Law Expanding Parental Leave to Small Employers

On Thursday, October 12, 2017, California Governor Jerry Brown signed legislation that extends twelve weeks of unpaid parental leave to California employees who work for small businesses.  The New Parent Leave Act applies generally to California employers with at least 20 and no more than 49 employees.  The practical effect of the Act is to expand the parental leave required under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to smaller employers.  The new law takes effect on January 1, 2018.

Under the New Parent Leave Act, an employee may take up to twelve weeks of unpaid parental leave within one year of a child’s birth, adoption, or foster care placement, so long as the employee (1) works at a location where the employer has at least 20 employees within a 75 mile radius, (2) has at least twelve months of service with the employer, and (3) has worked at least 1,250 hours during the previous twelve months.  The new law requires the employer to maintain the employee’s health care coverage, but the employer can recover the premium paid if the employee fails to return from leave due to a reason other than a serious health condition or “other circumstances beyond the control of the employee.”

The law also creates a “parental leave mediation pilot program” that will last through January 1, 2020.  Under the “pilot” mediation program, if an employer requests mediation within 60 days of receiving a right to sue notice,

“My Employer Made Me Do It” — Texas Supreme Court Rejects a Claim for Compelled Self-Defamation

August 5, 2017

Categories

On May 26, 2017, the Texas Supreme Court addressed whether Texas recognizes a defamation claim for compelled self-publication.  The Texas Supreme Court, joining a number of other states, including Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania and New York, rejected a claim of compelled self-defamation in Texas.  Other states, such as California and Colorado, recognize a claim for compelled self-defamation.

Generally speaking, a defamation claim includes the following elements:

  • The publication of a false statement of fact to a third-party,
  • That was defamatory concerning the plaintiff,
  • With the requisite degree of fault, and
  • Damages, in some cases.
  • The issue regarding “compelled self-publication” relates to the first element.  Specifically, does the publication have to be made by the defendant or can it be made by the plaintiff.

    In Exxon Mobile, the plaintiff, Gilberto Rincones, was a catalyst technician and was required to take and pass a drug test.  Mr. Rincones failed a random drug test when he tested positive for marijuana use.  Mr. Rincones left the company and ultimately filed a lawsuit alleging various causes of action, including a cause of action for defamation based on the notion of compelled self-publication.  Specifically, he alleged he would have to report to future employers that he had been terminated for failing a drug test.  The Texas Supreme Court rejected the self-defamation claim and “expressly decline[d] to recognize a theory of compelled self-defamation in Texas.”

    The Court offered various rationales for its decision.  The Court observed that a plaintiff cannot recover for injuries as a

    “Male, Female, A Combination of Male and Female, Neither Male Nor Female”… New California Regulations Regarding Transgender Identity and Expression

    Effective July 1, 2017, there are new regulations adopted by California’s Fair Employment and Housing Authority which significantly expand protections against discrimination for the transgendered.

    Broader Definitions

    The regulations expand the meaning of “gender identity” to include an individual’s “internal understanding” of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.  Similarly, the definition of “sex” is expanded to include “perception by third-party of any of the aforementioned” and the term “sex stereotype” is expanded to include “gender roles, gender expression or gender identity.”  Additionally, a new definition of “transitioning” is included to mean the “process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.  This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, teambuilding projects or volunteering), while undergoing hormone therapy, surgeries or other medical procedures.”

    Defenses

    The regulations enumerate a number of defenses based on a bona fide occupational qualification (“BFOG”) but go on to specify various situations which will not justify the application of the BFOQ defense including, by way of example, “the fact that an individual is transgender or gender nonconforming, or that the individual sex assigned at birth is different from the sex required for the job.”

    Employers Should Accept Resignations As Soon As Possible

    Although an employee can claim constructive termination, it is always beneficial for an employer to accept, as soon as possible and in writing, an employee’s resignation.  By doing so, the employer creates a clear record that an employee was not fired and limits the potential claims which an employee can assert against the employer.

    This point was recently illustrated in Featherstone v. Southern California Permanente Medical Group.  In that case, the ultimate issue was whether a resignation is an “adverse action” under California’s anti-discrimination law, the Fair Employment and Housing Act.  In that case, Ms. Featherstone tendered her resignation on December 23, 2013, and it was immediately accepted.  The court recognized that general contract rules apply to resignations and that “a resignation is an offer which may be withdrawn prior to its acceptance.”  In that circumstance, however, though Ms. Featherstone subsequently tried to rescind her resignation, the court held that she was no longer able to rescind the resignation (which was an offer) because it had already been accepted.

    Of equal importance, the court held that the refusal of the company to allow Ms. Featherstone to rescind her resignation was not an “adverse employment action” and, therefore, she had no claim under the Fair Employment and Housing Act for discrimination and/or retaliation because both such claims require an adverse employment action.

    Take Aways:

    • An employer should accept an employee’s resignation as soon as possible and in writing;
    • Not every perceived wrong by an employee constitutes an adverse employment action
    The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.