Litigation Topics: Employment

Ninth Circuit Upholds Free Speech Rights of Academic Employees; Pickering Test, not Garcetti Decision, Applies

In Garcetti v. Cevallos, 547 U.S. 410 (2006) the United States Supreme Court held that when a public employee speaks out in his or her capacity as a public employee (and not as a private citizen) the remarks are not protected by the First Amendment and may support disciplinary action by the employer.  In the wake of that decision, questions have arisen as to whether various individuals were, in fact, speaking out in their “official capacity” or as private citizens on matters of public concern.

Courts Uphold “Ministerial Exception” in Wrongful Termination Case; Religious School Exempt from Title VII, ADA and FEHA; Key is Religious Nature of Employer and Religious Nature of Employee's Duties


The First Amendment protects religious freedom and, because of that important right, religious institutions are entitled to an exemption from civil rights statutes that govern employment discrimination.  This principle was at the core of two important decisions, one from the U.S. Supreme Court and another from the California Court of Appeal.

PERB Confirms Rules of Grievance Handling and Union’s Duty of Fair Representation; Union Must be Fair, But Is Not Required To Be Perfect

A decision from California’s Public Employment Relations Board clarifies the rules that apply when an employee asserts that his/her union breached the “duty of fair representation” when handling (or in this case not handling) the employee’s grievance. Here is the nub of the PERB ruling in Jacala v. SEIU:

California Supreme Court Rules that State Overtime Rules Apply to Out –Of-State Employees Who Work in California

In today’s global economy, a company may well employ staff who work in several states or even in different countries.  One legal issue that arises in such circumstances is whether California’s overtime laws apply to such out-of-state employees – i.e., persons who are domiciled elsewhere but work in California only part of the time.

Public Employees First Amendment Rights Upheld By Ninth Circuit; School District Employee Engaged in Protected Speech When She Sat Next To Colleague at Board Meeting

We have commented previously about the First Amendment free speech rights of public employees.  In Nichols v. Dancer, the law took another step in favor of protecting an employee’s right to associate with colleagues who may be involved in controversial issues.

Class Action Update: Class Action Waivers May be Enforced Under Federal Arbitration Act; But If the Case Stays in Federal Court, The Class Must Be Manageable. ATT Mobility v. Concepcion & Wal-Mart v. Dukes Highlight 2010-11 U.S. Supreme Court Term

When the United States Supreme Court decides a case, it is always an important event, but two cases in the 2010-2011 term were more important to litigators – especially labor and employment litigators – than others.

Employers Must Reasonably Accommodate Disabled Employees; Court of Appeal Clarifies Duties When An Employee Needs to Be Moved To A Different Position

It is hornbook law that employers must “reasonably accommodate” disabled employees. But what happens when an employee can still work, but can’t perform all of the essential duties of his or her former job?  Does the employer have to find a different position?  What if the disabled worker is more senior to another employee who occupies the lesser position that could be filled by the disabled person?  Can the disabled worker “bump” the junior employee?

Violent Misconduct by Employee Supports Termination under ADA or FEHA – Even if Caused by a Disability

Housing Act (FEHA) protect employees against discrimination because of their disabilities.  Mental disabilities are covered under both laws.

But there are two key factors that are always in play in these cases. First, the employee in question must be “otherwise qualified.” That is to say, the employer must be able to perform his or her job, assuming the employer can reasonably accommodate the disability.

Computer Fraud & Abuse Act: Unauthorized Use by Employees

An employee who makes unauthorized use of an employer’s computer equipment is subject to civil and criminal liability under the federal Computer Fraud & Abuse Act (“CFAA,” 18 U.S.C. §§ 1030).

Hudson Notice Not Required For Mid-Year Temporary Fee Increase

Public employee unions are required to send a “Hudson notice” to bargaining unit members which must provide an “adequate explanation of the basis for union representation fees, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amount reasonably in dispute while such challenges are pending.  (See Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986.)).