Seyfarth Synopsis: Employers are usually mindful of the many laws governing employee medical leaves and how they interact. But what about accommodation for non-medically necessary leaves? This post discusses the basics of employee leaves for elective medical procedures.

California employers who administer employee leave laws navigate a complicated labyrinth. Employers must consider interactions among federal laws (ADA, FMLA, Title VII), state and local laws (CFRA, FEHA, PFL), and even their own internal employer policies. It gets even more complicated when employees would like to take medical leave for procedures that aren’t medically necessary, but rather are elective. So what is an employer to do when an employee says they want to take two weeks off for that nose job or tummy tuck?

“Tell Me What You Don’t Like About” California Laws—The Basics

The FMLA and the CFRA both entitle qualifying employees to up to 12 weeks of unpaid leave per 12-month period for an employee’s own “serious health condition” that prevents them from performing their essential job functions. A serious health condition is defined broadly as an illness or injury that involves inpatient care, a period of incapacity of more than three consecutive calendar days that also involves treatment by a health care provider, or a chronic condition requiring treatment. It follows then, that elective procedures in and of themselves do not qualify as a serious health condition that would require protected medical leave, absent some complication (discussed below).

Employers should also note that elective procedures aren’t just limited to lifts and augmentations. Elective procedures fall within a broad range that includes such varied items as treatment for acne and orthodontics.

Whatever the reason for medical leave may be, an employer may require medical certification of the employee’s serious health condition. If there is reason to doubt the validity of the certification, the employer can usually go so far as to get a second opinion. If an employee refuses or fails to provide the certification, the leave request could be delayed or even denied.

Importantly, under federal law, the medical provider can be asked to state the diagnosis or medical facts supporting the need for the leave; however, California law is different. Here, whether the leave is requested under CFRA or the FEHA, the employer is limited to obtaining a certification from a qualified provider that the leave is needed as an accommodation for a medical condition or disability, and the expected duration of the leave. This begs the question of how the employer is to know that the leave is for an elective procedure.  Since the employer cannot ask, the information is usually shared voluntarily by the employee or his/her medical provider.

You’ve Got A New Wrinkle?—Leave Complications

While the laws are clear that purely elective procedures aren’t covered by FMLA/CFRA statutory leave, there is a complication: where a serious health condition arises out of an elective procedure. That is to say, an elective procedure can result in inpatient care in a hospital, where complications develop. In this situation, provided that the employer receives proper notice, employees may qualify for statutory protected leave.

Another wrinkle that employers should know is that restorative dental or plastic surgeries after an injury or removal of cancerous growths are considered serious health conditions for which protected leave is required, provided the presence of the other conditions constituting a serious health condition.

“Appearance Is Everything”—Post-Op Disability Leave Checklist

Frequently, employers face situations where an employee cannot return to work after a 12 week FMLA/CFRA medical leave is up. What’s next?

This situation can trigger an interactive process under the ADA/FEHA, in which the employer and employee must work together to see what reasonable accommodations, if any, can enable the employee to perform the essential job functions. Strong interactive process procedures, including ongoing communication with the affected employee (where possible), are staunch tools in an employer’s possible defense to some ensuing discrimination claim.

One possible reasonable accommodation may be a further leave of absence. But both the FEHA and the ADA allow an employer to avoid providing further leave of absence if it would be not be reasonable to do so. California courts have concluded that employers need not provide an indefinite leave of absence as a reasonable accommodation. Each case must be addressed on a case-by-case basis, and there is no one-size-fits-all solution when it comes to reasonable accommodations.  Moreover, a reasonable accommodation need not be provided if it would create an “undue hardship” for the employer.

Workplace Solution: Leave laws are complicated, as each leave law has its own intricacies, compounded when one considers the law’s interactions with other law. So whether you’re looking to makeover your current leave policies or augment your knowledge base, you can always contact your Seyfarth attorney to address any areas that need touching up.

Seyfarth Synopsis: With increased attention placed on transgender rights in recent years, employers should pay close attention to transgender discrimination and related issues in the workplace. This post offers some tips for some best practices to minimize risk in managing your workforce.

The Basics. Everyone in the workplace must be mindful of using accurate terminology when talking about gender and gender identity. Here are some common terms that are a good starting point for having respectful conversations.

  • Gender Identity: A person’s internal, deeply-felt sense of being male, female, something other or in-between.
  • Gender Expression: An individual’s external characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions that are perceived as masculine or feminine.
  • Transgender: An umbrella term that can describe people whose gender identity or gender expression differ from the sex they were assigned at birth.
  • Transsexual: A term most commonly used to refer to someone who transitions from one gender to another, often using medical intervention. The person may also identify as transgender.
  • Gender non-conforming: A person who has, or is perceived to have, gender characteristics or behaviors that do not conform to traditional or societal expectations.

What’s the Law?

Although in recent the EEOC has aggressively interpreted the sex-discrimination provision of Title VII to forbid discrimination against transgender employees, no federal statute expressly addresses employment discrimination based on gender identity.

California, on the other hand, has consistently been in the forefront of legislation bolstering transgender rights. In 2003, AB 196 clarified that FEHA discrimination claims based on “sex” include a person’s gender identity or gender-related appearance or behavior, effectively prohibiting employers from discriminating against applicants and employees because of their gender identity or expression. In 2011, the Gender Nondiscrimination Act directly added “gender identity” and “gender expression” as protected characteristics under FEHA, making it explicit that discrimination based on those characteristics is unlawful.

And the DFEH, earlier this year, provided guidance on transgender employee rights in the workplace (which we wrote about here). The new FEHA regulations that went into effect on April 1, 2016, added protections for transgender employees and applicants.

Most recently, Governor Jerry Brown signed into law AB 1732, which will require, beginning in March 2017, all businesses and public buildings to label their single-use restrooms as “all gender” and update signage (rather than having designated “men’s” and “women’s” restrooms). This law may affect your workplace and require updating your bathrooms in the next few months.

Best Practices. Here are some practices to build awareness about transgender issues and ensure a workplace that is inclusive of transgender employees.

  • Open Door Policy. Having an open door policy can promote dialogue about the successes and challenges of transgender employees in the workplace, convey to all employees that their voices are valued, and help employers develop best practices to retain and support a diverse workforce.
  • Respect privacy rights. Always remember that it is a personal choice whether to discuss openly or keep private one’s gender identity. Employers should not discuss or share an employee’s gender identity without the employee’s permission.
  • Provide employee training. Employers should provide diversity training including issues related to gender identity and expression. The training should emphasize that discrimination based on gender identity or gender expression is unlawful.
  • Celebrate diversity. A workplace culture should be inclusive of employees no matter their gender identity or expression. Consider establishing an affinity group that transgender and gender non-conforming employees and their allies are welcome (but not obligated) to join.
  • Review dress codes. Dress codes should be free of gender stereotypes. Policies that describe what men should wear versus what women should wear may be problematic, as they do not account for employees who are gender non-conforming. These policies should also be enforced in a non-discriminatory manner and allow each transgender individual to dress in accordance with that individual’s gender identity .

Workplace Solutions: Employers can take many steps to create inclusive workplaces and ensure compliance with the law. As always, Seyfarth attorneys are here to help employers evaluate their policies, practices, and procedures to minimize risk and avoid potential liability.

Seyfarth Synopsis: 2016 brought a wave of new protections for California employees and scant protection for employers. In this week’s post, we anticipate changes for 2017, in the ever-peculiar world of California employment law.

True to our tradition, we pause at the beginning of the New Year to reflect on last year’s California employment law changes, and consider possible trends. On the good ship Cal-Pecs, our contributors take turns keeping lookout in the crow’s nest. Where, we ask, is the wandering bark of employment law heading in California? What shoals loom ahead?

Despite the sea change that the election of Donald J. Trump represents, including expected changes favoring employers at the federal level, California remains (with apologies to Carey McWilliams) its own “island on the land.” An island of employees who know their rights. While lawmakers in Illinois, New York, New Jersey, and Massachusetts are doing whatever they can to catch up, all three branches of California’s government—legislative, executive, and judicial—continue to tack toward expanding employee rights.

To pick just a few examples: in 2016, California judges, legislators, and municipalities

  • extended the protections of pay equity laws beyond gender, to also prohibit unjustified disparities based on race and ethnicity,
  • shielded applicants from being haunted by juvenile conviction histories,
  • provided that all contracts with California employees will be governed by California law, unless the employee is represented by a lawyer,
  • increased the number of jurisdictions where minimum wage and paid sick time rights exceed state norms,
  • required employers, upon pain of penalty, to schedule work time for certain employees well in advance.

The above developments—which we’ve discussed in more detail here, here, and here—are part of a continuing trend in recent years that emphasizes equal pay, expansion of paid sick and small-necessity leave rights, prevention of ”wage theft,” and increasing work opportunities for historically underprivileged or disenfranchised groups such as immigrants and those with criminal histories.

Against this ever more employee-friendly backdrop, one can only wonder how California will grapple with the challenges of a modern economy, such as job eliminations (caused by more work automation), the increasingly “gig” nature of our state’s economy (resulting in more independent contractors and fewer employees), and the impact of legalization of recreational marijuana (employees can’t be impaired in the workplace, but attempts to limit non-work time use could implicate employee privacy, among other things). One particularly bold effort came in 2016: proposed bill AB 1727 would have given independent contractors the right to organize and negotiate with work providers through “group activities” such as withholding work, boycotting, or critiquing labor practices. That effort died in the Assembly Judiciary Committee. But hear this fearless prediction: we will hear of this again. And we can expect other bold efforts to empower the growing numbers of gig economy workers.

Meanwhile, we anticipate answers on the following workplace issues now pending before the California Supreme Court:

  • Which “employee” test determines whether a class should be certified to determine whether a group independent contractors was misclassified? The IWC definition of “employee” (as construed in Martinez v. Combs, 49 Cal. 4th 35 (2020), or the common law test set forth in S.G. Borello & Sons, Inc., 48 Cal. 3d 341 (1989)? [Dynamex Operations West, Inc., v. Superior Court, S222732]
  • What does it mean that a California employer is to provide “one’s day rest in seven”? [Mendoza v. Nordstrom, S224611]
  • Does the federal de minimis doctrine apply to claims for unpaid wages under California Labor Code Sections 510, 1194 and 1997 (minimum wage and overtime)? [Troester v. Starbucks Corp., S234969]
  • What is the correct way to calculate the rate of overtime pay when a non-exempt employee receives a flat sum bonus? [Alvarado v. Dart Container Corp of California, S232607].

If we can take any guidance from the Supreme Court’s latest wage-hour decision (Augustus v. ABM Security, rewriting the law on required rest breaks [see links to our OMM and prior post on the case here]), the results in the above cases will continue the tide of worker rights that will swamp more than a few employer boats, making management of California employees even more complicated, and increasing the risks of employers incurring inadvertent violations.

As in past years, we invite you to contact us with any comments, suggestions, or disagreements you may have regarding any of our posts, or if you would like to be a guest author.

We look forward to keeping you apprised of continuing ebbs and flows in California employment law during the year to come.

Dashing through this holiday week of 2016, we wish you all peace, joy, and a renewed spirit with which to face the challenges sure to arise during the coming year.

Next week in this space, we’ll take a look back at the most significant Cal-peculiar employment law developments of the past year, and assess the winter wonderland going into 2017.

Happy New Year!

Edited by Coby M. Turner.

Seyfarth Synopsis: In what many employers will see as a “break” from workplace reality, the Supreme Court, in Augustus v. ABM Security Services, Inc., announced that certain “on call” rest periods do not comply with the California Labor Code and Wage Orders. The decision presents significant practical challenges for employers in industries where employees must respond to exigent circumstances.

On December 23, 2016, the California Supreme Court issued its long-anticipated decision in Augustus v. ABM Security Services, Inc., affirming a $90 million judgment for the plaintiff class of security guards on their rest break claim. The Supreme Court found that the security guards’ rest breaks did not comply with the California Labor Code and Wage Orders, because the guards had to carry radios or pagers during their rest breaks and had to respond if required.

The Supreme Court took a very restrictive view of California’s rest break requirements, concluding that “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest breaks.” Thus, in the Supreme Court’s view, an employers may not require employees to remain on call—“at the ready and capable of being summoned to action”—during rest breaks.

See our One Minute Memo for more details on the decision and thoughts on the implications of this case for California employers. The Augustus decision presents significant practical challenges for employers, especially in industries in which employees must be able to respond to exigent circumstances.

Workplace Solution:

The holding that “on call” rest periods are not legally permissible should prompt employers to evaluate their rest-break practices. In industries where employees must remain on call during rest periods, employers should consider seeking an exemption from the Division of Labor Standards Enforcement. Lawyers in the Seyfarth California Workplace Solutions group can assist with other suggestions for responding to this decision.

Seyfarth Synopsis: New legislation effective 2017 will expand California workers’ compensation coverage by requiring coverage for certain high-level individuals unless they affirmatively opt out and waive coverage, thereby reversing the prior rule by which those individuals, to get coverage, had to opt in. 

As a general rule, California employers must provide employees with workers’ compensation insurance coverage for work-related and industrial injuries and illnesses. Until now, the definition of “employee” has included paid corporate officers and directors, but has excluded corporate officers and directors who are the sole shareholders and has excluded working members of a partnership or limited liability company (“LLC”). These folks were not considered employees unless they “opted in” to workers’ compensation coverage.

Comes now AB 2883, signed into law by Gov. Jerry Brown on August 26, 2016, which will amend Labor Code sections 3351 and 3352 to alter the coverage rules for workers’ compensation coverage. As of January 1, 2017, certain officers, directors, and owners of companies will be covered by workers’ compensation unless they affirmatively “opt out.” Specifically, all officers and members of boards of directors who work for a corporation for pay will be covered under workers’ compensation unless the individual (1) owns at least 15% of the issued and outstanding stock of the corporation and (2) executes a sworn waiver of rights under the Labor Code stating that he or she is qualified for the exemption. In addition, working members of a partnership or LLC receiving partnership or LLC wages will be covered employees unless they qualify as (1) a general partner of a partnership or a managing member of a LLC and (2) sign a waiver of the type just mentioned.

These amendments aim to keep employers from giving their employees sham titles or small ownership shares to avoid covering them under workers’ compensation.

AB 2883 also amends Labor Code Section 3352 to provide that if a signed waiver is effective upon the date of receipt and acceptance by the insurance carrier. Note, the provisions of AB 2883 apply to all in-force policies as of January 1, 2017, and unless a signed waiver is received and accepted by the insurance carrier, any individual who had been exempted from coverage under the workers’ compensation policy will need to be added to the coverage until a waiver is received and accepted by the insurer.

Sample Waiver Forms prepared by the State of California Department of Insurance appear at: http://www.insurance.ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin-notices-commiss-opinion/upload/NoticeAB2883.pdf

By “opting out,” any working owner waives rights to three particular benefits:

(a) Potential lifetime medical coverage for the industrial injury. This coverage can be significant if the person leaves the company by retirement or otherwise.

(b) Rights to permanent disability, which can be significant for a serious injury with residuals.

(c) Temporary disability to cover any wage loss. (Companies, in the alternative, may consider short and long-term disability benefits for injuries that may last longer than the time provided by state disability coverage.)

Workplace Solution: With new laws being enacted continuously in California, we understand the struggle to keep up with developments. We have a team of experts focusing exclusively on workers’ compensation issues and they are here to help.

Seyfarth Synopsis: On November 8, 2016, San Jose voters approved the most recent local effort to dictate employment scheduling practices. Beginning in March 2017, San Jose employers must offer existing part-time employees additional work hours before hiring any temporary, part-time, or new worker. Violations of the ordinance can trigger city fines and private law suits.

Temporary, part-time, and contract employees are important segments of the economy, particularly around the holidays. Retailers and logistics companies often rely on these workers to meet customers’ holiday wishes. And outside of the holidays, temporary and part-time employees provide important scheduling flexibility in an increasingly on-demand economy. The new year, however, will bring new restrictions on the ability of San Jose employers to use these important staffing tools.

Ok, so what do I need to know?  On November 8, 2016, San Jose voters approved Ballot Measure E, called the “Opportunity to Work Ordinance,” which requires an employer to offer part-time employees additional hours before the employer hires any new or temporary employees. Sponsored by a coalition of labor unions, the new ordinance limits employers’ ability to bring on new workers by forcing them to first offer existing “employees” the opportunity to work the additional hours. The ordinance also saddles employers with new record retention and notice requirements.

The restrictions will take effect on March 8, 2017 and, as covered here, continue a trend seen in other California cities, such as San Francisco, of local regulation of employers’ scheduling and hiring practices.

What if I employ only two people in San Jose? You still may be covered. The ordinance covers employers if they employ more than 35 employees and are subject to San Jose’s business tax. But employers can be covered even if they employ 35 or fewer employees in San Jose. For chain businesses, the ordinance counts every employee of the business, whether or not located in San Jose. For franchisees, the ordinance counts all employees of the franchisee, again, without regard for where the employees work.

The ordinance also broadly defines “employee.” Companies “employ” an individual if they exercise direct or indirect control over the individual’s wages, hours, or working conditions. For an employee to fall under the ordinance, the employee must have worked two hours within the last calendar week or be entitled to California’s minimum wage.

How can I comply? The short answer is that it is not entirely clear. We know that the ordinance:

  • requires employers to offer qualifying employees the extra hours before looking to temporary labor solutions (obviously),
  • requires employers to post notice to their employees about their rights under the new ordinance,
  • requires employers to “use a transparent and non-discriminatory processes” to distribute hours among existing employees,
  • only requires employers to offer additional hours to employees who “in the employer’s good faith and reasonable judgment, have the skills and experience to perform the work,” and
  • stops short of requiring employers to pay existing employees overtime.

Employers need not offer additional hours to employees if those hours would entitle the employee to a premium rate of pay.

Aside from these guidelines, however, the ordinance provides no additional detail on how employers must distribute hours among existing employees or when an employer can send work to a contractor or temporary staffing company. For more guidance, we must wait on the City or the courts. The ordinance grants the City authority to issue guidelines and rules, as well as to make non-substantive changes to the ordinance itself.

Is there anything else I need to do? Yes, and you may need another file cabinet. In addition to its scheduling component, the ordinance burdens employers with record retention and notice requirements. Employers must retain records for new hires that show the employer’s efforts to first offer the additional work to existing part-time employees. Employers must also preserve employee work schedules and “any other records the City requires for employers to demonstrate compliance with the ordinance.” All of these records must be maintained for four years. Failure to comply will create a presumption that the employee’s account as to scheduling practices is accurate.

Further, the ordinance requires employers to display a poster outlining the rights created by the ordinance.  The City’s Office of Equality Assurance will publish a bulletin outlining the required notice, but has not done so yet.

What are the consequences if I stick to my old scheduling practices? Ignoring the ordinance could result in significant liability. Although the ordinance exempts employers for their first violation, the ordinance authorizes the City to issue administrative fines up to $50 per violation and to seek civil penalties in court for noncompliance.

More alarming yet, the ordinance authorizes private actions. Any person not offered work under the ordinance can bring a private suit in court. If successful, the individual would be entitled to lost wages, penalties, and attorneys’ fees.

The ordinance also adopts the San Jose minimum wage law’s employee-friendly retaliation language.  Employees who claim they suffered an adverse employment action within 90 days of complaining about a violation of the ordinance will enjoy a rebuttable presumption that retaliation has occurred.

What if I have a collective bargaining agreement or just can’t comply? Perhaps as a nod to its sponsors, the ordinance provides a carve-out for CBA scheduling provisions. But to invoke the carve-out, the CBA must explicitly waive the ordinance in clear and unambiguous terms.

The City has the authority to exempt businesses from complying with the ordinance where the business works in good faith to comply but compliance is impracticable, impossible, or futile. The City has yet, however, to outline the procedures for requesting this exemption.

Stay tuned. The ordinance takes effect on March 8, 2017. Be sure to check this site in the coming weeks for updates on the City’s plans for rolling out the ordinance and any guidelines it might issue to help clarify the burden San Jose employers must bear in the new year.

Workplace Solutions. Compliance with new city ordinances can be tricky, especially since they are often unknown to employers. Knowledge is the first step. Compliance efforts are the next. If you would like assistance with ensuring compliance with this new ordinance, please contact the authors or another attorney from Seyfarth’s Labor and Employment Group.

Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. We offer here some tips on how to comply.

What Is This Letter and What Do I Do About It?

Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response?

How and when a California employer responds to these requests can have legal consequences. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests.

The proper response depends, first, on what the employee is asking to inspect. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. See below for details.

Labor Code § 1198.5

Section 1198.5 says that employees (and former employees) have the right to inspect personnel records maintained by the employer “related to the employee’s performance or to any grievance concerning the employee.” Employers must allow inspection or copying within thirty (30) days of the request, which can be made by the employee or their representative (often an attorney). That time period can be extended by five (5) days by mutual agreement.

Covered documents: Under the terms of the statute, it appears that documents such as performance reviews, commendation letters, disciplinary notices (“write-ups”), corrective action plans, and complaints about the employee would likely be covered.

The language in Section in 1198.5 is broad; it uses the terms “related to” and “concerning.” As a result, determining exactly what other documents might be covered can be a challenge. But the Labor Commissioner has issued some guidance on its website on what might be included in a “personnel file,” including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. So the overall scope of the statute still remains an open-ended question.

Nevertheless, the statute excludes certain files. For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file.

There are also situations when the statute does not apply. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery.

What happens if I forget to produce records in time? If the employer does not permit the inspection or copying of these records in time, the employee may bring an action to obtain a court order (injunction) for the employer to comply with the statute. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys’ fees and costs for bringing the action. And failure to comply is a criminal infraction. Ouch!

Labor Code § 226

Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. The employer must provide these wage statements at the time employees are paid or semi-monthly. The specific information required and the entire text of the statute can be found here.

Covered documents: The scope of this one is easier than Section 1198.5. In addition to requiring itemized wage statements, this section also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days.

What happens if I forget to produce records in time? Section 226 has remedies similar to those available under Section 1198.5. Section 226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys’ fees for bringing the lawsuit. Violation of the statute is also a criminal infraction. But unlike Section 1198.5, there is no exception for pending litigation. Yikes!

Labor Code § 432

Section 432 applies to any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment. Upon request, the employer must provide those documents. Fortunately, this statute is simpler than the others. There is no timeline for production and there is no private right of action to enforce compliance.

But that does not mean that employers should ignore requests under this statute. As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). More importantly, failure to comply with such a request is a misdemeanor. And there is also no exception for pending litigation. Wow!

Covered documents: As mentioned, Section 432 covers any document the employee signed related to “obtaining” or “holding” employment. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.).

Workplace Solutions

Employers often wonder if they have to produce “every” record about an employee in response to these requests. As the statutes indicate, the answer is “no”— only documents that fall within the categories requested need to be produced. Employers must also remember to protect other important rights. Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. As a result, responding to personnel file requests often requires a case-by-case approach.

If you would like assistance in ensuring your company’s compliance with a personnel file request, or if you have any questions raised in this post, then please do not hesitate to contact the author or any other member of Seyfarth’s Labor and Employment Group.

Edited by Coby M. Turner.

Seyfarth Synopsis: Social media information—pictures, status updates, location markers, “likes,” groups, and associated friends, all from the owner’s perspective and documented in real time—can be a  goldmine of information to defend employment lawsuits. Read on for thoughts on how to extract and refine this information, and what limits to observe in using it.

Social media and discovery is an area rife with potential drama: pictures of a plaintiff vacationing in Hawaii after he’s called in sick? Yes, please! How and should we access such juicy information?

Litigation-related discovery of social media content is generally permissible. The main problem is that—both in formal discovery and in other forms of fact-finding—there isn’t a complete picture on how far one can go to obtain it. Below are some tips to help employers stay in the friend-zone while using social media to their advantage in litigation.

Go Narrow! (At Least At First)

In a frequently cited case on the matter, Mailhoit v. Home Depot U.S.A. (C.D. Cal. 2012), the court debated how a defendant could use social media in litigation, and ultimately decided that there is a limited right to discover a party’s social media content. Mailhoit allowed an employer to make “particularized requests”—in that case all social media communications between the plaintiff and her current or former co-workers in any way referring to the lawsuit. But Mailhot said the employer was not entitled to look through the entirety of the plaintiff’s social media information in the hope of “concocting some inference about her state of mind,” and refused to permit other proposed, broader, discovery requests.

But even this limited discovery can be important: once relevance is shown, courts may be more likely to permit additional discovery. Mailhoit suggested that if social media posts are relevant, additional discovery may proceed.

At least one non-California court has already taken this step. In Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. La. 2015), the court ordered an employee to produce an unredacted copy of his entire Facebook page, even though the employee protested that he had deactivated his account. The employer was even entitled to analyze his Facebook messages, which potentially contained a lot of useful information! If a California court can be persuaded that social media communications in some way relate to claims or defenses in the litigation, then they, too, may yield to discovery.

Private vs. Public: Gimme, Gimme!

We know that in California, since 2013, we cannot force employees or job applicants to turn over social media passwords. The California legislation on this point reflects a public policy that recognizes our unique constitutional right of privacy.

But what about publicly available information? California courts agree that there can be no expectation of privacy in publicly posted information on social media websites. See Moreno v. Hanford Sentinel, Inc. (Cal. App. 2009).

This means if the privacy setting on an employee’s Facebook posts is “Public”(i.e., available to anyone on or off Facebook), then anything posted is fair game for discovery. The same goes for publicly available Twitter tweets, publicly available Instagram posts, publicly available LinkedIn info, MySpace page information, etc. Presumably, if someone publicly posts elsewhere (e.g., Reddit, 4Chan, personal blogs), with a link it to the poster’s identity, then those posts may also be accessed and used.

Save, Save, Save!

Social media, like life itself, is evanescent.  Publicly available, incredibly useful information can be here one day, gone the next. Do not rely on information staying up once it is up. To best preserve currently available information, screenshot the information, or print to .pdf. Then save and wait. It doesn’t get much better than seeing the face of a plaintiff when confronted with a photo he thought he had deleted. You know the one: featuring the plaintiff himself, bleary eyed and hoisting a beer, an hour before his scheduled work shift. Or the one showing him wearing stolen merchandise. Or the one showing him partying it up while supposedly suffering from “emotional distress.”

Fake-Friending and Professional Responsibility: Don’t Be a 🙁 

“Fake-friending” is when one creates a fake profile to add a person on Facebook or other social media with the aim of gaining full access to the person’s more limited profile. Rules of professional responsibility for lawyers discourage this practice—(the American Bar Association has recognized at least four areas of concern: (1) confidentiality, (2) truthfulness in statements to others, (3) responsibility regarding non-lawyer assistants, and (4) misconduct). Conducting covert research through fake-friending may also violate California Rules of Professional Conduct, such as Rule 2-100, which forbids “communication with a represented party.” Non-attorneys may be subject to similar ethical responsibilities.  So leave intentional fake-friending out of your litigation arsenal.

Nonetheless, it is not always clear what the limits of these rules mean in practice. For example, would it be OK to accept the help of a third party who has access to shared information (for example, the plaintiff’s co-worker, who has added the plaintiff as a friend online)?

The San Diego County Bar Association released an Opinion (2011-2), stating: represented “parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.” Specifically, the opinion states that if the motive is to obtain information about the litigation, then this conduct can violate Rule 2-100 and constitute deceptive conduct forbidden by the California Business and Professions Code.

Outside of California, other jurisdictions have found that it would be unethical even to ask a third person, whose name a hostile witness will not recognize, to obtain social media information, even if the person states only truthful information.

The Future of Social Media and Regulation: “It’s Complicated”

New apps, social media websites, and ways to share information emerge every day. Unfortunately, the law and public policy often lag behind advances in technology. In some states, we’re already seeing some peculiar stuff going on. In New York, courts have since 2013 held that some service via social media can satisfy due process. In one early case, Federal Trade Comm. v. PCCare247 Inc. (S.D.N.Y. Mar. 7, 2013), the court noted: “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” New York courts have also indicated that social media may be considered an effective means of providing notice to potential class members in class actions. See Mark v. Gawker Media, LLC (S.D.N.Y. 2016).

Workplace Solutions

If you find yourself in a pickle—“to like or not to like?”, “to friend or not to friend?”, “to snoop or not to snoop?”—remember that a friendly neighborhood Seyfarth attorney is just a poke away.

Edited by Coby M. Turner.

A thankful heart is not only the greatest virtue, but the parent of all the other virtues. ~Cicero

Dearest Reader,

We have much to be grateful for this year:

  • Generous, smart colleagues who contribute regularly to our blog—more than 50 posts so far in 2016!
  • The recent honor of being recognized as one of the Top 100 Legal Blogs in the country.
  • California legislators: the active group that keeps on giving us new and peculiar employment laws and amendments.

But our greatest gift—for which we are ever-thankful—is YOU, the loyal reader. Thank you for following our blogs, and for your thoughtful questions and contributions.

We’ve all noted the results of the November elections—both in California and nationally. Those results, together, seem likely to result in California employment law becoming even more “peculiar” than ever. While some will be more grateful than others for this trend, all should see it, we suggest, as validating our call to point out how California law differs from what folks face in America generally. Heck, there is even a Cal-exit secession initiative underway that, if it qualifies, will be on our ballot in 2018.

So the coming year should bring us no shortage of Cal-specific news to report, analyze, and deliver to you, on a more-or-less weekly basis.

Please continue to let us know how you think we’re doing. What would you like to read more of—or less of—in the coming year? How can we be more helpful to you? Our ears are open and we welcome your thoughts. You can contact an editor here.

Meanwhile, a very Happy Thanksgiving to you and yours.