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Past Events – January 2008

    2008 Legal Update: What's New in Employment Law
    Raymond H. Hixson, Jr., Esq.
    Renée R. Deming, Esq.
    Heller Ehrman, LLP

    At the BAHREC meeting on January 16, Ray Hixson and Renée Deming of Heller Ehrman gave the group an overview of the newest legislation affecting employers in 2008.

    I always find these meetings both stimulating and frustrating. It is interesting and challenging to try to keep abreast of everything going on in Sacramento and Washington - not to mention globally. The more legislation, the more job security, right? But my enthusiasm for learning this new stuff, some of which makes no compelling business sense, as far as I can see, is offset by my sudden urge to either put a bullet to my head, or at least change professions.

    Here's an even briefer overview of the stuff that was covered. Please note that this was my personal take-away, and should in no way be construed as legal advice. A copy of Renée and Ray's presentation is being posted on the Members-Only page on the BAHREC website:


    Wage and Hour Laws

    • Changes to Computer Professional exemptions - depends on whether these employees are in the IT department (Admin exemption test), or supporting specific departments (Professional exemption test)
      • They also covered changes to the related compensation requirements and how this needs to be calculated
    • The importance of enforcing breaks and meal breaks (Kenneth Cole decision)
    • Differentiating "expected wages" from other types of compensation
    • The "boundaryless workplace

    Leaves of Absence

    • New California Spousal military leave - update your LOA policies.
    • Make sure you advise employees when they are on a leave that is being applied to their FMLA within 2 days of request


    • Best to engage in an "interactive process" in response to disability issues.

    Arbitration Agreements

    • Should be part of a signed offer letter if you are going to use them.
    • If you choose to use them, it is recommended that they are a stand-alone document
    • Must not be unfair to the employee

    Harassment Training

    • New documentation requirements - especially for web-based training
    • Must enable supervisor to contact a trainer who can answer questions within 2 business days of when question is asked

    Discrimination Claims

    • Casual comments in the workplace can be used to affirm an allegation of age discrimination
    • Violation of Company Policy doesn't negate Wrongful termination claim under FEHA - especially if the policy isn't administered consistently

    Release Agreements

    • USERRA rights cannot be waived
    • May not be possible to get a release for violation of FMLA rights

    New guidelines on "No-Hire" Agreements

    • A "no hire" contract between a company and a subcontractor held to be unenforceable as an unlawful restrain on trade - not sure about how this affects temp agencies

    IRC Section 409A

    • Covered new definitions of what is considered "deferred compensation"
    • This was probably the most complex topic of the evening and the presentation was limited by time restraints. Renée distributed a copy of "The Section 409A Survival Guide." This may be a stand-alone topic for another meeting.