What's New in Employment Law?

A new labor relations director gets a Friday afternoon call. An employee has just walked out after an argument with her supervisor. Three coworkers left with her.

A veteran labor relations director gets the same call.

The newcomer is wondering what to do next. The veteran already is asking whether the supervisor documented the incident, the union steward spoke with the employees before HR did, and the dispute involved protected concerted activity.

Most labor relations problems don’t arise because someone misunderstood labor law. They arise because a handful of fundamental operational practices quietly stop happening. These are the habits every new labor relations professional should develop, and the ones experienced professionals should make sure they haven’t stopped doing.

Discipline Consistently and Document Immediately

Inconsistent discipline is one of the most common drivers of grievances, unfair labor practice charges, and retaliation claims. Two employees commit the same infraction. One receives a written warning. The other receives verbal counseling. Whether the difference was caused by timing, a different supervisor, or simple oversight, it quickly becomes the focus of a grievance or charge.

Documentation prepared on the day of an incident carries a level of credibility that documentation created weeks or months later rarely achieves. New labor relations professionals need to develop the discipline of documenting events immediately. Veterans know better—but day-of documentation has a way of slipping into tomorrow’s to-do list, and eventually becomes an attorney’s attempt to reconstruct events months later.

Know the Collective Bargaining Agreement and Ensure the Handbook Doesn’t Contradict It

The employee handbook and the collective bargaining agreement (“CBA”) should work together. Too often, they don’t.

In most organizations, handbooks are updated on one schedule while CBAs are renegotiated on another. Over time, inconsistencies develop regarding discipline, scheduling, leave, and other terms and conditions of employment. Those inconsistencies become grievances, complicate labor-management discussions, and undermine the employer’s credibility.

For a newcomer, reading the CBA cover to cover is not optional. For a veteran, the better question is: When was the last time you reviewed the CBA and the handbook side by side? Every handbook review should include a comparison to the CBA, and every renegotiated CBA should trigger a review of the handbook to ensure the two documents remain aligned.

Treat the Union Relationship as a Partnership

Employers that treat the union as an adversary often find themselves negotiating every interaction. Employers that view the union as a partner are more likely to resolve issues before they become disputes.

That doesn’t mean abandoning management’s rights or avoiding difficult conversations. It means communicating early, involving union representatives appropriately, and resolving problems informally whenever possible. It means building trust before conflict arises rather than trying to create it in the middle of a dispute.

New labor relations professionals often assume the relationship should be adversarial. Experienced professionals know that collaboration produces better long-term results. But even strong relationships can gradually become transactional if they are not actively maintained.

Reinforce Workplace Values Every Day Through Leaders

Most employers train leaders on compliance once a year. Effective employers reinforce workplace expectations every day.

Leaders are the daily ambassadors of organizational culture. Culture is shaped in the hallway conversation, the shift huddle, the coaching discussion, and the disciplinary meeting, not during an annual training session.

New labor relations professionals should understand this concept from the beginning. Veterans already know it. The real question is whether the organization is still reinforcing expectations consistently, or if daily leadership quietly has been replaced by annual compliance training.

These four practices are not complicated. They are not legal doctrines. They are operational habits.

New labor relations professionals are learning to build them. Experienced professionals are responsible for sustaining them.

Either way, these practices help prevent grievances, reduce conflict, and keep legal disputes from arising in the first place.

The post What New Labor Relations Professionals Should Know (And Veterans Should Remember) first appeared on Shaw Law Group.

      

If your organization uses employment arbitration agreements, here’s one more reason to dust them off.

Governor Newsom recently signed AB 2155, which takes effect on January 1, 2027. The new law doesn’t ban arbitration or make arbitration agreements obsolete. Instead, it continues California’s effort to align its arbitration law with the Federal Arbitration Act (FAA) and clarifies that if an agreement isn’t enforceable under the FAA, it generally won’t be enforceable under California law either.

So, is this a game-changing new law? Probably not. Is it a good reminder that arbitration agreements shouldn’t sit in a file cabinet for ten years without anyone looking at them? Absolutely.

If there’s one thing we’ve learned over the past decade, it’s that arbitration law never seems to sit still. Between court decisions, new legislation, and changes in federal law, what worked five years ago may not be the best approach today.

We’ve talked to plenty of employers who say, “We have an arbitration agreement.” When we ask when it was last reviewed, the answer is often, “I’m not sure.” That’s a problem.

An arbitration agreement only helps you if it’s enforceable when someone files a claim. If it’s outdated or contains provisions that no longer comply with current law, you may find yourself litigating in court anyway.

That doesn’t mean employers should abandon arbitration. For many organizations, arbitration continues to make good business sense. It can provide a faster, more private, and often less expensive way to resolve employment disputes. But those benefits depend on having a well-drafted agreement that reflects current law.

That’s why we see AB 2155 less as a major shift and more as a timely reminder.

If you haven’t reviewed your arbitration agreement in several years, now is a good time. Make sure it reflects current California and federal law. Make sure it still fits your organization. And don’t assume that because it worked when you adopted it, it will work if you need to enforce it tomorrow.

The Bottom Line

AB 2155 isn’t a reason to panic. It is, however, a good reason to pull out your arbitration agreement, have it reviewed, and make any updates that are needed before the next dispute comes along.

The post California Has a New Arbitration Law. Is It Time to Revisit Your Agreement? first appeared on Shaw Law Group.

      

One of the most difficult questions California employers face is whether an employee’s troubling behavior should be treated as misconduct or as a possible sign of a disability.

Respond too quickly with discipline, and an employer may overlook its obligations under the Fair Employment and Housing Act (FEHA). Wait too long to address serious misconduct, and the employer risks disrupting the workplace, compromising safety, and undermining accountability.

A recent California Court of Appeal decision illustrates just how difficult this balance can be and offers several important lessons for California employers.

The Case Was Not Really About Misconduct

At first glance, the case appeared to center on an employee’s behavior. But the court’s analysis focused on a different question: What did the employer know, and when did it know it?

Under the FEHA, an employer’s obligation to engage in the interactive process generally arises when it knows—or reasonably should know—that an employee may have a disability requiring accommodation.

That does not mean every difficult employee has a disability.

Nor does it mean every unusual behavior requires an accommodation.

Instead, the employer must evaluate the information available at the time and determine whether there are sufficient facts to suggest a medical or mental health condition may be affecting the employee’s conduct.

Notice Does Not Always Come from a Doctor

Many employers assume they have no accommodation obligations until an employee presents medical documentation or specifically requests an accommodation. But California law is not that simple.

Notice may arise from many different sources, including:

• Statements made by the employee
• Information provided by family members
• Prior medical disclosures
• Observable changes in behavior
• Workplace conversations that reasonably suggest a medical condition may be involved

The court’s decision serves as a reminder that employers should not focus solely on whether the employee used the words “reasonable accommodation.”

The real question is whether the employer had enough information to recognize that further inquiry might be appropriate.

Misconduct Can Still Be Misconduct

One point that is often misunderstood is that the FEHA does not require employers to excuse workplace misconduct simply because a disability may exist.

Employees remain responsible for complying with legitimate workplace rules, performing the essential functions of their jobs, and maintaining appropriate workplace conduct.

If an employee violates workplace policies, discipline may still be appropriate.

The mistake employers sometimes make is assuming that misconduct automatically ends the disability analysis. But that’s not correct.

When the circumstances suggest the behavior may be connected to a disability, employers should consider whether additional inquiry or the interactive process is warranted before making a final employment decision.

The Interactive Process is Not Automatic

The court did not suggest that employers must initiate the interactive process every time an employee behaves poorly.

Instead, employers should evaluate the facts objectively.

Questions worth asking include:

• Is this behavior new or out of character?
• Has the employee disclosed a medical condition in the past?
• Has the employee—or someone acting on the employee’s behalf—raised health concerns?
• Is there information suggesting the behavior may have a medical explanation?
• Have we gathered enough information before making a significant employment decision?

The answers will differ in every case, which is why individualized assessment remains one of the FEHA’s central principles.

Documentation Often Determines the Outcome

Cases involving behavioral issues frequently turn on documentation.

Employers should document objective observations rather than conclusions.

For example, instead of writing that an employee was “unstable,” document the specific conduct that occurred, when it occurred, who observed it, and how it affected the workplace.

Similarly, document conversations with the employee, information received about possible medical issues, the steps taken to evaluate the situation, and the reasons supporting the ultimate decision.

Objective documentation demonstrates thoughtful decision-making and often becomes critical evidence if litigation follows.

Train Supervisors to Recognize When to Pause

Supervisors are usually the first people to observe changes in employee behavior.

They are not expected to diagnose medical conditions—and they should never attempt to do so.

Their responsibility is much simpler: Recognize when unusual circumstances may require HR involvement before significant disciplinary action is taken.

A supervisor who immediately contacts HR after observing concerning behavior may prevent an expensive legal dispute months or years later.

Bottom Line

The recent decision reinforces an important principle: employers do not have to choose between enforcing workplace standards and complying with disability accommodation laws. They must do both.

The key is recognizing when employee misconduct may also raise questions about a potential disability and taking the time to evaluate those questions before making significant employment decisions.

For California employers, the safest approach is neither to assume every behavioral problem is a disability nor to dismiss the possibility too quickly. A careful, individualized analysis remains the best way to reduce legal risk while maintaining a safe, productive, and accountable workplace.

Want to Learn More?

Managing leaves of absence and reasonable accommodations is one of the most challenging areas of employment law, especially as legal requirements continue to evolve. If you’d like a deeper dive into advanced leave management strategies, join us for our Effectively Managing Leaves of Absence and Reasonable Accommodations: Intensive Workshop (Advanced Topics). This interactive two-day program covers complex real-world scenarios, recent legal developments, and practical tools to help HR professionals and managers navigate even the most difficult situations.

Learn more and register here: Effectively Managing Leaves of Absence and Reasonable Accommodations: Intensive Workshop (Advanced Topics).

The post When Employee Misconduct Becomes a Disability Issue: Lessons from a Recent California Court of Appeal Decision first appeared on Shaw Law Group.

      

Many California employers devoted significant time and resources to complying with California’s workplace violence prevention law before it took effect on July 1, 2024, through SB 553. They drafted Workplace Violence Prevention Plans, trained employees, implemented reporting procedures, and created violent incident logs.

For many organizations, however, compliance effectively ended there.

That is understandable. Developing the initial program required a substantial investment of time and effort. But the law was never intended to be a one-time compliance exercise. A Workplace Violence Prevention Plan (WVPP) is designed to be a living document that evolves as workplaces, operations, and risks change. With Cal/OSHA expected to issue long-awaited workplace violence prevention regulations early this fall, employers should not wait for the regulations to begin evaluating their programs. Now is an ideal time to identify gaps, refresh training, and ensure that your plan reflects your current workplace before the next phase of compliance arrives.

Having a Plan is Only the Beginning

One of the biggest misconceptions is that SB 553 compliance begins and ends with having a written plan. In reality, the written plan is only one component of a much broader obligation.

If Cal/OSHA conducts an inspection following a complaint or workplace incident, the agency is unlikely to stop after reviewing the employer’s written plan. Investigators will want to know whether employees received the required training, whether workplace violence concerns were reported and investigated, whether identified hazards were corrected, and whether supervisors understand their responsibilities under the program. In other words, employers should expect Cal/OSHA to evaluate whether the plan is actually being implemented, not simply whether it exists.

Programs Naturally Drift Over Time

Nearly every workplace changes over the course of a year. Supervisors leave, new employees are hired, facilities are remodeled, job duties evolve, and business operations expand. As those changes occur, WVPPs often become outdated without anyone realizing it.
Common issues include stale training, out-of-date hazard assessments, overly complicated reporting procedures, and violent incident logs that no one has reviewed since the program was first implemented. None of these issues necessarily reflect a lack of commitment to workplace safety. More often, they simply demonstrate how quickly an organization’s day-to-day operations can outgrow its written procedures.

Take Another Look at Your Hazard Assessment

Perhaps the most valuable part of any WVPP is the hazard assessment. It is also one of the sections most likely to become outdated.
Employers periodically should consider whether anything has changed since they first completed the assessment. New locations, changes in staffing, increased interaction with the public, remote or hybrid work arrangements, new security concerns, or even a single workplace incident may justify revisiting the assessment. The goal is not simply to update paperwork but to ensure that the preventive measures still match the realities of the workplace.

Supervisors Make or Break the Program

Even the most carefully drafted WVPP cannot succeed if supervisors are uncertain about how to respond when concerns arise.
Supervisors are often the first to observe troubling behavior or receive reports from employees. They should understand how to recognize potential warning signs, document concerns appropriately, respond to employee reports, and involve Human Resources before a situation escalates. Regular refresher training can be just as important as the initial training employees received when the law first became effective.

Now is the Right Time for a Mid-Year Review

Many employers think about workplace violence prevention only when an inspection occurs or after a serious incident. By then, opportunities to strengthen the program may have already been missed.
This year’s review is particularly important because employers should soon receive additional guidance from Cal/OSHA. Although the anticipated regulations are expected to clarify and expand upon existing requirements, employers that regularly review and update their programs will be in a much better position to adapt than those whose plans have remained unchanged since they were first adopted.

The Bottom Line

California’s workplace violence prevention law was never intended to produce a binder that sits on a shelf. Employers that treat their program as an ongoing process—not a one-time compliance project—will be better prepared for the anticipated Cal/OSHA regulations, reduce legal risk, and create a safer workplace.
The most effective WVPPs are not simply well written—they are actively used, regularly updated, and consistently followed.

The post Is Your Workplace Violence Prevention Plan Ready for Cal/OSHA’s Next Move? first appeared on Shaw Law Group.

      

As we celebrate America’s 250th birthday this week, it’s hard not to think about how much has changed over the past two and a half centuries. The workplace certainly has.

The nation’s founders could never have imagined artificial intelligence, remote work, workplace violence prevention plans, pay transparency laws, social media investigations, or California’s ever-growing list of employment regulations. Today’s employers are navigating workplace issues that didn’t exist even a decade ago.

Yet the more employment law changes, the more I am reminded that the fundamentals of good leadership really don’t.

The employers who stay out of court are rarely those with the thickest employee handbook or the most complicated policies. Instead, they set clear expectations, communicate honestly, treat employees consistently, address problems early, document important decisions, and make fairness part of their workplace culture. These principles never go out of style.

That’s especially true in California, where employment law seems to change almost every legislative session. New statutes, court decisions, agency guidance, and local ordinances require employers to constantly update their policies and practices. Compliance is no longer something you check off once a year. It’s an ongoing process.

But compliance alone isn’t enough.

The best employers don’t just react to new laws. They anticipate change. They train their leaders before problems arise. They regularly review their policies, ask whether their practices still make sense, and look for opportunities to improve before a government agency, or a plaintiff’s attorney, points out the issue for them.

Over the past 250 years, our country has continually adapted as society has changed. Employment law has followed that same path. We’ve expanded workplace protections, addressed new technologies, responded to changing expectations, and developed new ways to balance the interests of employers and employees. That process isn’t over. It never will be.

The legal issues employers face 10 years from now will almost certainly look different from the ones we face today. New technologies will emerge. Workforce expectations will continue to evolve. Legislatures and courts will continue to respond.

The employers who will be most successful won’t necessarily be the ones who can predict every legal change. They’ll be the ones who have built workplaces grounded in fairness, consistency, accountability, and respect, principles that remain just as relevant today as they were generations ago.

As you celebrate Independence Day with family and friends, I hope you’ll also take a moment to appreciate the people who make your organization successful every day. Strong workplaces, like strong communities, don’t happen by accident. They are built through thoughtful leadership, shared responsibility, and a commitment to doing the right thing.

The Bottom Line

Employment law will continue to evolve, especially in California. But employers who focus on good leadership, fair treatment, consistent practices, and proactive compliance will always be better positioned to navigate whatever comes next.

The post America at 250: The Workplace Has Changed. Good Leadership Hasn’t. first appeared on Shaw Law Group.