What's New in Employment Law?

Flexible work arrangements are here to stay, and many California employers are looking for ways to give employees more control over their schedules. One common request? “Can I work from home for part of the day so I can avoid rush-hour traffic?”

Seems simple enough. But for employers with non-exempt employees, that request raises an important wage and hour question: If an employee starts the workday at home and then drives to the office, is that midday commute now paid time?

According to a recent U.S. Department of Labor (DOL) opinion letter, the answer is “not necessarily.”

The good news? Under the federal Fair Labor Standards Act (FLSA), a midday commute may remain unpaid. The catch? The employee—not the employer—has to be driving the arrangement.

For California employers, however, there’s an even bigger catch: the DOL interprets federal law, not California law. California wage and hour rules are often more protective of employees, so this opinion letter is helpful guidance—but it is not the last word.

Why This Matters in California

Under the FLSA, ordinary home-to-work commuting generally is not compensable.

The concern arises because of the “continuous workday” doctrine. Once an employee begins performing principal work activities, time between the first and last principal activity of the day may become compensable.

That’s why many employers have hesitated to approve split-day schedules for non-exempt employees. If someone works from home for two hours and then drives to the office, has the workday already started?

The DOL says that, under the facts presented, the answer is “no.”

California employers, however, should remember that California courts and the Labor Commissioner often take a broader view of what constitutes “hours worked,” particularly where the employer exercises control over an employee’s time.

The Facts Made All the Difference

The opinion letter considered three different situations.

One employee wanted to work from home in the morning, drive to the office after traffic eased, and leave before the evening commute.

Another wanted to complete additional project work from home before the regular workday instead of coming into the office early.

A third employee who relied on public transportation wanted to finish work from home after leaving the office so he wouldn’t miss the last bus.

Different facts. Same conclusion.

In every situation:

• The employee requested the arrangement.
• The employee decided when to commute.
• The employee performed no work during the drive.
• The employer did not direct or control the timing of the travel.

Those facts were critical to the DOL’s conclusion that the travel remained an ordinary commute.

The Real Lesson Isn’t About the Commute

The biggest takeaway isn’t about driving. It’s about who controls the schedule.

The DOL repeatedly emphasized that these arrangements worked because the employees initiated them. The employer wasn’t directing employees to split the workday, wasn’t deciding when they should travel, and wasn’t assigning work during the commute.

In other words, the commute stayed an ordinary commute because the employee chose it.

For California employers, that distinction is especially important. California wage and hour law frequently turns on employer control. The more the employer dictates when, where, or how work is performed, the greater the risk that travel time could be viewed as compensable.

If a supervisor says, “I’d like you to work from home this morning and come into the office around 11,” you’ve moved away from an employee-driven arrangement and closer to employer-directed travel. That creates a different—and potentially more risky—analysis under California law.

“Off Duty” Needs to Mean Off Duty

The opinion letter also depended on employees being completely relieved of duty during the commute.

That means:

• No conference calls.
• No responding to emails.
• No Teams or Slack messages.
• No expectation that the employee is available if something comes up.

In California, employers should be particularly careful about this point. Even seemingly minor work performed during a commute can create compensable time and may trigger other wage and hour obligations, including overtime, meal period, or rest break issues depending on the circumstances.

Policies are important, but manager behavior matters even more. A handbook that says employees are off duty during the commute won’t help if supervisors routinely text employees while they’re driving.

Practical Takeaways for California Employers

This opinion letter offers helpful insight, but California employers should treat it as guidance, not a green light.

If you’re considering allowing split-day schedules for non-exempt employees:

• Require employees to request the arrangement voluntarily.
• Document that the employee, not management, initiated the schedule.
• Make clear that employees are completely relieved of duty during the commute.
• Train supervisors not to call, text, email, or otherwise assign work during travel.
• Evaluate each arrangement under both federal and California law before implementing it as a standard practice.
• Review your telework and flexible scheduling policies to ensure they don’t unintentionally create employer-directed travel.

Bottom Line

The DOL’s opinion letter is encouraging for employers looking to offer more flexibility, but California employers shouldn’t assume the analysis ends there.

The federal takeaway is straightforward: an employee-requested midday commute may remain unpaid if the employee controls the arrangement and is genuinely off duty during the drive.

In California, however, the question often is whether the employer exercised control over the employee’s time. That means the same facts that persuaded the DOL may not always resolve the issue under California law.

Before rolling out a split-day telework policy for non-exempt employees, make sure the arrangement is carefully structured and evaluated under California’s wage and hour standards, not just the FLSA. As is so often the case in California employment law, the details make all the difference.

The post The DOL Says a Midday Commute Can Still Be Unpaid—But California Employers Should Read the Fine Print first appeared on Shaw Law Group.

      

The U.S. Department of Labor has released an updated “Your Rights Under USERRA” poster. If your business displays employment law posters, now is a good time to make sure your USERRA notice is up to date.

USERRA (the Uniformed Services Employment and Reemployment Rights Act) protects the employment rights of individuals who serve in the military, including members of the National Guard and Reserve. The law also prohibits discrimination against employees because of their military service or obligations.

Who Needs to Post the Notice?

All employers are required to provide employees with notice of their rights under USERRA. The notice may be displayed in the workplace where other required employment posters are located or distributed electronically if that is how your organization typically communicates workplace notices to employees.

What You Need to Do

To help ensure your business remains compliant, take the following steps:

• Download the updated July 2026 USERRA poster from the U.S. Department of Labor here [add link to: https://www.dol.gov/sites/dolgov/files/VETS/files/USERRA-Poster.pdf.
• For physical workplaces: Print and post the new notice in a conspicuous location alongside your other required labor law posters.
• For remote or hybrid employees: Distribute the notice electronically through email, your employee intranet, HR portal, or another regularly used communication method.

Why This Matters

Keeping your required workplace notices current is an important part of maintaining compliance with federal employment laws. Updating your USERRA poster helps ensure employees understand their rights and demonstrates your commitment to meeting your legal obligations.

Taking just a few minutes to replace an outdated notice can help avoid unnecessary compliance issues and keep your workplace up to date.

If you have questions about the new USERRA notice, workplace posting requirements, or whether your business is displaying all required federal and state employment posters, our team is here to help. Contact us for assistance with reviewing your postings and HR compliance practices.

The post New USERRA Poster Released – Employers Should Update Their Workplace Notices first appeared on Shaw Law Group.

      

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.