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LIE DETECTOR TESTING OF EMPLOYEES

April 1, 2019

The right of an employer to conduct lie detector tests is controlled by the federal Employee Polygraph Protection Act of 1988 (“EPPA”) and by the California Labor Code. Since the EPPA generally imposes greater obligations on employers seeking to engage in polygraph testing than the California Labor Code, this Newsletter shall focus exclusively on the EPPA rules. The EPPA makes it unlawful for an employer to require, request, or suggest that any job applicant or employee submit to a lie detector test. However, security guards, employees with direct access to controlled substances, and employees of federal, state, and local governments, are exempt from the EPPA, and are subject to pre-employment polygraph testing. An employer may not discharge, discipline, discriminate against, or deny employment opportunities to, or threaten any job applicant or employee who refuses to take a lie detector test.

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THE U.S. FAMILY MEDICAL LEAVE ACT AND THE CALIFORNIA FAMILY RIGHTS ACT

April 1, 2019

The U.S. Family and Medical Leave Act of 1993 (“FMLA”) and the California Family Rights Act (“CFRA”) provide rules governing the rights of employees to take time off from work for family medical reasons. This Newsletter shall briefly discuss the employees’ rights under these laws. Covered Employers. Both FMLA and CFRA apply only to private employers with 50 or more employees and public agencies regardless of the number of employees.

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CALIFORNIA WORKPLACE VIOLENCE SAFETY ACT

April 1, 2019

California has enacted the Workplace Violence Safety Act (the “Act”) permitting an employer, whose employee has suffered unlawful violence or a credible threat of violence from any person, which can reasonably be construed to be carried out at the workplace, to obtain a temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence. Prior to this law, employers could not obtain a temporary restraining order or an injunction on behalf of an employee, and the employee was frequently reluctant to have his or her name attached to a restraining order.

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EMPLOYMENT REFERENCES

April 1, 2019

A common question faced by employers is whether to give a former employee a favorable letter of reference to assist the former employee in obtaining a new position. This issue is particularly difficult when the employee was not an outstanding employee or if the employee was terminated for cause.

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CALIFORNIA SUPREME COURT GRANTS EMPLOYEES THE RIGHT TO SUE FOR SEXUAL FAVORITISM

April 1, 2019

In a significant expansion of sexual harassment law in California, the California Supreme Court held, in Miller vs. Department of Corrections, et al, that any worker, male or female, has a claim for sexual harassment by showing that there was widespread sexual favoritism which created a hostile working environment, regardless of whether the employees who were granted favorable treatment willingly bestowed their sexual favors. Previously, a supervisor who granted favorable employment opportunities to an employee with whom the supervisor was having an affair did not commit sexual harassment toward other employees. Now, an employee can show sexual harassment even if his or her supervisor never asked for sexual favors or made inappropriate sexual advances.

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