New Laws on the Horizon! NOT Good News!

March 19, 2018

Well, here is more bad news for employers in the state of California. Hopefully many of these will not pass but it never ceases to amaze me on far these legislatures will go. Let’s keep our fingers crossed.

AB 2841 (Paid Sick Leave Expansion):  This bill would expand the current paid sick leave law by requiring employers to provide more paid sick leave to employees.  Under current law, employers must allow employees to accrue at least one hour of paid sick leave for every 30 hours worked (but may limit an employee’s use of sick leave to 3 days/24 hours per year) and may impose a carryover accrual cap of 6 days/48 hours.  Alternatively, an employer may provide at least 3 days/24 hours of paid sick leave “up front” to employees (rather than allowing them to accrue it over time) allow employees to take up to 5 days (40 hours) of paid sick leave per year (up from the current 3 days/24 hours) and to accrue up to 10 days (80 hours) of paid sick leave.  Under this bill, an employer who front loads paid sick leave would have to provide at least 5 days/40 hours up front.  An employer who allows employees to accrue paid sick leave but wishes to impose a cap on carryover and accrual of unused sick leave could not use a cap that is less than 10 days/80 hours.

AB 2069 (Employment Protection for Medical Marijuana Users):  This bill would amend the Fair Employment and Housing Act to make it an unlawful employment practice for an employer to take adverse action against an applicant or employee because of a positive drug test for marijuana (by a medical marijuana card holder) or because of one’s status as a medical marijuana card holder.  The bill makes clear that an employer may still discipline an employee for being under the influence while working or on the employer’s property, but would change the law in California with respect to whether an employer must accommodate medical marijuana use.  The California Supreme Court has held that the answer is no, and that is the current law in California. This bill would undo the California Supreme Court precedent and give employment protections to medical marijuana users.  The law would provide an exception for employers who would lose a license-related or monetary benefit under federal law if they hired or did not fire an individual who tested positive for marijuana.

SB 937 (Lactation Accommodation):  California already has a law requiring employers to accommodate the break needs of lactating employees.  At least one city (San Francisco) has enacted its own more detailed local ordinance on the subject.  This statewide bill would impose more detailed requirements on employers similar to those under the San Francisco ordinance and guidance on the subject under federal law.  More specifically, the bill would require employers to provide a lactating employee with a lactation room (other than the bathroom) that (1) is close to the employee’s work area, (2) is free from intrusion, (3) is shielded from view, (4) is free of toxic or hazardous chemicals, (5) contains a surface on which to place a breast pump and similar items, (6) has a place to sit, and (7) has access to electricity.  The employer would also have to ensure that the employee has access to a sink and refrigerator in reasonable proximity to the workspace.  Employers would be required to develop a written lactation accommodation policy and to respond to lactation accommodation requests within 5 days.  Employers with less than 5 employees who believe they cannot comply with the law could petition the Labor Commissioner for an exemption based on undue hardship (good luck with that).  The bill of course provides for penalties for non-compliance, and avenues of recourse through the Labor Commissioner and/or a private right of action with recovery of attorneys’ fees to a successful plaintiff.  Interestingly, the bill goes even farther, in proposing to require the California Building Standards Commission to adopt new rules that would require the construction of a lactation accommodation space in new or remodeled buildings that are at least 15,000 square feet.  The bill also sets forth specific parameters for these newly constructed lactation rooms.

SB 826 (Female Representation on Corporate Boards of Directors):  This bill would require publicly held corporations with their principal place of business in California to have at least one female on their board of directors by December 31, 2019.  By 2021, the number would increase to 2 where the board has five members and to 3 where the board has 6 members.  Similarly, SB 984 would require that state boards and commissions be comprised of at least 50% women.

SB 1284 (Annual Pay Data Reporting):  Similar to an unsuccessful bill last year, this bill would require employers that are incorporated under the laws of the State of California with 100 or more employees to annually report to the Department of Industrial Relations certain information on earnings by race, gender, and ethnicity, beginning September 30, 2019 and annually thereafter.  This information would be shared with the Secretary of State, Department of Fair Employment and Housing, and another entity referred to as the Commission on the Status of Women and Girls.

AB 2946 (Expanded Limitations Period for DLSE Discrimination Complaints):  This bill would allow employees up to three years (instead of six months) to file a charge of discrimination with the DLSE.  The bill would also amend Labor Code section 1102.5 to allow for recovery of attorneys’ fees by a prevailing plaintiff (but not by a prevailing employer) in a whistleblower retaliation case.

AB 1870 (Expanded Limitations Period for DFEH Charges):  This bill would allow employees up to three years (instead of one year) to file administrative charges of discrimination/harassment/retaliation with the Department of Fair Employment and Housing.  Thus, the bill effectively would extend the statute of limitations for an employee to file a lawsuit against the employer to approximately 4 years from the alleged unlawful employment action.  This would impact employer records retention policies and expose employers to threats of stale legal claims that are made more difficult to defend based on the passage of time, fading memories, employee (witness) turnover, etc.

AB 1867 (Records Retention – Sex Harassment Complaints):  This bill would require employers with 50 or more employees to retain records of sexual harassment complaints for 10 years.

SB 1038 (Personal Liability for Retaliation):  This bill would provide for individual liability for retaliation under the Fair Employment and Housing Act.  Under current law, an individual may be held personally liable for harassment, but not for discrimination or retaliation.

SB 1300 (Failure to Prevent Discrimination/Harassment):  This bill would change existing law by providing that where an employee alleges a claim for failure to prevent discrimination/harassment, the employee need not prove the underlying discrimination or harassment occurred in order to state a valid claim.  Separately, the bill would also prohibit a release of FEHA claims as a condition of employment or continued employment or in exchange for a raise or bonus.  The bill would also prohibit an employer from requiring an employee to sign a non-disparagement agreement or other document that prevents the employee from discussing unlawful acts, including sexual harassment or any other unlawful or “potentially unlawful” conduct, in the workplace.  Finally, the bill would expand California’s sexual harassment prevention training requirements to apply to all employers regardless of size (currently the training requirement only applies to employers with 50 or more employees) and would require that all employees (not just supervisors, as under current law) be trained within 6 months of hire and every two years thereafter.  It would also expand the scope of the required training to include bystander intervention training.

SB 1343 (Sexual Harassment Prevention Training):  This bill would require employers with 5 or more employees to provide sexual harassment prevention training to all employees by 2020 and once every two years thereafter.  The DFEH would be required to make available a two-hour training video for employers to use.

SB 820 (Confidentiality Provisions in Settlement Agreements):  These bills would prohibit provisions in settlement agreements that prevent disclosure of factual information relating to claims of sexual harassment/assault/abuse and gender discrimination.

AB 2366 (Leave for Victims of Sexual Harassment):  This bill would prohibit employers from taking adverse action against employees who are victims of sexual harassment (or whose immediate family member is a victim of sexual harassment) for taking needed time off work to attend court proceedings or to seek treatment (or to provide assistance or support to an immediate family member in these circumstances).

AB 2613 (Increased Penalties for Payday Timing Violations):  Provisions of the California Labor Code require employers to pay their employees at certain intervals, generally (with some exceptions) twice per month on designated paydays.  Because there aren’t already enough avenues for employees to collect penalties against their employers for technical Labor Code violations, this bill would add even more penalties for a violation of the payday timing requirements.  Specifically, the bill would provide for “statutory” penalties of $100 per employee per day, up to seven days, for an initial late payment.  For subsequent or willful violations, the penalty would be $200 per employee per day, up to seven days.  The penalties would be recoverable by the Labor Commissioner or by employees in a civil action, and would be “in addition to” any other penalties the employees may be entitled to recover for the same violation under the Labor Code.

SB 1252 (Copies of Payroll Records):  This bill would provide that employees are entitled to be provided with copies of their payroll records (not just the right to inspect or copy them) upon request.

AB 2587 (Paid Family Leave/Use of Vacation):  Current law allows employers to require an employee to use up to two weeks of vacation prior to, and as a condition of, receipt of paid family leave benefits through the state.  This bill would disallow this practice.

AB 1885 (Undocumented Agricultural and Service Workers):  This bill would require the State of California to work with the United States government to try to create a guest worker program in California whereby undocumented agricultural or service industry employees would be granted a permit to live and work in California.

AB 2496 (Janitorial Workers/Employee Presumption):  This bill would create a rebuttable presumption that a worker is an employee rather than an independent contractor where the worker performs work for which a property service registration is required by law.

AB 1938 (Inquiries re Familial Status):  This bill is vague in current form, but would generally employers from inquiring about an applicant’s or employee’s familial status (having custody of a child under 18 years of age).

AB 3109 (Confidentiality and No Re-employment Provisions):  This bill would prohibit contract provisions (including settlement agreement terms) that limit a party’s right to free speech in connection with a public issue or that limit a party’s right to seek employment or re-employment in a given occupation or profession.

We will be tracking these bills and will keep you posted as to significant developments.



High Court Determines a New Method of Calculating Overtime!

March 10, 2018

Well, here we go again. Another wage & hour decision that will smack the heck out of California employers. A new California Court decision (Alvarado v. Dart Container Corp) will once again put employers at risk with lawsuits.

The issue presented involved how to calculate the overtime rate of pay under California law when a non-exempt, hourly employee is paid a flat “bonus” (e.g. $15 extra) for working on a weekend day.  In other words, the bonus was a type of shift differential or attendance bonus tied to working undesirable shifts.  Because no good deed ever goes unpunished, the employer got sued for providing extra compensation to the employees who worked on the weekend.  According to the plaintiffs, the employer did not properly calculate the overtime rate of pay during weeks in which the bonus was paid.  To be clear, this isn’t an employer who ignorantly did not know that bonuses (where non-discretionary) must be included in calculating the overtime rate.  On the contrary, the employer did include the bonuses in calculating the overtime rate.

According to plaintiffs, however, the employer just did not do it right.  The employer followed the well-publicized Fair Labor Standards Act (“FLSA”) method for calculating the overtime rate where extra forms of compensation (on top of the base hourly rate) are paid to an employee during a workweek.  Under that easy-to-follow method, the employer paid the employees their base hourly rate for all hours worked, added the bonus, and then paid overtime compensation for all overtime hours at the rate of .5 times [the employee’s total compensation divided by total hours worked].  On the face of it, it appeared to be a proper method. The California Court of Appeal thought so, finding in favor of the employer and holding that the employer properly compensated its employees under California law.

The California Supreme Court decided otherwise and held that the employer failed to properly compensate its employees for overtime compensation during pay periods where the weekend attendance bonus was earned.  The Court held that California law is different than the FLSA and more protective of employees than the FLSA (i.e. if we can interpret California law in a way that will result in a more favorable outcome for the employee than would result under the FLSA, then we’ll go with the more favorable interpretation).  From that reasoning, the Court held that where the extra compensation is a flat bonus that is not tied to production, such as the weekend work bonus at issue in this case, the overtime rate of pay must be calculated by dividing the bonus only by the employee’s non-overtime hours worked during the pay period (rather than by the employee’s total hours worked, including overtime hours).  The Court reasoned that this type of bonus is not tied to production or hours worked, but would be paid in the same amount regardless of how many hours the employee worked during the workweek.  Because of this, the Court stated that it would be unfair to include overtime hours when calculating the overtime rate of pay on the bonus.  [If overtime hours were included when dividing the bonus by hours worked, the overtime would be paid at a lower rate than if the overtime hours were not included.]  As such, the Court held that when calculating the overtime rate of pay on this type of bonus, the amount of the bonus compensation must be divided by the total number of non-overtime hours to derive an hourly rate, 1.5 times which would be paid for all overtime hours worked.

To make matters worse for California employers, the Court suggested in a footnote that a different method (e.g. the FLSA method) “may” apply where other types of bonuses/extra compensation is involved that is more closely tied to production and earned in part by working overtime hours, i.e. production bonuses, commission, hours-based bonuses, piece rate compensation.  In these circumstances, it “may” be appropriate to divide that type of extra pay by total hours worked (rather than just non-overtime hours) to calculate the overtime rate on the bonus.  The Court did not provide clear lines in this regard, however.  Incidentally, lack of clarity in the law is what led to Dart Container being sued in the first place.  No California statute, regulation, Wage Order, or case law clearly instructed that overtime compensation needed to be calculated in this manner.

Now what? Well, the reality of this development is that from a litigation risk perspective, California employers would be best off not paying bonuses or other forms of non-discretionary “extra” pay to non-exempt hourly employees.  If you pay extra compensation, and your employees work overtime, you will be at risk of being sued (typically in a class action) for not calculating the overtime rate of pay properly.  If you choose to continue paying bonuses and similar extra compensation to non-exempt employees, it would be advisable to have each type of bonus reviewed to determine the proper means of calculating overtime on that bonus.

This is going to create more litigation and headaches for employers.

Note: If you want information on our “Violence in the Workplace Program” which includes “Active Shooter” training please email me at

An Aggressive Approach to Workers Comp Claims Management!

March 5, 2018

The following article was written by Stuart Baron, Esq. of Stuart Baron & Associates. Stu and I have been working together for a number of years now to tackle workers claims management. I asked him to write down a few thoughts so here they are!

               An Aggressive Approach to Workers Comp Claims Management

There is no question that a good and, where necessary, an in-depth medical diagnosis is critical to the success or failure of any workers’ compensation claim.  For most claims, a well-trained occupational doctor will be able to provide a comprehensive medical evaluation of the injury.  This will be an examination that properly documents the facts surrounding the injury coupled with a viable treatment plan that focuses getting the injured employee back on the job.  I would estimate this scenario will be true in at least 80% of the claims filed.

But then we have those claims that do not pass the “smell test.”  You have all seen them.  They are the “I fell down on the back part of the plant and no one saw it happen” claims.  “And now my back (or insert whatever body parts you wish) hurts and it is all work related.”  These usually happen about 15 minutes to an hour after their shift starts.  It also happens right after the employee has received a bad performance review and has been written up for a safety violation.

Then we have the ever-popular Post Termination claim.  These normally occur a week or later after the employee has left your employ either voluntarily or having been fired for cause. These claims usually come to you in the form of a letter from an attorney letting you know that your former employee suffered an injury and it is all your fault.  This even where you have had an exit interview that specifically asks if they have any work-related illness or injury that has not been reported to you.  The problem today is that we can defeat these claims–but at what cost? We are all seeing far too many claims settled for “nuisance” value in order to cut the carriers losses regardless of how defensible the claim is.

And finally, to add further insult to the claimed injury, we have the now rampant Cumulative Trauma or “I am wearing out” disease.  The problem here is that it hard to defend when there is no real meat to the claim.  The claim is usually “I hurt” but without being able to articulate what hurts and where.  Doctors have been prone to opine that there are, of course, medical findings and therefore it is most obviously work related.  We all know how the story goes from there.  Very little has been done in the past to counter this type of claim.  It is like trying to grab hold of a large balloon filled with water.  You simply cannot get a good grip on it.

Well, all that has changed.  US Healthworks has designed a next generation comprehensive and proactive approach to these claims.  It is called Coordinated Care Management (CCM) and is designed to provide a real-time, comprehensive medical evaluation and active follow up of these claims.  It encompasses a detailed medical history, a through medical evaluation of the claimed body parts, and a discussion of the causation of the alleged injury(s).  Is it really a viable compensable injury or is the employee just getting older and wearing out like the rest of us?  CCM, coupled with our FASTRAXX claims handling protocol, is enabling us to level the playing field and win more than we are losing.


 You need only e-mail me at, and I will be sure to forward you the registration form information.  Please see the flyer on the back side of this month’s Hotline for more details….


Criminal Background Checks

February 26, 2018

The new law regarding criminal background checks has some employers confused so let’s go over it step-by-step.

Effective January 1, 2018, this new law amends the California Fair Employment and Housing Act to prohibit employers with 5 or more employees from inquiring about criminal history on an employment application and/or at any time (including the interview process) prior to making a conditional offer of employment.

This law also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of:

  1. Whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job sought;
  2. You must take into consideration the nature and gravity of the offense;
  3. The amount of time that has passed;
  4. The nature and duties of the job sought by the applicant.

An employer who makes a preliminary decision to deny employment based on that individualized assessment must provide the applicant:

  1. A written notification of the preliminary decision that identifies the disqualifying conviction(s);
  2. Inform the applicant that he or she may provide a response that includes evidence challenging the accuracy of the conviction information and/or demonstrating rehabilitation or other mitigating circumstances;
  3. The employer also must provide a copy of the conviction history report, if any. (The employer may, but is not required to, explain or justify the reasoning for its preliminary decision.);
  4. The applicant must be provided with at least 5 business days to respond (before the employer can make a final decision on employment);
  5. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant must be given an additional 5 business days to respond to the notice;
  6. The employer is required to consider any information submitted by the applicant before making a final decision;
  7. If a final decision is made to deny employment, the employer again must provide written notification to the applicant and inform the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing and/or of any internal appeal rights the applicant may have to challenge the decision.  (Again, the employer may, but is not required to, explain its justification/reasoning for its final decision.).

This new law does not apply in those limited circumstances where a public or private employer is required by law to conduct a criminal background check or to restrict employment based on criminal history.  Covered California employers should familiarize themselves with the requirements of this new law and modify their employment applications and hiring processes accordingly.

NOTE: I will be speaking on the “Impact of Domestic Terrorism on the Workplace” on Monday, March 5th, 2018 from 10 am to 11:30 am at the Manhattan Beach Library. This opportunity is being presented by the Manhattan Beach Chamber of Commerce.

Bringing Your “Peacock” to Work!

February 19, 2018

An issue has re-emerged because of the passenger wanting to bring a “Peacock” on the plane claiming it was a service animal. We have received some calls because there are those who want to bring their animals to work. So the peacock event raised the question, once again, about whether or not employees can bring service animals to work. Let’s get some clarifications going between “service animals” and “support animals.”

The truth be told, whether it was a large peacock, or a small parakeet, or a dog, or any other animal labeled “emotional support,” the airline acted well within its rights, whether dealing with a customer or an employee. The ADA makes no reasonable accommodation allowance for “emotional support animals” of any species and of any size. Period. The ADA makes a clear distinction between “service animals” (some of which an employer must consider accommodating) and “emotional support animals” (none of which must be accommodated).

A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. …

Emotional support animals, comfort animals, and therapy dogs are not service animals under … the ADA. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either. … It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

In what circumstances must an employer consider allowing a service animal as an accommodation? When the work or tasks performed by the service animal is directly related to the individual’s disability. Examples include:

  • Assisting individuals who are blind or have low vision with navigation and other tasks.
  • Alerting individuals who are deaf or hard of hearing to the presence of people or sounds.
  • Providing non-violent protection or rescue work.
  • Pulling a wheelchair.
  • Assisting an individual during a seizure.
  • Alerting individuals to the presence of allergens.
  • Alerting a diabetic to irregular blood-sugar levels.
  • Sensing that an anxiety attack is about to happen and taking a specific action to help avoid the attack or lessen its impact.
  • Retrieving items such as medicine or the telephone.
  • Providing physical support and assistance with balance and stability to individuals with mobility disabilities.
  • Helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Only two species can ever qualify as service animals under the ADA—dogs and miniature horses (yep if you can believe that about the miniature horses!). That’s it. Any other animal, even if trained to do work or perform tasks for the benefit of an individual with a disability, is not an animal for which the ADA requires the consideration of an accommodation. So, to answer the question, “Can I bring my peacock to work?” “No, you may not.” If it’s a service dog (or miniature horse), however, and the employee asking is disabled, you must engage in the interactive process with the employee, and consider granting the request as an accommodation. Hope this clarifies this issue for the last time!

What to do When an Employee Refuses to Sign a Warning!

February 12, 2018

The one consistent question that comes up when we conduct “Documentation” trainings is “What if the person refuses to sign?” Let’s keep it real for a moment. You cannot force anyone to sign anything. Having stated that let’s look at some techniques that might help.

The hardest part is getting managers and supervisors to actually write someone up. Understand something. If you do not and a wrongful termination lawsuit is filed, how are you going to prove the termination was justified? It is as simple as that.

Moving forward you have an employee that is either not performing or has violated company policy. The next step after any verbal warning is to move toward a written warning. You have completed the form, presented it to the employee, and now it is time for that signature but hold on, he is refusing to sign it. Don’t panic. Employees often refuse to sign disciplinary actions, but they are more likely to sign if the notices are presented and worded in the right way. You want their signature as proof that they received the discipline for their behavior. There are other ways to prove he “saw it” although he refused to sign.

Ask the employee if he would like to write a rebuttal to whatever is written on the action form. If he says “yes” then let him write it out. Do not take offense to whatever he writes. Remember, the objective is to prove he read it, not that he agrees with it. If the employee still does not want to do anything then have a witness acknowledge that he saw the disciplinary action form being presented and the employee refused to sign.

Keep in mind, employees are more likely to sign disciplinary notices that clarify right above the signature line that they may disagree with the warning and, by signing, they are acknowledging only that they received and reviewed the documents.

Another well-known technique is to having wording to the effect that they understand, “My signature here indicates ONLY that I have had the opportunity to read this report. It does NOT indicate my agreement with the contents” and then have a signature line below it. If there is a comments box, include another signature line below it.  

If all else fails you can also have them write on the form that they refuse to sign it. Believe it or not in my experience they will do that nine times out of ten! If they do, have them initial it (they often think an initial is different than a signature) and date it.

Never fire an employee for refusing to sign. Consider this. After the meeting send an email recapping the meeting and that you respect their right not to want to sign. When they reply back what do you have, an acknowledgement by them that they saw the document. That’s all you want. Don’t let your emotions take over for the refusal.

Good luck! Any questions call me.



Employees Stealing Documents to use Against YOU!

February 5, 2018

All too often we get calls regarding employees stealing (or possibly stealing) documents they intend to use against you in whatever possible case they think they might have. It’s a situation that is now playing out all too often. Because of the ease of technology, these individuals can email documents to a personal email address, or drag them into a personal Dropbox, or copy them to a stick drive. Sometimes an employer may believe that the individual is starting up a business to compete against the employer or going to work for a competitor. But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit? Does an employee have a right to copy your documents to prepare a discrimination lawsuit? Believe it or not the answer is not that simple. It depends! In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.

In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.

  1. How did the employee obtain the documents?
    • Was it accidental or in the course of their job duties?
    • Or did they rummage through files or snoop around offices for documents?
  2. To whom did the employee produce the documents?
    • To their attorney?
    • Or to coworkers?
  3. How strong is the employer’s interest in keeping the documents confidential?
    • Do they contain trade secrets, or other confidential information, or suchthings as social security numbers or medical information?
    • Or do they contain non-confidential information?
  4. How did the employer discover the misappropriation?
    • Did the employee volunteer the information as part of the lawsuit?
    • Or did the employer discover it on its own?
  5. Did the employee violate a company policy by taking the documents?
    • What do the employer’s privacy and confidentiality policies say?
  6. Does the employee have an ability to preserve the evidence in a manner other than copying the documents?
    • Can the employee merely describe the content of the documents to his or her attorney?

So, the question then becomes, if you catch the employee red-handed with the documents, what should you do? Often, it’s fire now/ask question later. And courts generally support this plan of attack. For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.

In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The Courts will protect reasonable attempts to contest an employer’s discriminatory practices however, it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

The 6th Circuit reached a similar conclusion in Niswander v. Cincinnati Ins. Co. This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are other more legitimate ways to achieve the same goal (retaining counsel, who send a preservation letter to the employer). So what should you do if you catch an employee copying documents? Always seek to get advice on such matters. Don’t try to figure it out yourself. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and, unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee. Misappropriation of company property is usually (or should be) in your company handbook. Use it!