The last few weeks saw the California Supreme Court render two relatively high-profile employment law decisions — Costco v. Superior Court , which clarified the scope of attorney-client privilege for opinion letters on wage-and-hour issues, and Roby v. McKesson , which decided for the first time federal constitutional limits on punitive damages awards in California courts. It is a less conspicuous issue also decided in Roby , however, that in the long run may end up having the greatest day-to-day significance for employment lawyers.
Roby also addressed a subtle, but very important, fault line in employment law — one that until now had seemed to divide the kind of supervisory behavior that could give rise to claims of “harassment,” for which supervisors could be personally liable, from behavior that could only give rise to claims of “discrimination,” for which supervisors could not be personally liable.
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