Buy American and Hire American – New Executive Order Promises to Put American Workers First, But Practical Impacts Remain Unclear

On April 18, President Trump signed a new executive order (EO) at a ceremony in Kenosha, Wisconsin. The EO is entitled “Buy American and Hire American” and focuses on these two themes, with the President’s stated goal of ending the “theft of American prosperity” by focusing on American workers and products. While the details of how the new EO will be applied will undoubtedly take months to implement (pending numerous agency-level reviews), companies doing business with the federal government, or with an interest in foreign high-skill workers, should be aware of these new developments so that they can prepare for the adjustments they will need to make in the near future, as the President’s efforts to put American workers first take shape. Continue Reading

NYC Council Approves Salary History Inquiry Ban

On Wednesday, April 5, 2017, the New York City Council approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process.  If signed by Mayor Bill DiBlasio – which is expected – the law will become effective sometime in October 2017, depending on the date the law is signed. Continue Reading

In California, The Statutory Right To Seek Public Injunctive Relief Is Unwaivable

On April 6, 2017, in the matter Sharon McGill v. Citibank, N.A., the California Supreme Court ruled unanimously that an arbitration agreement that waives a statutory right to seek public injunctive relief in any forum, is contrary to California public policy and is therefore unenforceable under California law.  In arriving at its ruling, the Court distinguished between class action waivers and the waiver of the right to public injunctive relief.  The Court held that class actions are a procedural device that enforces substantive law, while the right to public injunctive relief is an unwaivable substantive statutory remedy that the Legislature has expressly made available under certain laws.  Although this is not an employment case, the Court’s holding is important in the employment context because it distinguishes between the waiver at issue in the agreement, which it ruled was unenforceable, and class action waivers, which many employers include in their mandatory arbitration agreements. Continue Reading

Sheppard Mullin Secures Major Victory for Chipotle in Nationwide Misclassification Action By Demonstrating Variations Among Proposed Class Members

The Court’s opinion in Scott v. Chipotle Mexican Grill demonstrates how employers can successfully combat class action claims that employees were misclassified as exempt. The successful defense of the class certification motion relied chiefly on deposition and declaration testimony to highlight inconsistencies, variations, and individualized inquiries that prevented resolution of the claims at issue on a class-wide basis.

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For Your Consideration: Recent State-to-State Developments on Sufficient Consideration for Employee Non-Compete Agreements

The various laws, statutes, and policies governing non-compete agreements are nuanced, inconsistent, and sometimes downright contradictory from state-to-state.  The issue of consideration is no different.  Like other contracts, non-compete and restrictive covenant agreements must be supported by adequate and sufficient consideration at the time of execution.  However, what constitutes adequate consideration for a restrictive covenant, especially a non-compete provision, varies from state to state.  And, more importantly, the concept of adequate consideration has shifted in recent years reflecting an increasingly strict approach to enforcing non-compete agreements post-employment.

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Congress Considers Limiting Pre-dispute Arbitration Agreements in the Employment Context

Many employers require employees to sign arbitration agreements at the inception of the employment relationship and prior to any disputes, such as part of their new hire packets or as a condition of their employment.  Recently, Congressional Democrats have introduced legislation to invalidate such pre-dispute arbitration agreements.

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California Court of Appeal Affirms Validity of Hospital Meal Period Waivers

The ability of hospitals to use meal period waivers was called into question by a 2015 Court of Appeal decision in Gerard v. Orange Coast Memorial Medical Center (Gerard I), which held that the provision in Wage Order 5 allowing waivers even when employees work over 12 hours was invalid.  Following two more years of litigation, we can now inform you that the three-member panel that reached the 2015 decision in Gerard I, reversed itself on March 1, 2017 in Gerard II.  In its new opinion, the Court of Appeal adopted Sheppard Mullin’s argument and confirmed that the special meal period rules for health care employees in Wage Order 5 are, in fact, valid.

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2018: California Employment Laws on the Horizon

Are you finally caught up on all of the new California laws taking effect in 2017?  Then begin preparing for 2018 because the California legislature has been busy drafting another set of employment related laws.  Here is a sneak peak of some of the more notable proposals that may be coming down the pike.  For now, these are only proposed laws that have neither passed the legislature nor been signed into law.  If they do become laws, their substance may ultimately change substantially.

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Proposed Legislation May Significantly Limit Class Action Litigation in Federal Court

Twelve years after he introduced the Class Action Fairness Act of 2005, Representative Bob Goodlatte (R-VA) has introduced the Fairness in Class Action Litigation Act of 2017 (“the Act”), which would significantly change the federal class action landscape by creating several procedural mechanisms designed to head off lawyer-driven class action litigation.  The stated purpose of the Act is to “(1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims; (2) diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system; and (3) restore the intent of the framers of the United States Constitution by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.”  The Act contains many game-changing provisions, five of which are detailed below.

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All Single User Restrooms In California Must Now Welcome All Genders

AB 1732, California’s Equal Restroom Access Act, goes into effect today, March 1, 2017.  Accordingly, all single-user toilet facilities in any California business establishment, place of public accommodation, or state or local government agency must be identified as all-gender toilet facilities.  A single-user toilet is “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”  Essentially, single-user restrooms – restrooms with one toilet and/or urinal and sink – must now have a sign that states the restroom is for all genders.  For example, if your business establishment has two restrooms that are both single-user toilets, then both restrooms must be all-gender toilet facilities.  The signage must comply with Title 24 of the California Code of Regulations, including the required gender-neutral geometric sign (a triangle within a circle).  The new law will be enforced by inspectors, building officials, and other local officials who may perform inspections to ensure compliance.

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