Category Archives: Labor and Employment

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Expanding Independent Contractors in California: New Law Awaits Governor’s Signature

Timothy KimJonathan P. BarkerJustine PhillipsBy Timothy Kim, Jonathan P. Barker and Justine Phillips on Posted in Class Actions, Employment Work, Independent Contractors, Labor and Employment, Wage and Hour
As we have previously reported, California law utilizes the “ABC” test to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission.… Continue Reading

Is BIPA Preempted? – Illinois Appellate Court Considers Workers’ Compensation Exclusivity Question

Amy HarwathBy Amy Harwath on Posted in Class Actions, Illinois Employment Legislation, Labor and Employment, Privacy
As class actions brought under Illinois’ Biometric Information Privacy Act (“BIPA”) proceed through litigation, defendants have made a variety of arguments attempting to push courts to define the limits of the somewhat vague statute. The Illinois Supreme Court’s 2019 decision in Rosenbach v. Six Flags Entertainment Corp. was the first opinion to provide interpretive guidance … Continue Reading

The Time Is Now for Employers in Illinois to Abide by New Laws

Kevin CloutierShawn D. FabianMikela SutrinaBy Kevin Cloutier, Shawn D. Fabian and Mikela Sutrina on Posted in Arbitration Agreements, Employee Handbooks, Employer Scheduling Practices, Employment Agreements, Federal Arbitration Act (FAA), Illinois Employment Legislation, Labor and Employment, Release Agreements, Reporting Requirements, Sexual Harassment, Violence
The New Year brings new laws for Illinois employers. Some laws go into effect this Summer, while others are effective as of this month. For employers who have not yet revised handbooks, policies and agreements, the time is now. Below is a brief summary of the new laws.… Continue Reading

Back to the Joint Employer: Having Changed the Classification Test for Independent Contractors, Will the California Legislature Target the Joint Employer Test Next?

Y. Douglas YangBy Y. Douglas Yang on Posted in California Employment Legislation, California Legislative Update, Employment Agreements, Employment Lawyers, Employment Work, FEHA, Independent Contractors, Joint Employment, Labor and Employment, Legal Info, Minimum Wage, Wage and Hour
As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law.  Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial … Continue Reading

Fifth Circuit Affirms Enron Broker Not Liable to Employee Stock Option Holders for False or Withheld Information

Theanna BezneyBy Theanna Bezney on Posted in Bonus Compensation, Employee Benefits, Equity Compensation, Labor and Employment, Legal Info
Ending a more than 15-year-long legal battle, the Fifth Circuit on May 24, 2019, unanimously affirmed the dismissal of a proposed class action against subsidiaries of UBS AG, alleging violations of U.S. securities laws for their role as a broker of Enron’s employee stock option plan and for failure to disclose material information about Enron’s … Continue Reading

Predictable Scheduling Makes Its Way To Chicago

Shawn D. FabianBy Shawn D. Fabian on Posted in Employer Scheduling Practices, Illinois Employment Legislation, Labor and Employment
Chicago Mayor Lori Lightfoot is expected to sign into law the City Council’s recently passed Chicago Fair Workweek Ordinance (the “Ordinance”).  The Ordinance, which includes predictable scheduling provisions, will dramatically affect workweek scheduling for many Chicago employers beginning on July 1, 2020. We previously wrote about Emeryville, California’s Fair Workweek Ordinance.  Emeryville became the third … Continue Reading

Employers Can Now Stand Firmly On Not Paying Employees For The Cost Of Slip-Resistant Shoes

Jason GuyserBy Jason Guyser on Posted in Expense Reimbursement, Labor and Employment, PAGA, Wage and Hour
On June 4, 2019, the Court of Appeal, Third Appellate District issued an unpublished opinion in Krista Townley v. BJ’s Restaurants, Inc. holding that BJ’s Restaurants was not required to reimburse its employees for the cost of black, slip-resistant, closed-toe shoes that BJ’s required its restaurant employees to wear. Due to the lack of California … Continue Reading

July 1, 2019 Minimum Wage Increases in California Counties and Municipalities

Wesley SheltonBy Wesley Shelton on Posted in Labor and Employment, Minimum Wage, Wage and Hour
Many California employees received a raise on January 1, 2019 when the state increased the minimum wage to $12 per hour for large employers (26 employees or more) and $11 per hour for small employers (25 employees or fewer). Effective July 1, 2019, several counties and municipalities in California are adding to these minimum wage … Continue Reading

Mandatory Backpay in ADEA Claims: What Will SCOTUS Decide?

Jenna MennonaBy Jenna Mennona on Posted in Discrimination, Labor and Employment, SCOTUS
Baltimore County has petitioned the Supreme Court to decide whether backpay for violations of the Age Discrimination in Employment Act (“ADEA”) is mandatory. Background In 1999, two Baltimore County Correctional Officers initiated charges at the Equal Employment Opportunity Commission (“EEOC”) claiming that they were being discriminated against based on their ages because they had to … Continue Reading

“Financial Core” – A Dissident Writer’s Recourse

Richard KopenheferBy Richard Kopenhefer on Posted in Collective Bargaining, Labor and Employment, National Labor Relations Act, National Labor Relations Board
Amid the confusion and tensions of the WGA-ATA dispute over packaging fees and agency ties to affiliated production entities, more than 7,000 termination letters have been sent out to non-franchised agents who once represented WGA members.[1] The mass firing was “mandatory rather than optional”[2] and 92% of writers who voted in favor of the Code … Continue Reading

U.S. Supreme Court Upholds Individualized Arbitration Where Agreement Is Ambiguous on Issue of Class Arbitration

Thomas KaufmanSami HasanBy Thomas Kaufman and Sami Hasan on Posted in Arbitration Agreements, Class Actions, Employment Agreements, Federal Arbitration Act (FAA), Labor and Employment, PAGA, SCOTUS
In a 2010 decision, Stolt-Nielsen S. A. v. Animalfeeds International Corp., the United States Supreme Court held that parties may not be compelled to submit to class arbitration under the Federal Arbitration Act (FAA) unless there is a contractual basis for concluding that they agreed to do so. The Court held that such an agreement … Continue Reading

The Potential For Stemming BIPA Suits Waits Another Day

Shawn D. FabianBy Shawn D. Fabian on Posted in Attorneys' Fees and Costs, Class Actions, Hiring, Illinois Employment Legislation, Labor and Employment
In the aftermath of the Illinois Supreme Court’s Rosenbach decision, Illinois employers have faced a wave of class action litigation filed under the Biometric Information Privacy Act (“BIPA”). Employers hoping for relief from the statute’s private right of action must wait for another day (or another session) as Senate Bill 2134 (“SB 2134”) did not … Continue Reading

New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements

Garen DodgeDavid AlvarezBy Garen Dodge and David Alvarez on Posted in Arbitration Agreements, Federal Arbitration Act (FAA), Labor and Employment
While arbitration as a form of alternative dispute resolution (“ADR”) has long had a presence in American jurisprudence, a recent Supreme Court decision —coupled with significant cultural trends —have left many employers and legislators wondering about the continued viability of mandatory pre-dispute arbitration for all employment disputes. Is the FAIR Act Fundamentally Unfair to Employers? … Continue Reading

Ninth Circuit Holds That Statutes Do Not Constitute “Rules or Regulations of the SEC” for Purposes of Sarbanes-Oxley Act Whistleblower Claims

John StigiJennifer RedmondKristi ThomasBy John Stigi, Jennifer Redmond and Kristi Thomas on Posted in Corporate Governance, Labor and Employment
In Wadler v. Bio-Rad Laboratories, Inc., No. 17-16193, 2019 WL 924827 (9th Cir. Feb. 26, 2019), the United States Court of Appeals for the Ninth Circuit held that statutes, including the Foreign Corrupt Practices Act (“FCPA”), do not constitute “rule[s] or regulation[s] of the Securities and Exchange Commission” (“SEC”) for purposes of determining whether an … Continue Reading

California Supreme Court Announces a Win for Payroll Outsourcing Industry

Theanna BezneyBy Theanna Bezney on Posted in Class Actions, Fair Labor Standards Act (FLSA), Labor and Employment, Minimum Wage, Payroll, Reporting Requirements, Wage and Hour
Last week, the California State Supreme Court struck a decisive victory in favor of payroll companies, issuing a unanimous opinion that an employee is not a third-party beneficiary of the contract between her employer and its payroll service provider. The court held that an employee-plaintiff has no standing to sue her employer’s payroll company for … Continue Reading

Complicating Simplicity: Ninth Circuit Requires Separate Stand-Alone Documents for Employment Background Checks

Justine PhillipsBrooke PurcellBy Justine Phillips and Brooke Purcell on Posted in Background Investigations, Class Actions, Employment Applications, Employment Work, Labor and Employment
Albert Einstein believed “Everything should be made as simple as possible, but not simpler.” The Ninth Circuit seems to agree. In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal … Continue Reading

SCOTUS Holds Independent Contractor Truck Drivers Exempt from Arbitration Under FAA

Amy HarwathBy Amy Harwath on Posted in Arbitration Agreements, Federal Arbitration Act (FAA), Independent Contractors, Labor and Employment, SCOTUS, Wage and Hour
On January 15, 2019, the Supreme Court issued its decision in New Prime Inc. v. Oliveira, where it decided independent contractor truck drivers cannot be forced into arbitration.  The Court’s decision is based on Federal Arbitration Act § 1, which excepts from coverage disputes involving “contracts of employment” with “workers engaged in foreign or interstate … Continue Reading

California Legislature Amends Section 1542: Are Employer Settlement Agreements Now More Vulnerable to Attack?

Reanne Swafford-HarrisBy Reanne Swafford-Harris on Posted in California Employment Legislation, California Legislative Update, Class Actions, Employment Agreements, Labor and Employment, Release Agreements, Termination
On January 1, 2019, California’s Senate Bill No. 1431 went into effect, making a slight, but potentially significant amendment to Civil Code Section 1542. The prior version of the statute read: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at … Continue Reading

California Supreme Court Confirms Validity Of Meal Period Waivers For Healthcare Employees

Richard J. SimmonsRachel Patta HowardBy Richard J. Simmons and Rachel Patta Howard on Posted in Class Actions, Labor and Employment, Wage and Hour
On December 10, 2018, the California Supreme Court handed down its unanimous decision in Gerard, et al. v. Orange Coast Memorial Medical Center, affirming the Court of Appeal ruling that voluntary meal period waivers are permissible for healthcare employees who work long shifts, even if they work more than 12 hours. By allowing healthcare employees … Continue Reading

California Court of Appeal Affirms That Dynamex’s ABC Independent Contract Test Is Limited To Claims Arising Under Wage Orders

Patricia JengBy Patricia Jeng on Posted in Independent Contractors, Labor and Employment, Wage and Hour
In Jesus Cuitlahuac Garcia v. Border Transportation Group, LLC, et al, the California Court of Appeal, Fourth Appellate District has held that the ABC test set forth in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018) applies only to causes of action brought under wage orders. Plaintiff Garcia was a taxicab driver … Continue Reading

California Supreme Court Issues Narrow Holding In De Minimis Case, Leaving Many Issues Unresolved

John EllisBy John Ellis on Posted in Employment Lawyers, Employment Work, Fair Labor Standards Act (FLSA), Labor and Employment, Wage and Hour
On July 26, 2018, the California Supreme Court issued its long awaited decision in Troester v. Starbucks Corporation (S234969) on whether California wage and hour law recognizes the de minimis doctrine established by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680 (1946) for wage claims arising under federal … Continue Reading

The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

Timothy KimBy Timothy Kim on Posted in Class Actions, Employment Work, Independent Contractors, Labor and Employment, Wage and Hour
On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent … Continue Reading
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