Category Archives: Labor and Employment

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“Financial Core” – A Dissident Writer’s Recourse

Richard KopenheferMichelle JuenBy Richard Kopenhefer and Michelle Juen 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 SedlockBy Theanna Sedlock 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 HowardBy Richard J. Simmons and Rachel 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

Tax Reform: Nonprofits and their Executives Brace for Impact

Tamar RosenbergJay GerzogAmanda ZablockiBy Tamar Rosenberg, Jay Gerzog and Amanda Zablocki on Posted in Bonus Compensation, Educational Updates, Employee Benefits, Health, Labor and Employment
The Senate voted yesterday to begin formal negotiations with the House of Representatives to reconcile their two versions of the Tax Cuts and Jobs Act, a bill that seeks to make sweeping changes to federal tax law. Republicans are racing to enact a final bill before Christmas. Under both versions of the bill, tax-exempt organizations … Continue Reading

Federal Court Strikes Down Department of Labor’s Overtime Rule

John EllisBy John Ellis on Posted in Department of Labor, Exempt, Fair Labor Standards Act (FLSA), Labor and Employment
On August 31, 2017, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas issued an order granting a group of twenty-one states’ and fifty-five business associations’ motion for summary judgment in consolidated cases seeking declaratory and injunctive relief against a May 23, 2016 Department of Labor rule drastically increasing … Continue Reading

The Rescission of DACA – A Quick Overview of How This Impacts Your DACA Employees

Greg BerkBy Greg Berk on Posted in Forms I-9, Immigration, Labor and Employment
USCIS announced on September 5, 2017, that they are phasing in a rescission of the Deferred Action for Childhood Arrivals program (DACA). The DACA program began in 2012 and granted temporary status and work permits to the “dreamers” who came here as children without visas. Here’s a summary of how the new rules will impact … Continue Reading

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

Jonathan E. MeyerDavid GallacherGreg BerkBy Jonathan E. Meyer, David Gallacher and Greg Berk on Posted in Labor and Employment
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 … Continue Reading

New Jersey Supreme Court Holds That an Employer Can Sue a Disloyal Employee To Clawback Salary Without Showing Economic Loss

By Sheppard Mullin on Posted in Labor and Employment, Termination
In Kaye v. Rosefielde (A-93-13), the New Jersey Supreme Court recently held that an employer need not demonstrate that it suffered an economic loss in order to recoup the salary of a disloyal employee.  The Court explained that courts have the equitable power to require disgorgement for any pay periods during which the employee was … Continue Reading

Home Care Associations Seek Stay by SCOTUS of New Wage-and-Hour Rules, As the Effective Date of DOL Wage-and-Hour Regulations Quickly Approaches

Gregg FischRachel LandauerBy Gregg Fisch and Rachel Landauer on Posted in Labor and Employment, Wage and Hour
Recently, the D.C. Circuit Court of Appeals ruled in Home Care Association of America, et al. v. Weil, that the Department of Labor’s (“DOL”) regulations about the inapplicability of certain statutory exemptions for third-party employers of home care workers are enforceable and that the federal minimum wage and overtime rules will apply to these types … Continue Reading
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