On June 4, 2019, the Court of Appeal, Third Appellate District issued an unpublished opinion in Krista Townley v. BJ’s Restaurants, Inc. holding that BJ’s Restaurants was not required to reimburse its employees for the cost of black,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 case law addressing the issue, BJ’s requested the opinion be published in the Official Reports. On July 5, 2019, the Court of Appeal granted BJ’s request and ordered the opinion certified for publication. This is the first published opinion in California to adopt the Division of Labor Standards Enforcement’s (“DLSE”) interpretation of a “uniform” and to hold that an employer is not required to reimburse employees for the cost of “non-uniform” work clothing. Matthew Sonne and Jason Guyser of Sheppard Mullin represented BJ’s Restaurants in this matter.
Continue Reading Employers Can Now Stand Firmly On Not Paying Employees For The Cost Of Slip-Resistant Shoes

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 increases. The amount of the increase varies by city and county, and some local governments make a distinction between large and small employers. Hotel workers in places like Long Beach, the County and City of Los Angeles, and Oakland are entitled to wages significantly higher than the minimum wage for other types of employees. The following chart summarizes these changes.
Continue Reading July 1, 2019 Minimum Wage Increases in California Counties and Municipalities

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 contribute more to the County’s pension plan than younger employees. After years of litigation and various appeals in the U.S. District Court of Maryland and the Fourth Circuit Court of Appeals, in April 2016, Baltimore County and the EEOC entered into a Joint Consent Order to equalize pension member contribution rates.
Continue Reading Mandatory Backpay in ADEA Claims: What Will SCOTUS Decide?

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 of Conduct acted in concert as insisted by the Guild. As WGA West president David A. Goodman said, “when the guild takes action, we do so as a group… we don’t ask an individual member to take a stand. We do it together…”

The WGA has sent a strong message to the ATA through the coordinated firing, but there remains uncertainty as to how the average writer will procure employment when he or she no longer has ccess to the only person (other than the writer him/herself) that is legally entitled to procure employment—a licensed talent agent.[3]
Continue Reading “Financial Core” – A Dissident Writer’s Recourse

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 could not be presumed from the fact that the arbitration agreement is “silent” on the issue of class arbitration or the mere fact that the parties agreed to arbitrate.
Continue Reading U.S. Supreme Court Upholds Individualized Arbitration Where Agreement Is Ambiguous on Issue of Class Arbitration

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 report out of committee by the March 28, 2019 deadline.
Continue Reading The Potential For Stemming BIPA Suits Waits Another Day

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?

On February 28, 2019, U.S. Representative Hank Johnson (D-GA) and U.S. Senator Richard Blumenthal (D-CT) introduced “The Forced Arbitration Injustice Repeal Act” (“FAIR Act”) which seeks to (1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and (2) prohibit agreements and practices that interfere with the rights of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.

The Senate bill is S. 610. It has 33 co-sponsors, all Democrats. It has been referred to the Senate Judiciary Committee, where it is unlikely to receive consideration. The House bill (H.R. 1423), on the other hand, has been referred to the House Judiciary Committee where it is likely to receive active consideration. It has 160 co-sponsors.
Continue Reading New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements

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 employee engaged in protected activity in a whistleblower claim under Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”).  This decision clarifies the proper application of the express statutory language of Section 806.
Continue Reading Ninth Circuit Holds That Statutes Do Not Constitute “Rules or Regulations of the SEC” for Purposes of Sarbanes-Oxley Act Whistleblower Claims

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 an alleged failure to pay wages under California’s employee-friendly labor laws.
Continue Reading California Supreme Court Announces a Win for Payroll Outsourcing Industry

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 and state laws. Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms: (1) disclosure and consent under Fair Credit Reporting Act; and (2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law). This decision applies to employees providing services in the Ninth Circuit (California, Arizona, Hawaii, Alaska, Idaho, Montana, Nevada, Oregon and Washington).
Continue Reading Complicating Simplicity: Ninth Circuit Requires Separate Stand-Alone Documents for Employment Background Checks