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Gregg Fisch is a partner in the Labor & Employment Practice Group in the firm's Century City office.

Earlier this week, on December 3, 2013, the Fifth Circuit Court of Appeals held that arbitration agreements lawfully can contain class-action waivers.  In its ruling in D.R. Horton, Inc. v. National Labor Relations Board, the Fifth Circuit overturned a National Labor Relations Board (the “Board”) administrative decision, finding that D.R. Horton, Inc. did not violate the National Labor Relations Act (NLRA) by requiring its employees to sign an arbitration agreement in which they waived their right to pursue employment claims in collective or class actions.  Specifically, the Court concluded that the Board failed to “give proper weight to the Federal Arbitration Act [FAA],” which requires that arbitration agreements be enforced as written, subject to two exceptions, both inapplicable here.  However, the Court upheld the Board’s determination that the arbitration agreement could be reasonably construed to prohibit employees from filing an unfair labor practice charge, in violation of Section 8(a)(1) of the NLRA.
Continue Reading Fifth Circuit Upholds The Validity Of Class-Action Waivers In Arbitration Agreements

On October 1, 2013, the San Francisco Board of Supervisors approved an ordinance that will give employees the right to request flexible work arrangements to assist with caregiver responsibilities.  San Francisco employers will be required to consider and respond to all such requests in a formal manner.

Continue Reading The Increasing Cost of Doing Business in San Francisco: Board of Supervisors Approves Family Friendly Workplace Ordinance

On September 25, 2013, California Governor, Jerry Brown, signed a bill (Assembly Bill No. 10) that will raise the hourly minimum wage up 25% over the next few years.  First, the minimum wage will increase in less than one year, on July 1, 2014, from $8.00 per hour to $9.00 per hour, and then only one and one-half years later, on January 1, 2016, up another one dollar to $10.00 per hour.  This new law – which amends Labor Code section 1182.12 – creates the first increase to California’s minimum wage in six years.  Not only will the new law increase the take-home pay for many non-exempt hourly workers in California, but employers need to be mindful of the new law’s impact on lower-salaried exempt employees and other potential pitfalls.
Continue Reading Passage of Increase in California’s Minimum Wage Could Impact More Than Just Hourly, Minimum Wage Workers

It now should be clear to employers in California that the litigation rules are different as to what must be presented in discrimination lawsuits to succeed. Notably, just last week, in Alamo v. Practice Management Information Corp., B230909 (2nd Dist., Div. 7, Sept. 5, 2013), the California Court of Appeal held that the former versions of jury instructions – CACI Nos. 2430, 2500, 2505, and 2507 – are invalid in light of the California Supreme Court’s decision earlier this year in Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), because a FEHA discrimination claimant now is required to show that the protected status was a “substantial motivating reason” for the adverse action, and not merely “a motivating reason,” as the earlier versions of the jury instructions stated. The Alamo court also held that the employer was prevented from asserting the mixed motive defense at trial, because its answer did not put the plaintiff on notice that the defense was at issue. As such, going forward, an employer always should plead at the outset of the case (assuming that there is some basis for such an assertion) that it had a legitimate non discriminatory reason for the adverse employment decision, and that it would have made the same decision even in the absence of any purported unlawful motive.

Continue Reading In the wake of the California Supreme Court’s Harris Decision, A FEHA Claimant Must Show Discrimination was a “Substantial Motivating Factor” and An Employer Waives its Mixed-Motive Defense by Failing to Assert It in Its Answer

Earlier this week, the United States Supreme Court narrowed the definition of “supervisor” for purposes of employment-related claims. Specifically, on Monday, June 24, 2013, the Supreme Court ruled in Vance v. Ball State University, et al., that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.” The Court’s 5-4 decision resolves a circuit split concerning the extent of authority an employee must exercise and be granted to be classified as a “supervisor.”
Continue Reading Supreme Court Narrows Definition of “Supervisor” Under Title VII

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.
Continue Reading Is Your Criminal Screening Process Compliant?

On April 24, 2013, a federal jury in the Northern District of California found former Korn/Ferry International corporate executive recruiter, David Nosal, guilty on six counts of conspiracy, stealing trade secrets, and violations of the Computer Fraud and Abuse Act (“CFAA”). An appeal is expected, however.
Continue Reading Federal Jury Finds Executive Recruiter Guilty Stealing Trade Secrets From Former Employer In Order to Start Competing Business

In Elijahjuan v. Superior Court, Case No. B234794 (2nd Dist, Div. 8, Oct. 17, 2012), the California Court of Appeal held that the specific language of an agreement did not require plaintiffs to arbitrate their claims for misclassification as independent contractors in a wage and hour putative class action, concluding that the arbitration language covered only disputes arising from the “application or interpretation” of the plaintiffs’ work agreements.
Continue Reading In A 2-to-1 Split Decision, The California Court Of Appeal Parses The Language Of An Agreement And Denies Arbitration Of California Labor Code Claims

In the recent California Court of Appeal decision of Pulli v. Pony International, LLC, the court clarified that Labor Code section 206.5 prohibits an employer from requiring an employee to execute a release of a claim for wages only and does not prohibit the employer from requesting that the employee waive his right to a jury trial by agreeing to arbitrate his employment-related claims. Although the court refused to rule on whether the arbitration agreement itself was enforceable (even though it expressly held that the provision was not automatically unenforceable), the decision appears to be at least a small victory for employers and plain language statutory constructionists.
Continue Reading California Court of Appeal Provides Clarification of Labor Code Section 206.5’s Restrictions on Releases of Wage Claims

In the published portion of its recent decision in Rickards v. United Parcel Service, Inc., Case No. B234192 (filed June 19, 2012), the California Court of Appeal held that a complaining employee can satisfy the jurisdictional prerequisites for filing a lawsuit under the Fair Employment and Housing Act (“FEHA”) by simply submitting a complaint through the Department of Fair Employment and Housing’s (“DFEH”) online automated system.
Continue Reading Court Rules that Employee’s Submission of Discrimination Complaint Through DFEH’s Online System is Sufficient to Meet Jurisdictional Prerequisite for Filing FEHA Lawsuit