In an important decision for workers seeking to join together to enforce their employment rights, the Ninth Circuit Court of Appeals ruled in Morris v. Ernst & Young (https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/22/13-16599.pdf) that employers can not impose concerted action waivers in mandatory arbitration agreements. The Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act (“NLRA”) by requiring employees to waive their right to participate in “concerted activities” such as class and collective actions. With Morris, the Ninth Circuit joins the Seventh Circuit (Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016)), which was the first federal Circuit Court to adopt the National Labor Relations Board (“NLRB”) position in D.R. Horton, Inc., 357 NLRB No. 184 (2012).

In Morris, employees filed a class and collective action alleging that their employer had misclassified certain employees as exempt from overtime in violation of the Fair Labor Standards Act (“FLSA”) and California labor laws. These employees were required to sign agreements that had a “concerted action wavier” that required them (1) to pursue legal claims against Ernst & Young exclusively through arbitration, and (2) to arbitrate as individuals in “separate proceedings.”

The Court explained that:

Gear-and-Gavel_goldMany people are aware that employers cannot discriminate against an employee with a disability under the California Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA).  But, what if you have a child, spouse or parent with a disability and need to take time off from work to care for him or her?  What if you need to be home in the evenings to nurse a disabled loved one back to health?  Can your employer retaliate against you for requesting an accommodation or discriminate against your because you are associated with someone with a disability?  Continue reading

Gear-and-Gavel_dark-blueIt feels like the “gig economy” (also referred to euphemistically as the “sharing economy”) has taken over.  Uber, Grubhub, TaskRabbit, wherever you look, it seems like employees are being replaced by independent contractors or temporary workers who are being exploited by internet-based companies.  This perception is stoked by predictions in the tech industry, such as Intuit’s recent claim that by 2020, 43 percent of workers will be employed in the on-demand labor market.  (Of course, Intuit markets its products to “on-demand employers,” so such predictions should be taken with a grain of salt.)

A tectonic shift of this nature would upend the way that we think about work and wages.    Among other things, independent contractors are not subject to many wage and hour requirements, such as overtime and the minimum wage.  And temp workers often struggle to piece together a livable income from multiple sources of employment.

But how many workers are actually transitioning to the gig economy?  Until recently, no one really knew.  The Bureau of Labor Statistics, normally a good source for such information, had not addressed this issue since 2005.  (BLS has promised to publish a survey regarding this issue in 2017.  See beta.bls.gov/labs/blogs/2016/03/03/why-this-counts-measuring-gig-work/)  Fortunately, in the meantime, Lawrence Katz and Alan Krueger have written a concise and clear paper called “The Rise and Nature of Alternative Work Arrangements in the United States, 1995-2015.”  It is available online at krueger.princeton.edu/sites/default/files/akrueger/files/katz_krueger_cws_-_march_29_20165.pdf.

 

Do you have a client who is sixty-five or older?  Do you have a disabled client?  If so, you should determine whether the client is a Medicare-enrolled beneficiary.

Medicare beneficiaries who have claims against a tortfeasor with liability insurance or no fault insurance must initially contact the Centers for Medicare and Medicaid Services (CMS) and its Coordinator of Benefits Contractor (COBC) to report a case.  Continue reading

Governor Jerry Brown’s budget for 2016-17 contains several significant amendments to the procedural requirements of the Private Attorneys General Act, or PAGA.  These amendments apply to PAGA cases filed on or after July 1, 2016.  They are limited to cases alleging violations of the California Labor Code provisions listed in Labor Code section 2699.5.

The amendments fall into four large categories:  (1) the cost and procedure for filing a PAGA action; (2) the timing of PAGA actions; (3) what information and documents must be provided to the Labor and Workforce Development Agency, or LWDA; and (4) the procedure that an employer must follow to cure PAGA violations.  Each amendment goes into effect on July 1, 2016, and does not affect PAGA notices filed before that date.

First, PAGA notices will require a filing fee of $75, and must be submitted both online and by certified mail.

Over the past decade or so, higher court rulings regarding class actions have tended to dramatically favor either corporations or workers.  Corporations have arguably scored the most significant victories.  However, with the recent exit of Justice Antonin Scalia from the United States Supreme Court, there are some indications that this tide has begun to turn.  At the same time, it is clear that a Republican victory in November 2016 would return a conservative majority to the Court, and devastate any positive momentum in terms of workers’ rights.

Vaquero v. Ashley Furniture Industries, Inc., No. 13-56606 (June 8, 2016), a recent decision of the Ninth Circuit, is a good example of the type of decision that we can hope to see more of in the future.  Vaquero does three important things.   First, it properly limits the scope of Wal-Mart v. Dukes, 564 U.S. 338 (2011) with respect to the issue of commonality.  Second, it limits the impact of Comcast v. Behrend, 133 S. Ct. 1426 (2013) in wage and hour class actions.  Finally, it underscores the critical holding in Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016) that plaintiffs may continue to rely upon representative evidence to prove both liability and damages.  As such, Vaquero provides powerful ammunition for workers and their advocates in class actions. Continue reading

 

A major storm-the biggest in decades- has been brewing for years in the American workplace.  At its center is whether employers can require workers to waive their right to bring class, collection, and representative actions.  The implications are enormous:  As union membership has declined, workers have relied more on litigation to stop companies from breaking the law.  If employers succeed in stripping workers of the right to do so, the results will be grim indeed.

Until recently, the field of combat had consisted of, on the workers’ side, the National Labor Relations Board, which held in D.R. Horton that such agreements violate Section 7 of the National Labor Relations Act (NLRA).  On the employers’ side is a series Circuit Court decisions, D.R. Horton v. NLRB (5th Cir. 2013); Owen v. Bristol Care, Inc. (8th Cir. 2013); Sutherland v. Ernst & Young LLP (2d Cir. 2013); and Richards v. Ernst & Young, LLP (9th Cir. 2013).  Each of those cases, to some degree, rejected the NLRB’s decision in D.R. Horton.

That field shifted dramatically on May 26, 2016.  In Lewis v. Epic Systems Corporation, the Court of Appeals for the Seventh Circuit held that an arbitration agreement that prohibited class and collective actions violates Section 7 of the NLRA and was therefore not enforceable.  [In a post dated February 2, 2016, I discussed a similar ruling by the Hon. Dolly M. Gee, a courageous federal judge.]  As the first Circuit Court to reach this holding, Lewis changed the legal landscape significantly in a manner that benefits workers. Continue reading

Many truckers in California work more than eight hours in a day or more than forty hours in a week.  Based on the number of hours they work, many drivers believe they are entitled to overtime pay, but are they right?  Maybe.  There are several factors that must be considered, such as 1) the route the trucker is driving; 2) the goods the trucker is transporting; and 3) the weight and length of the truck.

 

There are two sets of laws that can affect overtime compensation for truck drivers in California:  federal overtime law and California overtime law.
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I will be speaking at two conferences in Lausanne, Switzerland on May 27 and 27, 2016, along with a colleague, Todd Jackson, of Feinberg, Jackson, Worthman & Wasow.  We have been invited by a Swiss attorney and law professor, Bettina Kahil.  Professor Kahil audited our employment law course at Berkeley Law School in 2015. Continue reading

One of the big picture struggles playing out in federal courts is how much injury a plaintiff must suffer in order to have standing to sue under Article III of the U.S. Constitution.  This issue is important because many laws provide rights to employees that are procedural in nature.  For example, California Labor Code section 226 requires companies to provide certain information on an employee’s pay stub.  Similarly, California’s Investigative Consumer Reporting Agencies Act (ICRAA) requires that companies give notice before running a background check on an employee.  A heightened standing requirement could impact the ability of employees to pursue such claims in federal court.  Continue reading