Andrew R. Livingston

Partner
Employment Law
Read full biography at www.orrick.com

Andrew Livingston, a partner in the San Francisco office, is the Deputy Practice Group Leader of Orrick’s Global Employment Law Group. Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.

Andrew is a highly regarded trial lawyer.  The Daily Journal has listed him as a Top Labor & Employment Attorney a number of times, and he has been selected as a BTI Client Service Allstar.  Legal 500 has recognized Andrew as a "very effective courtroom advocate who connects well with jurors" and noted that he is "exceptional in his ability to organize complex factual and legal arguments into a simple and persuasive presentation." 

Andrew represents clients in a wide variety of industries, but specifically focuses on financial services, retail, technology, and advertising. 

He has an extensive class- and collective-action practice. He routinely defends employers in such cases in state and federal courts, particularly in cases alleging violations of the wage-and-hour laws.  Andrew also defends employers in numerous other types of cases, such as those related to restrictive covenants and trade secrets, wrongful termination, discrimination, harassment and retaliation.

Andrew regularly appears in state and federal courts, both at the trial and appellate levels, and he has substantial jury trial experience. He has significant experience mediating and arbitrating employment disputes, as well as handling employment matters before administrative agencies. His counseling work includes providing employment advice to management, designing appropriate workplace policies and training managers and other employees.

Andrew is a frequent speaker at employment seminars and programs for a variety of organizations such as the California Employment Law Council, CEB, PLI, NELI, Bridgeport, and Lorman. Recent speech topics include wage-and-hour developments, arbitration, class-action litigation, Supreme Court updates, and termination of employment.

For more than a decade, Andrew served as a member of the Board of Governors of the Boys and Girls Clubs of San Francisco.

Andrew Livingston

Despite Veteran-Friendly Construction, Liability Under USERRA’s Anti-Discrimination Provisions Still Requires Adverse Employment Action

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to work after a period of service in the U.S. military.  With a large number of service members currently deployed and increased intervention against ISIS potentially enlarging these numbers, employers’ treatment of employees who are members of the military continues to remain an important issue.

Read More

Pennsylvania Plaintiffs Launch Successful Attack on Pittsburgh’s Local Paid Sick Leave

The proliferation of paid sick leave (PSL) laws has been well-documented in the last few years.  California’s PSL statute has received particular attention in this blog, but Connecticut, Massachusetts, and Oregon have also adopted similar state-wide legislation.  And it is not just the states that are rolling out requirements for PSL; dozens of cities and counties have also adopted PSL ordinances (oftentimes in states that already have similar laws in place).  Major municipal adopters include New York City, San Francisco, Washington, D.C., Seattle, Newark, and Philadelphia.

Read More

Managing PAGA Claims: A Recent Decision Points the Way to Defeat Representative Actions

A recent federal court decision illustrates how defendants may be able to defeat PAGA claims in California.  Brown v. American Airlines, Inc., No. CV 10-8431-AG (PJWx), 2015 WL 6735217 (C.D. Cal. Oct. 5, 2015) is the latest case to dismiss PAGA claims based on the presence of numerous individualized issues that render the case unmanageable.  This decision provides hope for employers in the face of rulings by the California Supreme Court and certain federal district courts that PAGA actions need not meet class certification requirements.

Read More

Not All Class Actions Are Created Equal Under CAFA, Says the Ninth Circuit

The Ninth Circuit recently delivered a setback to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”) when it interpreted the statute narrowly to exclude consideration of non-class claims in determining the jurisdictional amount in controversy in Yocupicio v. PAE Grp., LLC, No. 15-55878, 2015 WL 4568722 (9th Cir. 2015).

Read More

Is Supervisor-Induced Stress a Protected Disability? California Appellate Court Says No

Employers often encounter challenging questions regarding their duty to accommodate employees who are diagnosed with stress, anxiety, or other mental health conditions that allegedly impact job performance absent accommodation.  But what if an employee claims that the stress of working with a particular supervisor is disabling, and that a transfer is the only reasonable accommodation?  The California Court of Appeal has provided some measure of clarity, in a recent opinion holding that anxiety and stress claimed by an employee as a result of working under a particular supervisor does not constitute a disability under California’s Fair Employment and Housing Act (FEHA).  Higgins-Williams v. Sutter Med. Found., Case No. C073677 (May 26, 2015).

Read More

Splitting the Baby: SCOTUS Ruling in Pregnancy Discrimination Suit Calls For Review of Pregnancy Accommodations

On March 25, 2015, the U.S. Supreme Court issued a decision in Young v. United Parcel Service, Inc., holding that the Pregnancy Discrimination Act (PDA) requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to perform their job duties.

Read More

IRS Announces That It Will No Longer Refund FICA Taxes on Severance Payments

The IRS recently announced that severance payments are taxable wages under FICA, and thus employers who seek tax refunds on those payments will be denied.  The IRS’s position reflects the United States Supreme Court’s ruling in United States v. Quality Stores, Inc., issued in March of last year.

Read More

Franchisors Beware: NLRB Seeking to Super-Size Joint Employer Liability

The National Labor Relations Board’s (“NLRB”) General Counsel’s Office has again signaled its commitment to expanding the scope of the current test for joint employment. In a move that could have implications for a broad array of franchise relationships, on December 19, 2014, the General Counsel of the NLRB announced that it has issued complaints against both McDonald’s franchisees and McDonald’s USA, the franchisor, as a joint employer. The decision to name McDonald’s as a respondent is consistent with the General Counsel’s recent advocacy that the current joint employment standard is too narrow.

Read More

Domino’s Delivers Key Ruling in Favor of Franchisors

The California Supreme Court recently issued an important victory for franchisors, finding that a franchisor does not stand in an employment or agency relationship with the franchisee and its employees for purposes of holding the franchisor vicariously liable.

Read More

Ending in a Draw: In Iskanian v. CLS Transportation, the California Supreme Court Upholds Class Action Waivers in Arbitration Agreements, But Also Makes PAGA Claims Unwaivable

Ever since the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, California employers hoped this day would come. In a predictable result, the California Supreme Court today acknowledged that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court overruled its 2007 decision in Gentry v. Superior Court which effectively had barred class action waivers for wage and hour cases. But the Court’s 6-1 plurality decision also bolstered an alternate method for bringing Labor Code claims in court by declaring that actions brought under the Private Attorneys General Act (Labor Code § 2968 et seq.) are not waivable by private agreement and thus not subject to compelled arbitration. Read More