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 nationally ranked employment litigator.  The Daily Journal has listed him as a Top Labor & Employment Attorney for three of the past four years (2011, 2013, and 2014), and he was recently selected by clients as a BTI Client Service Allstar.  In 2014, Legal 500 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.

Andrew serves as a member of the Board of Governors of the Boys and Girls Clubs of San Francisco.

Andrew Livingston

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.

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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.

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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.

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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

Are Employees Owed Pay for Going Through Security? SCOTUS Will Decide

The U.S. Supreme Court granted cert on March 3, 2014 in Integrity Staffing Solutions, Inc. v. Jesse Busk to resolve a federal circuit split on whether time employees spend in security screenings is compensable under the FLSA. The issue is whether security screenings are quintessential “preliminary” or “postliminary” activities that are non-compensable under the FLSA (as held by the Second and Eleventh Circuits) or whether time spent in security screenings is potentially compensable because it is “integral and indispensable” to an employee’s principal job duties (as held by the Ninth Circuit). Read More

Time’s Up: Supreme Court Upholds Enforcement of Claim Limitations in ERISA Plan Language

Christmas may have come a little early for plan administrators and companies looking for clarity in ERISA litigation. Last Monday, the U.S. Supreme Court ruled 9-0 in Heimeshoff v. Hartford Life & Accident Insurance Co. that contractual limitations provisions in ERISA plans are enforceable unless the time limitation is unreasonably short or is preempted by statute. Read More

A Midsummer Night’s Dream? Not So Much, For California Employers: Two New Employee-Friendly Bills Are Signed by Governor Brown

Even in the summer months, the California legislature is busy changing the laws that affect the state’s employers. This summer, California’s governor signed into law two bills that should be of interest to all employers—one amending the definition of sexual harassment under the Fair Employment and Housing Act (“FEHA”) and the other amending a provision of the California Labor relating to the award of attorneys‘ fees and costs in actions for the non-payment of wages. Read More

CAFA? Don’t mind if I do: Ninth Circuit Overturns Lowdermilk’s Legal Certainty Standard to Remove Class Actions Under CAFA

In a boon to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”), the Ninth Circuit has overturned a rule requiring defendants to show to a “legal certainty” that the jurisdictional amount in controversy is satisfied when a complaint alleges a lesser amount of damages. 

CAFA authorizes federal jurisdiction over civil class actions when the class has more than 100 members, there is minimal diversity, and the amount in controversy exceeds $5 million.  The claims of individual class members are aggregated to determine whether the jurisdictional threshold is met.  But until last week, Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007), required defendants to establish to a “legal certainty” that the amount in controversy exceeded $5 million in order to remove a case when a putative class action complaint alleged damages below that amount.  This rule allowed plaintiffs to avoid federal jurisdiction by artful pleading. Read More

Bark and Bite: Best Practices for Your Company’s Off-the-Clock Policy

Most employers maintain a written timekeeping policy stating that non-exempt employees should accurately record their time worked. Yet many employers are still facing class action lawsuits alleging off-the-clock claims. Below we detail some key practices companies may consider to strengthen their timekeeping policies and defend against off-the-clock claims.

  • Policy:  Maintain a timekeeping policy that makes the company’s expectations crystal clear, including that the company (1) does not tolerate off-the-clock work; (2) requires employees to immediately report policy violations to HR; and (3) disciplines (including terminates) employees who work off-the-clock or allow others to do so.
  • Training:  Train non-exempt employees and their managers on the timekeeping policy and keep records of the training completion.
  • Reminders:  Issue regular reminders regarding the timekeeping policy and/or post a reminder in the break room that employees are not allowed to work off-the-clock and must report policy violations.
  • Check-ins:  Have managers, HR and/or auditors periodically check in with employees to confirm they are not working off-the-clock.
  • Certification:  Require employees to certify or acknowledge that their time records are accurate. If the time records are inaccurate, require employees to immediately notify their manager or HR.
  • Take complaints seriously:  Thoroughly investigate complaints, discipline/terminate policy violators and pay for reported off-the-clock work.
  • Remote access:  Don’t give non-exempt employees remote access to company systems or e-mail, or make it clear that they must record any such remote access time.

Ninth Circuit Holds Employees Are Not Required To Allege a Request for “Suitable Seats” For Their Claims to Proceed

Last week in Green v. Bank of America Corp., No. 11.56365 (9th Cir. Feb. 13, 2012), the Ninth Circuit held that “suitable seats” lawsuits cannot be dismissed at the pleading stage based on an employee’s failure to allege that he or she requested suitable seating. The Ninth Circuit’s reversal raises significant questions regarding one of the more common employer defenses to the recent wave of “suitable seats” litigation based upon IWC Wage Order 7-2001.

Filed in April 2011, the plaintiffs in Green raised standard “suitable seats” allegations by claiming Bank of America failed to comply with the requirement of Section 14 of IWC Wage Order 7-2001 that employees be provided with “suitable seats when the nature of the work reasonably permits use of seats.” The district court granted Bank of America’s motion to dismiss, holding that the bank only needed to provide tellers access to seats if seats were requested. On appeal, the Ninth Circuit reversed, holding that the district court mistakenly assumed a requirement that employees allege that they requested seats where the text of the Wage Order does not expressly require such a request. The Court’s brief opinion also clarified that its reversal did not present an opinion on whether any seating provided to the employees was “suitable” or whether the nature of the work “reasonably permits use of seats” because these issues would be developed at the district court upon remand.

Though Green is confined to its context and should not be read to preclude employers from raising the defense of a failure to request suitable seating, it nonetheless raises the critical question of whether employers have an affirmative obligation to provide suitable seats in the absence of any employee requests. As more “suitable seats” lawsuits reach the summary judgment and trial stages, and as state appellate courts begin to take up the issue, employers should expect more clarity. In the meantime, employers should stay tuned for further updates regarding this rapidly changing area of employment law.