Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340 that a New York City tour guide’s Facebook postings constituted protected union organizing activities. The board held that New York Party Shuttle LLC unlawfully discharged Fred Pflantzer when it refused to give him new assignments after he posted Facebook messages criticizing the company’s employment practices. Read More
Christian N. Brown is a senior associate in the San Francisco office and a member of the Employment Group. He has a broad range of experience litigating employment disputes, with a specialization in the defense of large class actions.
Mr. Brown's experience includes managing cases in both state and federal court that involve claims for wage-and-hour violations, unfair competition, discrimination and retaliation. Mr. Brown also counsels employers on litigation avoidance, successfully defends results obtained for clients on appeal, and has prior experience with general commercial litigation, intellectual property disputes, and white collar criminal investigations and prosecutions.
Recent successes include:
- Defeating class certification in Coughlin v. Sears Holdings Corp., Central District of California Case No. CV 08-00015 CJC (RNBx), wherein plaintiffs sought to represent a class of all former employees in California on claims for unpaid vacation benefits and unfair competition.
- Working as part of the team that defeated class certification in Drake v. Morgan Stanley and Company, Inc., Central District of California Case No. CV 09-6467 ODW (RCx), a proposed class action alleging that the defendant misclassified stock brokers as exempt from overtime requirements.
- Defeating class certification in Ortega v. Sears, Roebuck and Co., Santa Barbara Superior Court Case No. 01264561, wherein plaintiff sought to represent all current and former service technicians on various wage/hour and unfair competition claims. Mr. Brown successfully defended the trial court's denial of class certification on appeal.
- Defeating a motion for a temporary restraining order that would have barred Orrick clients from developing applications for Apple's iPhone on the ground that the iPhone does not represent a "social networking platform" akin to Facebook or My Space.
The United States Supreme Court’s recent ruling in Comcast Corp. v. Behrend, Case No. 11-864 (March 27, 2013) reinforces class certification requirements as spelled out in Wal-Mart v. Dukes. However, the closely divided court (5-4) and a strong dissent underscore that the battle over class certification standards may be far from over. While Comcast involved antitrust claims, the Court’s decision has implications for all Rule 23 cases, including employment class actions. Read More
A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012.
In Noel Canning v. NLRB, F. 3d (D.C. Cir. Jan. 25, 2013), the D.C. Circuit held that President Obama lacked constitutional authority to use recess appointments to name three new members to the NLRB because the vacancies did not arise, and the appointments were not made, during a “Recess of the Senate,” which is defined as “the period between sessions that would end with the ensuing session of the Senate.” Slip op. at 18; 39-40. As a result, the court held that the NLRB lacked a quorum when it decided the underlying case, rendering its decision void ab initio.
The holding in Noel Canning raises questions about the viability of In re D.R. Horton, Inc., 357 NLRB 184 – 2012, one of the most widely discussed NLRB decisions of 2012. In D.R. Horton, the Board held that arbitration clauses that prohibit employees from pursuing class or collective actions violate employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. D.R. Horton’s appeal will be heard by the Fifth Circuit on February 4.
D.R. Horton was decided the day before President Obama made the recess appointments at issue in Noel Canning. However, Craig Becker, one of the three NLRB members who decided D.R. Horton, was the subject of an earlier recess appointment in 2010. D.R. Horton filed a letter with the Fifth Circuit on January 29, 2013, arguing that the holding in Noel Canning should be applied to Becker’s appointment and render the decision void. The Fifth Circuit is expected to address this issue together with D.R. Horton’s existing arguments during oral argument on February 4.
On October 10, 2012, a California Court of Appeal held that a wage and hour class action could not be certified where the common company-wide policy at issue did not answer the “central liability” question of the case.
The case, Morgan v. Wet Seal, Inc., was brought by former Wet Seal employees against the clothing store alleging that the company violated California law by requiring employees to 1) purchase Wet Seal clothing and merchandise as a condition of employment; and 2) travel between Wet Seal business locations without reimbursing them for mileage. The plaintiffs moved for class certification, pointing to written company policies as evidence of the common issues of fact and law that predominated over individual issues. Wet Seal opposed the plaintiff’s motion for class certification arguing, among other things, that their written policies actually undermined the plaintiff’s claims. The policies at issue specifically state that employees are not required to wear Wet Seal clothing and that employees may be eligible for reimbursement for mileage.
The Court of Appeal affirmed the trial court’s holding that the facially legal policies made it impossible to use a class-wide method of proving liability. For example, the Court explained that the plaintiffs’ dress code claims raised issues of 1) whether Wet Seal requires employees to wear the merchandise as a condition of employment; 2) whether the allegedly required attire constitutes a uniform; and 3) whether any given purchase by an employee constituted a “necessary expenditure.” Here, the Court found that the policy explicitly did not require wear and the policy’s description of the dress code as “consistent with the current fashion style that is reflected in the stores” was too broad and vague to constitute a “uniform” under the definition provided by the DLSE. Therefore, any question of liability would inevitably turn on what each Plaintiff was told, who told it to them, how they interpreted that information, whether the interpretation was reasonable and whether the employee then purchased merchandise pursuant to that conversation.
The Court of Appeal emphasized that the allegation of a companywide policy is not sufficient in and of itself to establish that common issues predominated because “there was no class wide method of proof for resolving this key liability question.” The anecdotal evidence provided in Plaintiffs’ declarations attempting to show a practice of requiring employees to purchase Wet Seal clothing as a uniform only reinforced the Court’s conclusion that liability would have to be decided on an individualized basis.
Last week, the Sixth Circuit Court of Appeals reversed summary judgment orders in a Title VII sex discrimination case against Cintas Corporation, holding that the EEOC (the intervening plaintiff) should have been allowed to pursue a pattern-or-practice claim under §706 of Title VII using the analytical framework set forth in Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The decision rejects the notion that the Teamsters framework can only be used in cases brought under § 707 of Title VII, paving the way for the EEOC to pursue pattern-and-practice claims under § 706, which allows for the recovery of punitive and compensatory damages.
In Serrano et al. v. Cintas Corp., the EEOC challenged hiring practices used for women who applied to work as truck-driving sales representatives in Michigan. The district court dismissed the EEOC’s pattern-or-practice claim on the grounds that the agency pled the claim under § 706 rather than § 707, which provides specific authorization for such claims. The district court also granted summary judgment for Cintas on thirteen individual claims that the EEOC had pursued, analyzing them under the McDonnell-Douglas framework. Read More
The California Department of Industrial Relations (DIR) released its 2013 hourly rate and minimum salary requirement adjustment for exempt computer software employees. Beginning January 1, 2013, the minimum hourly rate of pay will increase to $39.90 to qualify for exemption, the minimum monthly salary will increase to $6,927.75, and the annual minimum salary will increase to $83,132.93. The 2.6 percent increase is based upon the California Consumer Price Index for Urban Wage Earners and Clerical Workers pursuant to California Labor Code § 515.5(a)(4).
In addition to the salary requirements, computer software employees must meet the remaining criteria set forth under Labor Code § 515.5 in order to be exempted from state overtime requirements.
A California Court of Appeal recently required a plaintiff to forego class and representative action claims in Nelsen v. Legacy Partners Residential, Inc., No. A132927 (Cal. App. July 18, 2012) finding that she failed to show the employer’s arbitration agreement was unconscionable or that compelling individual arbitration would violate state or federal law or public policy. Knocking down the attempt to keep class and representative claims alive in either a judicial or arbitration proceeding, the First Appellate District held that all of the plaintiff’s California Labor Code claims, as well her claim for injunctive relief, had to be arbitrated on an individual basis. Read More
In the wake of the Supreme Court’s landmark decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (“Concepcion”), there has been a flurry of litigation pertaining to class action waiver provisions in employment arbitration agreements and, more generally, the permissibility of class arbitration. The results of this uptick in litigation have been decidedly mixed, particularly in the undisputed epicenters of post-Concepcion activity – California and New York. Several recent decisions exemplify the wide range of post-Concepcion activity, including Kilgore v. KeyBank Nat’l Assoc., 2012 WL 718344 (9th Cir. March 7, 2012), a decidedly pro-employer decision that is the first subject of our three-part series on “the good, the bad, and the ugly” of recent arbitration decisions.
Kilgore is a helpful example of a court applying Concepcion to a state law rule that would have otherwise prohibited arbitration. The question in Kilgore was whether, in light of Concepcion, the Federal Arbitration Act (“FAA”) pre-empted California’s “Broughton-Cruz” rule prohibiting arbitration of claims for public injunctive relief. The Court also considered whether the arbitration and class waiver provision at issue was unconscionable. Read More
This continues our series regarding the good, the bad, and the ugly of recent arbitration decisions. One of the more disappointing recent arbitration cases – Balasanyan, et al. v. Nordstrom, Inc., No. 3:11-cv-02609 (S.D. Cal. March 8, 2012) – adds a new wrinkle to the arbitration issue that could constrain employers wishing to take advantage of the post-Concepcion landscape.
In Balasanyan, the U.S. District Court for the Southern District of California invalidated a mandatory arbitration agreement containing a class action waiver on the ground that it constituted an impermissible communication with putative class members. In doing so, the Court did not distinguish or even address Concepcion, and instead relied on its own authority to control the proceedings in class action litigation – including by monitoring communications with putative class members. Balasanyan is thus notable for the unique basis on which it invalidated the arbitration agreement, which in turn presents a new issue for employers to consider when implementing or updating their arbitration agreements. Read More
The final installment of our series regarding the good, bad and ugly of recent arbitration decisions is – you guessed it – ugly. Jock v. Sterling Jewelers, Inc., 646 F. 3d 113 (2d Cir. 2011), a Second Circuit decision that the Supreme Court declined to review last month, is notable for its disappointing discussion of the Supreme Court’s 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010). In Stolt-Nielsen, the Supreme Court clarified that where an arbitration agreement is “silent” regarding the permissibility of class-wide arbitration, an arbitrator exceeds her authority if she imposes class arbitration on the parties. The Second Circuit’s discussion of Stolt-Nielsen, while dicta, is troublesome because of its extremely narrow view of when an arbitration agreement is “silent” on the issue of class-wide arbitration.
Sterling Jewelers, a putative class action asserting claims of gender discrimination, stemmed from an arbitrator’s determination that the defendant’s “RESOLVE” dispute resolution program did not prohibit the arbitration of plaintiffs’ claims on a class-wide basis. The arbitrator hinged her decision on the fact that the arbitration agreement (1) was drafted by the defendant and was a condition of the plaintiffs’ employment (and, therefore, was to be construed against the employer under applicable Ohio law); (2) contained no express prohibition of class-wide arbitration; and (3) gave the arbitrator “the power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction.” Given these facts, the arbitrator declined to read into the contract a prohibition on class arbitration, which in turn cleared the way for plaintiffs to move for certification of a class before the arbitrator. Notably, the arbitrator rendered her decision in Sterling Jewelers before the Supreme Court decided Stolt-Nielsen. Read More