On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report (General Counsel Memorandum GC 15-04) summarizing recent NLRB enforcement action regarding many common employment policies. The report is relevant to nearly all private employers, regardless of whether they have union represented employees. It is troubling because it finds that many seemingly innocuous, sensible employer handbook provisions and policies are unlawful because they could potentially be interpreted to chill employees’ rights to engage in concerted protected activity under the National Labor Relations Act.
Julie A. Totten
Julie Totten is the partner in charge of Orrick’s Sacramento Employment Law Group and leads a vibrant practice throughout the State of California.
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.
Julie represents employers in complex cases, including wage-and-hour class and collective actions, EEO claims and claims involving breach of contract and wrongful termination. She has also successfully represented clients involved in investigations and audits by the Department of Labor and the California Division of Labor Standards Enforcement, and she assists clients in developing compensation policies and compliance measures designed to reduce potential exposure. Julie also counsels and trains clients on a wide variety of employment law matters, including social media and employee privacy.
Some of Julie’s more notable engagements include the following:
- Fortune 100 Telecommunications Company. Julie defeated class certification in a wage-and-hour class action alleging off-the-clock work at the client’s California call centers.
- Global Fortune 200 Pharmaceutical Company. Julie obtained summary judgment for a pharmaceutical company in a wage-and-hour class action challenging the exempt status of pharmaceutical representatives.
- Global Eyewear Company. Julie represents a global eyewear retailer in several proposed California and nationwide wage-and-hour class and collective actions.
- Professional Services Firm. Julie represents a professional services firm in several class and collective actions challenging the exempt status of accountants and other entry-level professionals.
- Fortune 100 Financial Services Company. Julie successfully represented a financial services client in a wage-and-hour class action seeking reimbursement of alleged expenses incurred by loan officers.
- Pharmaceutical Company. Julie successfully represented a pharmaceutical client in a wage-and-hour class action challenging the validity of the defendant’s alternative workweek schedules and alleging failure to pay for all work performed.
On March 2, 2015, the SEC announced a whistleblower bounty award of between $475,000 and $575,000, its 15th under the Dodd-Frank whistleblower program. While the SEC’s order is scant on detail, it does disclose that the award will go to a corporate officer, making it the first award to go to an officer under the program. This award is in keeping with the SEC’s approach to demonstrate in the relatively small number of awards made to date that a broad range of individuals can get bounties for providing original information of corporate wrongdoing under Dodd-Frank.
Because of the way the statute is drafted and how courts have interpreted it, employers of current members of the Armed Forces and veterans can sometimes find themselves with unexpected legal exposure under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The statute imposes various obligations on employers with respect to members of the U.S. military returning to work and also prohibits discrimination against employees and potential employees based on their military service. As 2014 comes to a close, a couple of USERRA cases from this year remind employers of the intricacies of USERRA compliance.
On September 9, 2014, Governor Jerry Brown signed AB-2053, which mandates that certain California employers provide workforce bullying training in addition to already-required sexual harassment training and education. As a result, many California employers need to be prepared to expand their training programs to address abusive conduct beginning on January 1, 2015.
Following principles that federal courts have applied in similar cases under the Fair Labor Standards Act, a California appellate court recently confirmed that employers are not liable under the California Labor Code for off-the-clock work that occurs without the employer’s actual or constructive knowledge. In Jong v. Kaiser Found. Health Plan, Inc., the California Court of Appeal for the First District affirmed the trial court’s grant of summary judgment for the employer, holding that the employee failed to set forth sufficient evidence to demonstrate that the employer actually or constructively knew that the employee worked unrecorded overtime. Read More
Employment class action defendants in California who were hoping for an unequivocal statement that statistical sampling has no place in class actions are likely to be disappointed by today’s ruling in Duran v. U.S. Bank, N.A. The California Supreme Court cautiously left all avenues to certification open, stating that a “[s]tatistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions.” (Emphasis added.) But despair not! The bulk of the opinion agreed with the court of appeal in finding the trial court’s methods “profoundly flawed,” recognized the “thorny” issues of proof that arise in misclassification cases, and reaffirmed a court’s obligation to consider the manageability of individual issues in certifying a class action. The Court’s instructions to lower courts and litigants to determine – as an integral part of class certification – whether the case can be manageably tried are likely to aid employers in certification battles to come. Read More
The use of criminal background checks when hiring employees has become even more limited in San Francisco. On August 13, 2014, the recently passed Fair Chance Ordinance (Ordinance) becomes operative requiring employers doing business in San Francisco and employing 20 or more workers, regardless of location, to limit the use of an applicant’s criminal history. Read More
If you have employees in California, you are, no doubt, aware that California laws are constantly changing and have a tendency to sneak up on even the best companies. To help prepare you for the year ahead, here are five important questions employers should ask themselves to test whether they are ready for the key changes in 2014: Read More
As employers welcome a new group of eager interns to their offices this summer, employers may be thinking about the recent wave of class action lawsuits alleging that unpaid internships violate minimum wage and overtime laws. Should these claims be litigated on a classwide basis? Read More
A recent opinion by the Seventh Circuit holds that the standard for certifying a collective action under the FLSA is the same as the standard applied to a class action under Rule 23. In Espenscheid v. DirectSat USA, LLC, No. 12-1943 (7th Cir. Feb. 4, 2013), the court considered decertification by a Western District of Wisconsin District Court of more than 2,000 satellite technicians in an action alleging technicians did not receive overtime and were not compensated for certain hours. In analyzing the standard to apply in evaluating the decertification decision, the court contrasted the opt-in procedure of FLSA collective actions with the opt-out procedure of Rule 23 actions, as well as noted that the FLSA lacks “the kind of detailed procedural provisions found in Rule 23” that set forth the standard for certification. Read More