The federal Fair Credit Reporting Act (FCRA) has created a flurry of class action complaints in recent years aimed at employers who fail to comply with the FCRA’s hyper-technical disclosure and consent requirements. However, a new class action against UPS reminds us that traditional FCRA claims have not faded away and employers should remain mindful of the Act’s requirements. READ MORE
Jessica R. L. James
Jessica's practice involves employment litigation on a variety of legal issues, including defense of class action and single-plaintiff claims of discrimination, harassment, wrongful termination, misclassification, and wage-and-hour violations. She has experience counseling companies regarding pay equity and compensation analysis, including with respect to OFCCP and other EEO audits, as well as independent contractor classification issues.
Jessica's experience also includes business litigation on issues beyond the employment context, relating to white collar criminal defense, corporate investigations, and complex commercial litigation.
Prior to joining Orrick, Jessica served for two years as a judicial clerk for the Nevada Supreme Court. As a clerk, Jessica researched and drafted opinions resolving complex civil litigation, including issues of employment, corporate, privacy, and administrative law.Jessica earned her J.D. from the University of the Pacific, McGeorge School of Law, where she was Editor-in-Chief of the McGeorge Law Review and graduated Order of the Coif. While at McGeorge, she also served as a judicial extern for the California Court of Appeal, Third Appellate District. Array
Posts by: Jessica R. L. James
California’s resistance to the longstanding federal policy favoring arbitration frequently results in public expressions of frustration by the justices of the U.S. Supreme Court. In over five years since the Supreme Court’s broad directives in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), recent California decisions, including our recent coverage of the California Supreme Court’s holding in Sandquist v. Lebo, Case No. S220812, 2016 WL 4045008 (Cal. July 28, 2016), suggest that the state’s stubbornness may be waning, at least for the time being. The following summarizes key decisions that diverge from California’s traditional resistance to arbitration and which every employer should have in their arsenal of tools.
Paid sick leave is on the rise, as we reported here, here, here, and here. As we approach the one-year compliance anniversary for state-mandated paid sick leave, employers now face additional compliance wrinkles in the Los Angeles and San Diego markets. Earlier this month, both Los Angeles and San Diego passed paid sick leave and minimum wage ordinances that take effect (and require compliance) as soon July 2016.
On May 16, 2016, the U.S. Supreme Court issued an opinion in the closely watched case Spokeo, Inc. v. Thomas Robins et al., addressing the issue of standing under the Fair Credit Reporting Act (FCRA). The Court held that in order to establish standing to sue, plaintiffs must show “an invasion of a legally protected interest” that is both “particularized and concrete.” In doing so, the Court vacated the Ninth Circuit’s prior holding that a consumer has standing under Article III to bring an action for statutory violations without alleging actual injury. See Spokeo Inc. v. Thomas Robins et al., case number 13-1339.
Spokeo operates a “people search engine” that provides information on contact data, marital status, age, occupation, and wealth level. In June 2013, the Federal Trade Commission (FTC) fined Spokeo for selling consumer profiles to potential employers without fulfilling its reporting obligations under the FCRA. The FTC’s pursuit of Spokeo, a non-traditional consumer reporting agency (CRA), signaled a more expansive application of FCRA provisions at that time, and set the groundwork for a civil action on related claims.
Thomas Robins subsequently brought action against Spokeo, alleging “willful violations” of the FCRA, which he claimed resulted in publication of inaccurate information about his job and wealth level that caused him psychological harm while struggling to find work. The district court dismissed the case, finding that Robins had failed to plead an injury-in-fact that could be traced to Spokeo. In February 2014, the Ninth Circuit reversed, holding that a showing of actual harm is not required for willful FCRA violations and that the suit could go forward under Article III without alleging actual injury.
In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled. Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016). This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.
The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.” As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.
As the world reels in the wake of last month’s shocking crash of Germanwings Flight 9525 in France, many are questioning what, if anything, the airline should—or could—have done to prevent the tragedy. These questions necessarily touch on important issues about what an employer is permitted to address in pre- and post-employment medical screenings concerning an employee’s mental health.