On September 28, 2015, the Ninth Circuit held in Shukri Sakkab v. Luxottica Retail North America, Inc. that the FAA does not preempt the rule that the California Supreme Court enunciated in Iskanian v. CLS Transportation that California law bars the waiver of Private Attorneys General Act (“PAGA”) claims. As a result, California employers will likely see an increase in the filing of PAGA cases as employees use them as a vehicle for representative actions outside of arbitration.
Joseph C. Liburt
Joe Liburt is a Silicon Valley partner in Orrick's Employment Law and Litigation group, which was recently named Labor & Employment Department of the Year in California by The Recorder. This award by the premier source for legal news was in recognition of the group's significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Chambers USA has consistently recognized Joe as a top employment litigator. Joe has more than 20 years of experience representing standout companies such as Apple, Sears and Microsoft in their most challenging and complex employment matters.
Most recently, Joe was trial counsel on the team that obtained a complete defense verdict in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense national media scrutiny. Following six weeks of trial and three days of deliberations, a state court jury in San Francisco rejected all of plaintiff’s claims that she was passed over for promotion because of her gender and complaints about discrimination.
Class Actions. Joe has extensive class action expertise representing employers in retail, technology and manufacturing including Sears, Apple, International Paper, Juniper Networks and Home Depot. Joe has defeated class certification or obtained dismissal or summary judgment on the full range of wage and hour claims.
Individual Claims. Joe represents a broad range of employers in all types of cases. He has defended employers such as Apple, Microsoft, Genentech, NVIDIA, and the National Basketball Players Association in high-visibility matters.
ERISA & Benefits Litigation. Joe has litigated various ERISA and state law benefits claims for plans and sponsors including Oracle, Robert Half International, PricewaterhouseCoopers, and the University of California. Joe has special expertise in change-in-control severance claims.
Examples of Joe’s representative matters include:
Apple. Joe has represented Apple for 20+ years and successfully defended various single-plaintiff and class action cases.
Sears. Joe has repeatedly defeated class certification in wage-and-hour class actions for Sears. In another case, Joe obtained early dismissal of an assistant manager exemption misclassification class action through the purchase of the named plaintiff’s claims in bankruptcy court. In 2014, Joe persuaded two federal courts to reject the California Supreme Court's Iskanian decision and compel individual arbitration of representative PAGA claims.
Genentech. Joe represented Genentech in the trial of Cefalu v. Genentech, which resulted in a jury verdict in Genentech’'s favor on all claims, including disability discrimination, reasonable accommodation, interactive process, CFRA retaliation, and bonus wages.
Microsoft. Joe recently obtained summary judgment on all claims in a case alleging public policy wrongful termination, retaliation, defamation, interference with contract, fraud and intentional infliction of emotional distress.
Oracle. Joe defended Oracle in numerous ERISA arbitrations regarding change-in-control severance plans in which employees sought change-in-control benefits after Oracle acquired Siebel Systems.
L.L. Nunn Trust/Deep Springs College. Joe represents the dissenting Trustees of Deep Springs College seeking to protect the donor’s intent set forth in the charitable trust that governs the College.
Joe advises clients on a full range of employment issues, and has written articles, spoken and trained on various employment topics.
The California Supreme Court is poised to clarify what limits may apply to burdensome discovery demands in litigation under California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”), which allows employees to bring non-class representative actions against employers on behalf of themselves and other “aggrieved employees” for alleged violations of the Labor Code.
Emeryville will join San Francisco, Oakland and other cities across the nation that have enacted paid sick leave ordinances. On June 2, 2015, the city of Emeryville adopted its Minimum Wage and Paid Sick Leave Ordinance which goes into effect on July 1, 2015 (with enforcement starting July 2). Yes, you read that right: it goes into effect only a month after it was adopted! Read More
In Richey v. Autonation, Inc., issued January 29, 2015, the California Supreme Court reinstated an arbitration award against the plaintiff and confirmed that employers retain the right to terminate employees who violate company policy even while they are on a leave of absence under the California Family Rights Act (CFRA).
On September 28, 2014, Governor Brown signed into law AB 1897, which created California Labor Code § 2810.3. The new law requires companies who use workers provided by staffing agencies to “share with a labor contractor all civil legal responsibility and civil liability” for (1) the payment of wages and (2) the provision of workers’ compensation insurance.
A California appellate court recently held that employers are always required to reimburse employees for mandatory use of their personal cell phones, even if they do not incur any additional expense for doing so. The case is Cochran v. Schwan’s Home Services Inc., Court of Appeal of the State of California, Second Appellate District, Divisions Two, Case No. B247160 (August 12, 2014). A copy of the opinion can be found here.
An increasing number of cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background, giving momentum to the “ban the box” movement. The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions. Proponents of the movement say that such legislation will help remove unfair employment barriers to job applicants with criminal histories.
Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge. Read More
On March 7, 2014, Judge Feess of the Central District of California granted Defendant Starbucks’ motion for summary judgment on Plaintiff’s proposed class claims for unpaid wages under the California Labor Code. Plaintiff alleged that Starbucks failed to pay him for the brief time he spent closing the store after he clocked out at the end of every closing shift. His alleged off-the-clock closing duties included closing out of the store’s computer system, activating the alarm, walking out of store, locking the door, walking employees to their cars and staying with co-workers when they waited for rides. He also occasionally moved the store’s patio furniture inside and reopened the store for an employee who forgot personal belonging in the store. Read More
Trying to keep your illness and injury reports low profile? According to new rules proposed by the Occupational Safety and Health Administration (“OSHA”), not under their watch! At an estimated cost of $10.5 million per year to employers, OSHA’s three new proposed rules will impact approximately 480,000 employers by making their injury and illness records publicly available for the first time. See Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67273, 67275 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pt. 1904). Read More