A new law exposes California businesses to potential liability for claims by temporary workers. 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. The effect of this new Labor Code provision is to make it more difficult for companies to argue that they are not joint employers and that workers are independent contractors in relation to wage claims and workers’ compensation claims.
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, Oracle and Sears in their most challenging and complex employment matters.
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.
Genentech. Joe recently 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.
Oracle. Joe defended Oracle and the Siebel Systems change-in-control severance plans in numerous ERISA arbitrations 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.
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
On July 17, 2013, the California Supreme Court denied review of the Second Appellate District’s decision in Gonzalez v. Downtown LA Motors, 2013 Cal. App. LEXIS 257 (Cal. App. 2d Dist. Mar. 6, 2013), which addressed minimum-wage requirements for piece-rate workers. The Court of Appeal held that the employer had to pay a separate hourly rate of at least minimum wage during work time when piece-rate employees are engaged in compensable activity that does not directly produce piece-rates. Read More
Ever have that feeling that your arbitrator just doesn’t understand you? You may be right, but there’s not much you can do about it. A recent unanimous ruling by the United States Supreme Court should encourage employers to review the language in their arbitration agreements to ensure clarity on the issue of class arbitration. In Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. at 4-5, 8-9 (U.S. June 10, 2013), the Supreme Court reiterated that parties who agree to arbitration and ask the arbitrator to decide an issue are stuck with the “good, bad, or ugly” decision of the arbitrator. Even where, as in this case, the arbitrator makes a dubious decision that the parties’ contract allows class arbitration, Federal Arbitration Act § 10(a)(4) does not allow a court to second-guess that decision.
Sutter, a pediatrician, and Oxford Health Plans, an insurance company, entered into a contract for services that included the following arbitration clause: “[n]o civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration . . . .” Id. at 1-2. Later, Sutter brought suit in state court on behalf of himself and a proposed class of other doctors alleging that Oxford Health Plans had violated their contracts and various state laws. Id. Upon Oxford Health Plans’ motion, the case was compelled to arbitration. Id. at 2. Critically, the parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and the arbitrator determined that, based on the terms of the clause quoted above, it did. See id. at 2, 3. Oxford Health Plans brought a motion in federal court arguing the arbitrator’s decision should be vacated on the ground that he had “exceeded [his] powers” under Federal Arbitration Act § 10(a)(4). Id. Read More
Twice in one week, the California Court of Appeal sided with employees in two cases against grocery giant, Safeway Inc. Read More
Earlier this month, the California Supreme Court issued a ruling clarifying details of the “mixed-motive” defense applicable to discrimination claims under the California Fair Employment and Housing Act (“FEHA”). Harris v. City of Santa Monica, Case No. S181004 (Cal. Feb. 7, 2013). The Harris opinion is undoubtedly positive news for employers and provides much-needed guidance to trial courts in California handling mixed-motive cases (i.e., cases where legitimate and illegitimate factors motivated the decision). Read More