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
Joseph C. Liburt
Joe Liburt is a partner in the firm’s employment law group practicing in Silicon Valley. 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.
Joe is well-known for collaborating with clients on creative strategies designed to achieve the best and most efficient result.
Class Actions. Joe has extensive class action expertise, having defeated class certification or obtained dismissal or summary judgment on claims for overtime (exemption, off-the-clock, OT rate calculation), minimum wage, vacation and personal days, meal and rest breaks, reporting time and split shift, timeclock rounding, expense reimbursements, waiting-time penalties, Private Attorney General Act penalties, work uniform violations, failure to provide tools, discrimination, harassment and retaliation.
Individual Claims. Joe has successfully defended a variety of individual plaintiff claims, including discrimination, harassment, retaliation, wrongful termination, defamation, interference with contract, infliction of emotional distress, invasion of privacy and breach of contract. Joe has also successfully defended reductions-in-force from claims of discrimination, retaliation, and retaliation for exercising NLRA organizing rights.
ERISA & Benefits Litigation. Joe has litigated various ERISA and state law benefits claims, including claims for benefits, breach of fiduciary duty, retaliation and interference. These ERISA claims have arisen in various circumstances, including pension benefits, disability benefits, executives seeking severance benefits pursuant to change-in-control agreements after company mergers, and employees claiming wrongful termination to prevent benefits from vesting.
The following are some of Joe’s more notable representations:
Apple. Joe has represented Apple for 20 years and successfully defended various single-plaintiff and class action cases, including the following, (discrimination and breach of contract arising out of reduction in force; summary judgment on all claims, affirmed on appeal, 2006 WL 438660)
- Maria v. Apple (defeated class certification in wage-and-hour class action). 2009.
- Otten v. Apple
- Levitan v. Apple (breach of contract, fraud and negligence; summary judgment on all claims, affirmed on appeal, 2003 WL 1914274)
Sears. Joe has represented Sears in numerous wage-and-hour class actions, including:
- Casida & Galvan v. Sears, 2012 WL 3260423, adopted in full, 2012 WL 3763621 (defeated class certification on all claims -- overtime based on assistant manager exemption misclassification and related claims).
- Ortega v. Sears (defeated class certification on all claims -- off-the-clock overtime, minimum wage, tools and uniform reimbursement, itemized wage statements and waiting time penalties -- affirmed on appeal, 2011 WL 1991957)
- Coughlin v. Sears, 2010 WL 4403089 (defeated class certification on all claims -- vacation, personal days and waiting time penalties).
- Rodriguez v. Sears (obtained early dismissal of assistant manager exemption misclassification class action through purchase of named plaintiff’s claims in bankruptcy court). 2011.
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. 2012.
Oracle. Joe represented Oracle and the Siebel Systems change-in-control severance plans in numerous arbitrations concerning claims for change-in-control benefits under ERISA, including Cleveland et al. v. Oracle et al., 2009 WL 5249825 (summary judgment on senior executive benefit claims).
International Paper. Joe has represented International Paper in several individual plaintiff discrimination and wage-and-hour class action matters, including Borba v. International Paper (discrimination and retaliation, summary judgment on all claims, affirmed on appeal, 217 F.3d 844, 2000 WL 521653).
IBM. Joe obtained summary judgment in Mah v. IBM, defeating numerous discrimination, wrongful termination and ERISA retaliation claims.
L.L. Nunn Trust/Deep Springs College. Joe currently 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.
Overall, Joe advises clients on a full range of employment issues, including employee performance and termination, wage-and-hour, privacy, background checks and the Fair Credit Reporting Act (FCRA), ERISA claims administration, independent contractor, joint employment and numerous other employment issues.
Joe has written articles, spoken and trained on various employment and ERISA topics.
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
Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most significant changes are discussed below. Read More
Earlier this month, the U.S. Supreme Court began a new term that is anticipated to include decisions on hot-button issues such as affirmative action, same-sex marriage and national security. The Court will also hear several significant cases in the employment context Read More
In a July 30, 2012 decision the Second Appellate District of the Court of Appeal ruled that an employee was not bound by the arbitration clause in his employee handbook for a slew of reasons:
- the clause itself was buried (or as the Court said “not specifically highlighted”) in a lengthy handbook and was not called to the employee’s attention;
- the employee did not specifically acknowledge the clause or agree to arbitrate, but merely signed an acknowledgment of receipt of the handbook itself;
- the handbook contained a (relatively) standard clause that it was not intended to create a contract but, the employer also “had it both ways” and retained the rights to unilaterally amend the handbook’s provisions;
- the employer failed to provide the employee with the specific arbitration rules; and
- the clause itself was found unconscionable: procedurally, because the employer did not distribute the rules governing the arbitration to employees and because the issue of arbitration was not negotiable and, substantively, because it required the employee to relinquish administrative and judicial rights and made no express provision for discovery rights.
While this decision points out the pitfalls of this particular factual scenario, it also highlights some nuances. As courts reinvigorate their scrutiny of arbitration clauses and agreements, due to what this Court called “the increasing phenomenon of depriving employees of the right to a judicial forum,” employers may want to revisit and revise their handbook language.
The California Supreme Court recently clarified the extent of the attorney work product privilege under California law regarding recorded witness statements and the identities of witness interviewed by counsel, resolving a split of authority in the court of appeal. In Coito v. Superior Court, et al., Case No. S181712 (June 25, 2012), the court held that recorded witness statements—including statements made to an attorney’s agent at the direction of an attorney—are entitled to at least a qualified work product protection as a matter of law, and may be entitled to absolute protection upon proper showing. Furthermore, the court held that the identity of witnesses from whom counsel have obtained statements is not entitled to automatic work product protection as a matter of law, but may be entitled to the work product privilege upon proper showing. Read More
The California Court of Appeal has affirmed a trial court’s order denying class certification on the alleged misclassification of independent contractors. The Court of Appeal provides a lengthy analysis of ascertainability and predominance of common issues of law and fact under California’s class action laws. Read More