Joe Liburt is a partner in the firm’s Employment Law Group practicing in Silicon Valley. Joe is well-known for collaborating with clients on creative strategies designed to achieve the best result as efficiently as possible.
Class Actions. Joe has extensive class action expertise, having defended 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:
Otten v. Apple (discrimination and breach of contract arising out of reduction in force; summary judgment on all claims, affirmed on appeal, 2006 WL 438660)
Levitan v. Apple (breach of contract, fraud and negligence; summary judgment on all claims, affirmed on appeal, 2003 WL 1914274)
Maria v. Apple (defeated class certification in wage-and-hour class action).
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).
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 and spoken and trained on various employment and ERISA topics.
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
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
On April 12, 2012, the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) issued a critical decision regarding break and off-the-clock class claims and the standards governing an employer’s obligation to provide breaks under California law. Since the Supreme Court issued its opinion, employers have been eagerly awaiting its application by the lower courts in determining the suitability of class treatment for break and off-the-clock claims. Below is a brief summary of post-Brinker class certification decisions that are helpful to employers.
Benton v. Tanintco, BC349267, Los Angeles County Superior Court: On May 2, Judge Wiley denied certification to a class of technicians who were allegedly misclassified as independent contractors. The court found that individualized issues predominated on the break and overtime claims and that there was no single way to determine liability. The court noted that there were no uniform break or overtime policies and that the declarations the employer submitted demonstrated that workplace experiences varied drastically. The court further stated that the plaintiff’s 43 “substantively identical…lawyer-drafted” declarations should be taken “with a grain of salt” and that at most, they established similar work conditions for only 6% of the putative class. Judge Wiley also reiterated that the Brinker concurrence, which only commanded two votes, is not the law.
Kimani v. Healthcare Investments, Inc., Case No. BC432360, Los Angeles County Superior Court: On May 11, Judge Strobel denied certification to a class of nurses on plaintiffs’ claim that the nurses were not provided a second meal break when working double shifts. The court had previously denied certification of plaintiffs’ overtime, first meal break and rest break claims. In analyzing the remaining double shift/second meal break claim and the derivative wage statement, final pay, unpaid wages and penalties claims, the court cited Brinker and found that determining liability would require individualized inquiries as to each class member and each double shift worked. Accordingly, individualized issues predominated, rendering class treatment inappropriate.
Peters v. Wells Fargo Bank NA, Case No. BC429408, Los Angeles County Superior Court: On June 20, citing Brinker, Judge Palazuelos denied certification of a class of personal bankers, finding that without a classwide policy impacting overtime and breaks, individualized issues predominated on plaintiff’s break and overtime claims and related off-the-clock allegations.
After granting review of Brinker, the California Supreme Court also granted review of many other class certification decisions involving break claims. See Brinkley v. Public Storage, Inc., Tien v. Tenet Healthcare, Inc., Hernandez v. Chipotle Mexican Grill, Inc., Faulkinbury v. Boyd & Assoc., Bradley v. Networkers Int’l LLC, Brookler v. Radioshack Corp. and Flores v. Lamps Plus. These cases are in the process of being sent back to the appellate courts for reanalysis in light of Brinker and we can expect decisions on these cases in the coming months.
There is a new OSHA Whistleblower Protection Program Web site. The site includes SOX complaint and outcome statistics at OSHA, as well as statistics for all of the other whistleblower statutes administered by OSHA. Here is a link to the statistics OSHA is tracking.
Current data on the site runs through 3/31/12 (Q2 of FY2012). So far this year there has been a slight uptick in SOX complaints compared to last year, but not by much, and not yet approaching complaint levels from prior years (2005-2010). According to the statistics, there have been zero merits findings for SOX complainants in OSHA investigations so far in FY2012, and there were only 2 such findings in FY 2011.
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