As employers well know, the Fair Labor Standards Act (“FLSA”) permits employees to file suits on behalf of themselves and others who are “similarly situated.” 29 U.S.C. 216(b). In practice, this often means large employers find themselves defending against a single or handful of employees attempting to certify a collective action that includes hundreds or thousands of employees nationwide. Many times, the collective group includes employees in states where the plaintiffs have never worked. However, as a NY federal court recently reminded us, while plaintiffs’ evidentiary burden is not onerous at this stage, lack of knowledge about the employees in other states continues to be an obstacle for plaintiffs in obtaining conditional certification. On the opposite side of the coin, this failure of evidence can be utilized by defendant employers to narrow the proposed collective group or altogether prevent the conditional certification of a collective action. READ MORE
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.Jim represents employers on a broad range of employment matters, including whistleblowing, discrimination, retaliation and wrongful termination matters. He has extensive experience handling matters involving misappropriation of trade secrets and the enforcement of non-competition and non-solicitation agreements. He also regularly defends financial services firms in employment-related arbitrations before the AAA, JAMS and FINRA. Jim is routinely engaged by public and private companies to conduct internal investigations.
Jim's notable engagements include:
- Complex Discrimination Litigation. Jim successfully defended Wyeth/Pfizer in connection with eight related race discrimination cases filed in federal court, obtaining summary judgment in seven cases and obtaining a complete defense verdict following a two-week jury trial in one of the cases. He also successfully argued several of these cases on appeal to the United States Court of Appeals for the Second Circuit.
- Whistleblower Defense. Jim has successfully defended employers against Sarbanes-Oxley and other whistleblower and retaliation claims, including representing Wyeth/Pfizer in Livingston v. Wyeth, which was the first U.S. Court of Appeals decision on what constitutes protected activity under the whistleblower provisions of Sarbanes-Oxley.
- Employment Arbitrations for Financial Services Industry Employers. Jim has successfully tried a number of employment arbitrations for financial services industry employers before FINRA and AAA.
Posts by: James McQuade
Recently, in Augustus v. ABM Security Services, Inc., the California Supreme Court upheld a $90 million award of statutory damages, interest, and penalties against an employer who required employees to remain on-call during rest periods, despite no evidence showing that any employee’s rest period was ever actually interrupted. This holding has significant implications statewide, and employers in California should promptly review their rest break policies to ensure full compliance. READ MORE
On September 25, 2016, California Governor Jerry Brown signed S.B. 1241 into law, prohibiting employers doing business in the Golden State from requiring California employees, as a condition of employment, to agree to non-California choice-of-law or venue provisions for claims arising in California, either in litigation or arbitration. Such provisions are frequently found in employment, arbitration, or non-compete agreements. The new law will be codified as California Labor Code section 925, and will apply to contracts entered into, modified, or extended on or after January 1, 2017.
As California employers adjust to recent amendments to the state’s Equal Pay Act, additional changes are looming. As we reported here, last year, California adopted the Fair Pay Act, which provides new pay equity provisions related to employees of the opposite sex. Those amendments took effect on January 1, 2016. Now, California lawmakers are setting their sights on pay disparities based on race and ethnicity. On February 16, 2016, California Senator Isadore Hall III (D-South Bay) introduced Senate Bill 1063, known as the Wage Equality Act of 2016 (“SB 1063”), which seeks to expand pay equity requirements beyond sex to include race and ethnicity.
On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
On May 28, 2015, the Sixth Circuit in Rhinehimer v. U.S. Bancorp Investments, Inc. affirmed a $250,000 jury verdict in favor of a former financial advisor for U.S. Bancorp Investments (“USBII”) who alleged that he had been terminated in violation of the Sarbanes-Oxley Act (“SOX”) whistleblower provisions. In doing so, the Sixth Circuit rejected the “definitively and specifically” standard for proving protected activity under SOX and abrogated its prior SOX decision in Riddle v. First Tennessee Bank Nat’l Assoc., 497 F. App’x 588 (6th Cir. 2012) to the extent it relied upon the standard.
Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California. Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.
As employers in New York were gearing up for distribution of the annual wage notices in January 2015, Governor Andrew Cuomo finally signed the amendment to New York’s Wage Theft Prevention Act that was passed by the legislature back in June and repeals the annual wage notification provision. While the other amendments to the Act will not take effect for 60 days, the Governor’s December 29, 2014 signing statement and the New York Department of Labor make clear that employers are not required to distribute wage notices to their employees this January. The amendment, however, does not relieve employers of their obligation to provide all newly hired employees with wage notices at the time of hiring. In addition, although not specifically addressed in the amendment to the Act, it would be prudent for employers to distribute a revised wage notice when an employee receives a new position with a different compensation structure during his or her tenure with the employer.
The Supreme Court is set to weigh in on several key questions for employers this term related to employee discrimination. When does an employer have to accommodate a pregnant employee? How about a job applicant who wears a head scarf in an interview but does not make it clear she is doing so for religious reasons and needs an accommodation? Can a court decide whether the EEOC has done enough to resolve your case? Here are three key EEO cases to keep your eye on in the coming months. READ MORE
Last Tuesday, a Magistrate Judge in the United States District Court for the Southern District of New York granted partial class certification in a case where plaintiffs allege that the United States Census Bureau used arrest records to screen out job applicants, thereby transferring disparities in arrest and conviction rates for African-Americans and Latinos into the agency’s hiring practices and setting up hurdles to employment that disproportionately affected these groups in violation of Title VII. READ MORE