The United States Supreme Court is now in session and three cases stand out on the docket that private employers will want to follow. While not the blockbusters heard during the Court’s last session, these cases will address important issues ranging from the proper interpretation of Sarbanes-Oxley Act’s whistleblower provision to the breadth of the President’s recess-appointment power to what constitutes “changing clothes” under the FLSA. Read More
Jessica R. Perry
Jessica R. Perry is an Employment Law and Litigation partner in the Silicon Valley office and serves as Deputy Leader of the firm's Litigation Business Unit. Jessica also serves as the Recruiting Partner for the Silicon Valley office.
Jessica has defended numerous class actions, collective actions, representative actions and multi-plaintiff actions under state and federal laws, including claims for overtime, minimum wage, vacation and personal days, meal and rest break penalties, reporting time wages, expense reimbursements, waiting-time penalties, Private Attorney General Act penalties, work uniform violations, discrimination, harassment and retaliation. Jessica has also successfully represented clients involved in investigations and audits by the Department of Labor and the California Division of Labor Standards Enforcement, and she assists clients in developing compensation policies and compliance measures designed to reduce potential exposure.
The following are some of Jessica's wage-and-hour representations.
- Fortune 100 Technology Company. Defeated class certification in a wage-and-hour class action alleging off-the-clock work by customer support agents; defeated class certification and won motion to deny certification in a wage-and-hour class action alleging rest break violations in client's retail stores.
- Electronic Arts. Defended California class actions and Florida collective action challenging the exempt status of computer graphic artists and engineers.
- Roche Laboratories. Obtained summary judgment and defeated class certification in a wage-and-hour class action challenging the exempt status of pharmaceutical representatives.
- Morgan Stanley. Obtained summary judgment and defeated class certification in wage-and-hour class action alleging compelled patronage in violation of California law and various Labor Code claims; won motion to dismiss in wage-and-hour class action alleging compelled patronage in violation of California law; defeated class certification in wage-and-hour class action challenging the exempt status of financial advisors, business expenses reimbursement practices, and sign on payment practices and certain non-solicit provisions.
- Gap. Defeated class certification in a wage-and-hour class action alleging compelled patronage and wage deductions under New York law.
- Old Navy. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers.
- Banana Republic. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers.
- Pottery Barn Kids. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers, meal and rest break violations, and waiting time penalties.
- Gymboree. Defeated collective certification in FLSA case in Florida challenging the exempt status of managers; obtained summary judgment on the exempt status of a retail manager.
- Fortune 100 Technology Company. Obtained summary judgment on gender and medical condition discrimination, harassment and retaliation claims brought by senior female sales manager.
- Fortune 100 Technology Company. Obtained summary judgment and sanctions under Federal Rule of Civil Procedure 11 on discrimination, harassment, Equal Pay Act and other tort claims.
- Advanced Micro Devices. Won a defense verdict in the high profile race and religious discrimination case Maghribi v. AMD.
Resolving a split among the circuits, the U.S. Supreme Court held that a “supervisor” for Title VII harassment liability is limited to those who have the power to take a tangible employment action against the alleged victim (e.g., hire, fire, demote, promote, transfer, or discipline). Merely overseeing and directing the alleged victim’s daily work is insufficient to meet this heightened standard. Read More
The U.S. Supreme Court held on Monday that a plaintiff alleging retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) must prove that retaliation was the “but-for” reason for an adverse employment decision. The mixed-motive analysis, whereby a plaintiff need only show that the illegal reason played a part in the decision, now no longer applies to retaliation cases. Read More
Lest there be any lingering confusion, the U.S. Supreme Court has once again reminded us that arbitration agreements are to be “rigorously enforced.” In this latest installment of pro-arbitration decisions from the high court, a majority of the justices (5-3) upheld a class arbitration waiver as enforceable even when the cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Although the decision arose in the antitrust context, the broad language in the opinion opens the door for enforcement of class action waivers in wage-and-hour class and collective actions where employers have included such waivers in their arbitration agreements with their employees. Read More
So far in 2013, three states (Arkansas, New Mexico and Utah) have passed new social media legislation restricting employer access to employees and job applicants’ personal social media accounts. We previously posted about social media legislation in California and other states here and here. Read More
The U.S. Supreme Court’s decision in Standard Fire Insurance Co. v. Knowles confirms that a plaintiff cannot avoid federal jurisdiction under the Class Action Fairness Act (“CAFA”) by stipulating that the class will seek less than CAFA’s $5 million amount in controversy threshold. Read More
Reversing a denial of a motion to compel arbitration in Parisi et al. v. Goldman, Sachs & Co. et al., the Second Circuit held that a plaintiff does not have a substantive right to bring a pattern and practice claim under Title VII. The plaintiff at issue in Parisi alleged gender discrimination under Title VII, seeking to bring her claims on behalf of herself and a putative class of female Goldman Sachs employees. During her employment, the plaintiff signed a broad arbitration agreement, which covered her discrimination claims and did not contain a provision providing for class-wide arbitration. Read More
Last week, the Sixth Circuit Court of Appeals reversed summary judgment orders in a Title VII sex discrimination case against Cintas Corporation, holding that the EEOC (the intervening plaintiff) should have been allowed to pursue a pattern-or-practice claim under §706 of Title VII using the analytical framework set forth in Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The decision rejects the notion that the Teamsters framework can only be used in cases brought under § 707 of Title VII, paving the way for the EEOC to pursue pattern-and-practice claims under § 706, which allows for the recovery of punitive and compensatory damages.
In Serrano et al. v. Cintas Corp., the EEOC challenged hiring practices used for women who applied to work as truck-driving sales representatives in Michigan. The district court dismissed the EEOC’s pattern-or-practice claim on the grounds that the agency pled the claim under § 706 rather than § 707, which provides specific authorization for such claims. The district court also granted summary judgment for Cintas on thirteen individual claims that the EEOC had pursued, analyzing them under the McDonnell-Douglas framework. Read More
The California Department of Industrial Relations (DIR) released its 2013 hourly rate and minimum salary requirement adjustment for exempt computer software employees. Beginning January 1, 2013, the minimum hourly rate of pay will increase to $39.90 to qualify for exemption, the minimum monthly salary will increase to $6,927.75, and the annual minimum salary will increase to $83,132.93. The 2.6 percent increase is based upon the California Consumer Price Index for Urban Wage Earners and Clerical Workers pursuant to California Labor Code § 515.5(a)(4).
In addition to the salary requirements, computer software employees must meet the remaining criteria set forth under Labor Code § 515.5 in order to be exempted from state overtime requirements.
A California Court of Appeal recently required a plaintiff to forego class and representative action claims in Nelsen v. Legacy Partners Residential, Inc., No. A132927 (Cal. App. July 18, 2012) finding that she failed to show the employer’s arbitration agreement was unconscionable or that compelling individual arbitration would violate state or federal law or public policy. Knocking down the attempt to keep class and representative claims alive in either a judicial or arbitration proceeding, the First Appellate District held that all of the plaintiff’s California Labor Code claims, as well her claim for injunctive relief, had to be arbitrated on an individual basis. Read More