The adage that “there is no rest for the weary” is perhaps an all too familiar one for California employers. Although employers might have already spent the past few months implementing a host of new laws that took effect in early 2016, there has been less fanfare about the upcoming regulatory amendments under the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.) that go into effect April 1, 2016.
Jessica R. Perry
Jessica R. Perry, an employment partner and Deputy Leader of the firm's Litigation Business Unit, represents industry leaders in tech, retail and financial services in their most significant class, collective, representative and multi-plaintiff actions under state and federal laws.
Jessica’s discrimination, harassment and retaliation practice focuses largely on representing employers facing claims of discrimination and harassment on the basis of gender, race, disability and age, and other protected categories. Most recently, Jessica obtained a complete defense verdict in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case, recognized as a 2016 ‘Top Verdict’ by the Daily Journal. Following six weeks of trial and three days of deliberations, a state court jury in San Francisco rejected all of plaintiff’s claims that she was passed over for promotion because of her gender and complaints about discrimination.
Jessica leads a number of significant wage-and-hour class action matters, focusing on 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 and work uniform violations. In addition, she also has experience advising companies in the emerging sharing and gig economy on strategic business decisions including the classification of those providing services.
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 assists in the development of compensation policies and measures designed to reduce potential exposure.
Discrimination, harassment and retaliation claims
- AMD (Advanced Micro Devices). Won a complete defense verdict at trial in Maghribi v. AMD, a high-profile case alleging that AMD’s president and chairman engaged in discrimination on the basis of race and religion in the wake of the September 11th attacks. Maghribi, the former president of AMD’s flash division alleged that after AMD discovered he was Muslim and of Lebanese descent, it discriminated against him and wrongfully forced him to resign. The jury rejected all of the claims and found in favor of AMD in 84 minutes.
- Microsoft. Obtained summary judgment on claims of gender discrimination and harassment, disability discrimination and harassment, and retaliation brought by a senior female sales manager. Plaintiff argued that Microsoft’s internal investigation finding her harassment complaint meritorious was sufficient to overcome summary judgment, but the district court disagreed and adopted Microsoft’s position in full.
- Apple. Obtained summary judgment and sanctions under Federal Rule of Civil Procedure 11 on discrimination, harassment, Equal Pay Act and other tort claims.
- Chico’s. Defeated class certification in wage-and-hour class action alleging off-the-clock and meal break violations.
- Morgan Stanley. Won motion to dismiss unlawful deductions claims in multidistrict litigation in New Jersey, substantially limiting the exposure in the case and addressing issues of long-standing concern to the financial services industry; 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.
- Roche Laboratories. Obtained summary judgment and defeated class certification in a wage-and-hour class action challenging the exempt status of pharmaceutical representatives.
- Apple. 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 retail stores.
- Electronic Arts. Defended California class actions and Florida collective action challenging the exempt status of computer graphic artists and engineers.
- 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.
A recently filed petition for certiorari asks the U.S. Supreme Court to clarify the procedural requirements for ending private causes of action under the Fair Labor Standards Act (“FLSA”). Specifically, petitioner Dorian Cheeks is asking the Supreme Court to review a decision from the U.S. Court of Appeals for the Second Circuit holding that Federal Rule of Civil Procedure 41 (“FRCP 41”) prohibits the dismissal of FLSA claims through private, stipulated settlement agreements absent approval from either a federal district court or the U.S. Department of Labor (“DOL”).
California employers should keep an eye on a new challenge to arbitration provisions on its way to the Governor’s desk. On August 24, 2015, the California Senate passed AB 465, which would make it unlawful for any employer or other company to “require another person to waive any legal right, penalty, remedy, forum, or procedure for a violation of any provision of [the California Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.” The Senate version eliminates the originally proposed $10,000 per violation penalty, but continues to authorize an award of injunctive relief and attorneys’ fees to a prevailing plaintiff seeking to enforce the section. The Assembly concurred in the Senate’s amendments on August 27, 2015, and the bill will reach the Governor shortly.
On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA) plaintiff and the individual(s) promoted in lieu of the plaintiff creates a rebuttable presumption that the difference was insubstantial. The “rebuttable presumption” approach affords limited protection to an employer faced with an ADEA suit, and highlights the need for employers to implement appropriate policies and training to mitigate the risk of such claims.
On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation that purports to clarify on one of the most challenging legal questions facing employers today: are certain workers employees or independent contractors? Notably absent from the guidance, however, is any specific reference to workers who provide services through “on-demand” companies like Uber, Lyft, and Airbnb who use technology to deliver traditional services more efficiently by connecting consumers directly with service providers. This is surprising since it seems that the DOL’s renewed focus on misclassification has stemmed in large part from the slew of pending on-demand worker lawsuits in which the classification tests have proven very difficult to apply.
Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.
In a long awaited 9-0 decision, the U.S. Supreme Court held that employers are not required to compensate employees for time spent waiting for and undergoing security screenings (aka bag checks) under the Fair Labor Standards Act. It concluded that security screenings were noncompensable postliminary activities because they were not the “principal activities” the employees were employed to perform, nor were they “integral and indispensable” to those activities. The case is Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ____ (2014) and a copy of the opinion can be found here.
“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.
Following up on our recent post regarding pregnancy discrimination developments, the Equal Employment Opportunity Commission issued the Enforcement Guidance: Pregnancy Discrimination and Related Issues on July 14, 2014. This is the first comprehensive update of the EEOC’s guidance on discrimination against pregnant workers in thirty years, since its 1983 Compliance Manual chapter. One major development in the new Enforcement Guidance is that pregnancy discrimination claims are not limited to the current pregnancy under the PDA – they can be based on “past pregnancy, childbirth, or related medical conditions.” Thus, the EEOC will more likely find a causal connection between a past pregnancy and the challenged employment action if there is close timing between the two, however a longer time gap between the pregnancy and the challenged action will not foreclose a finding of pregnancy discrimination.