With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. Read More
Ms. Jacoby is a senior associate in Orrick’s San Francisco office and is a member of the Employment Group.
Ms. Jacoby has substantial employment litigation experience, and has defended discrimination, harassment, whistleblowing and wrongful termination claims on behalf of public and private entities in a range of industries.
As a second chair in an Alameda County superior court jury trial, she obtained a complete defense verdict in a wrongful termination lawsuit in October of 2011.
Ms. Jacoby has argued dispositive motions in state and federal court as well as in arbitrations, and has achieved excellent client results in mediations before a variety of neutrals. She has extensive class action litigation experience, including expert witness depositions, and has achieved class certification denials relating to misclassification and meal and rest break claims in the financial industry. She has also drafted successful appellate briefs relating to individual and class claims.
In addition to litigation, Ms. Jacoby advises clients on wage-and-hour issues, conducts trainings and leads workplace investigations.
Before joining Orrick, Ms. Jacoby was an associate at Heller Ehrman LLP. Prior to law school, Ms. Jacoby worked as an associate analyst in the Law and Public Policy area of Abt Associates, and was a research assistant at the Federal Judicial Center’s Research Division.
Even in the summer months, the California legislature is busy changing the laws that affect the state’s employers. This summer, California’s governor signed into law two bills that should be of interest to all employers—one amending the definition of sexual harassment under the Fair Employment and Housing Act (“FEHA”) and the other amending a provision of the California Labor relating to the award of attorneys‘ fees and costs in actions for the non-payment of wages. Read More
In a boon to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”), the Ninth Circuit has overturned a rule requiring defendants to show to a “legal certainty” that the jurisdictional amount in controversy is satisfied when a complaint alleges a lesser amount of damages.
CAFA authorizes federal jurisdiction over civil class actions when the class has more than 100 members, there is minimal diversity, and the amount in controversy exceeds $5 million. The claims of individual class members are aggregated to determine whether the jurisdictional threshold is met. But until last week, Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007), required defendants to establish to a “legal certainty” that the amount in controversy exceeded $5 million in order to remove a case when a putative class action complaint alleged damages below that amount. This rule allowed plaintiffs to avoid federal jurisdiction by artful pleading. 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
Can the EEOC require employers to hire convicted criminals? Last April, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a policy guideline that calls into question the extent to which employers can incorporate a check of criminal records into a hiring decision without risking legal liability. Read More
In a case of first impression, the Second Appellate District in California, recently took an expansive view of pregnancy leave rights for employees. Under California’s Pregnancy Disability Leave Law (“PDLL”), employees disabled by pregnancy are entitled to up to four months of job-protected leave. Under the California Family Rights Act (“CFRA”), employees may take leave up to 12 weeks for baby bonding. CFRA, however, does not include pregnancy disability as a “serious health condition,” which means that employees cannot begin to use their CFRA leave until after the child is born. Pregnant employees who need additional leave beyond the four months provided by the PDLL, but before their CFRA leave begins, are now explicitly protected by the Fair Employment and Housing Act (“FEHA”). Read More
On December 10, 2012, in Veronese v. Lucasfilm Ltd., a California Court of Appeal overturned a Marin County jury’s verdict against Lucasfilm based on its finding that several errors in jury instructions prejudicially affected the verdict. Plaintiff had sued under the Fair Employment and Housing Act (“FEHA”) for pregnancy discrimination and related claims when she accepted, but did not start, in a temporary position at Lucasfilm. After eleven days of testimony and three days of deliberation, a jury awarded Veronese a total of $113,800 in damages and the trial court awarded Veronese $1,157,411 in attorneys’ fees. Lucasfilm challenged both the judgment and the fee award. Lucasfilm argued that the trial court judge erred in giving certain instructions proposed by Veronese, failing to give certain instructions proposed by Lucasfilm, and failing to instruct on certain issues submitted to the jury. Notably, this Court of Appeal decision appears to be the first California appellate decision reversing a jury verdict for an employee based on failure to give a business judgment instruction. Read More
Brinker continues to impact meal and rest period and off-the-clock cases as lower courts continue to grapple with the contours of its application. Several cases at the appellate level were remanded after the California Supreme Court’s Brinker decision, and those cases are now working their way through the lower courts. On our July 6, 2012 blog post, we identified three post-Brinker decisions denying class certification in meal period cases. Below is a brief summary of post-Brinker decisions issued since our last update. Read More
Is it “here we go again” for Harris? In the latest round of the donnybrook that is the administrative exemption in California, a California Court of Appeal in Harris v. Super. Ct., No. B195121 (Cal. App. July 23, 2012), held that the plaintiffs, insurance claims adjusters, were—as a matter of law—not exempt from California’s overtime laws under California’s administrative exemption. After a trial court certified a partial class of California claims adjusters, but denied plaintiffs’ motion for summary judgment, the parties appealed the decision all the way to the California Supreme Court. Read More