Kimpo Ngoi

Career Associate

San Francisco


Read full biography at www.orrick.com
Kimpo Ngoi is a lawyer in the San Francisco office’s Employment Law and Litigation group, focused on wage-and-hour disputes. 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.

Kimpo’s experience includes litigating several class actions involving a broad range of complex issues, such as entitlement to overtime and reimbursement under the California Labor Code, exemption status under the Fair Labor Standards Act (FLSA), and proper removal standards under the Class Action Fairness Act (CAFA). Kimpo has developed expertise of the retail industry and counsels clients on practices that help them both achieve their business goals and comply with their obligations as employers.

Kimpo is also committed to serving pro bono clients. In addition to drafting employee handbooks for nonprofits, he has also successfully helped a domestic violence victim regain custody of her child.

Prior to joining Orrick, Kimpo completed a fellowship with the Asian Law Caucus’ Employment Program where he managed cases involving unpaid wages, wrongful termination, discrimination, and unemployment insurance benefits; and provided representation to clients within the public housekeeping, household occupation, transportation and construction industries.



Array

Posts by: Kimpo Ngoi

Sick of It Yet? The DLSE Issued New Paid Sick Leave FAQs

Paid sick leave remains an epidemic that won’t quit.  Since California enacted the Healthy Workplaces, Healthy Families Act of 2014 (Cal. Lab. Code § 245, et seq.) (“California Paid Sick Leave”), paid sick leave laws have spread to both state and local levels, requiring employers to maneuver a patchwork of laws.  These laws left several unanswered questions in their wake.  Indeed, the unanswered questions were so numerous that the California Legislature passed a fix-it bill of amendments revising and clarifying California Paid Sick Leave only a few months after it took effect.  Despite the fix-it bill, several questions remained.

On March 29, 2017, the California Labor Commissioner, through the Division of Labor Standards Enforcement (the “DLSE”), attempted to provide further guidance by issuing an update to its California Paid Sick Leave: Frequently Asked Questions (“FAQs”).  The updated FAQs address questions regarding the use of “grandfathered” paid time off (“PTO”) policies and the intersection of California Paid Sick Leave and employer attendance policies.  Here are the takeaways: READ MORE

It’s Smooth Sailing for a Shipping Company After Ninth Circuit Arbitration Victory

Last month, the Ninth Circuit issued a notable opinion addressing the enforceability of arbitration agreements in Poublon v. C.H. Robinson Co., 846 F.3d 1251 (9th Cir. 2017), mandate issued (Feb. 24, 2017).  In Poublon, the employee filed a class action even though she signed a dispute resolution agreement that prohibited representative actions and required her to mediate and arbitrate all other claims.  The court evaluated the agreement to determine if it was unconscionable under California law, which looks at both procedural and substantive unconscionability on a sliding scale.  Although the court held that a few provisions were substantively unconscionable, the court severed and reformed the offending provisions and largely upheld the dispute resolution agreement. READ MORE

Pulling the Seat From Under PAGA Plaintiffs

From the time of its enactment, the California Private Attorneys General Act of 2004 (“PAGA”) has been a thorn in the side of employers.  For example, the California Supreme Court insists PAGA actions are not class actions, but that hasn’t stopped aggrieved employees from seeking class-wide discovery.  And because PAGA permits employees to seek penalties for unconventional causes of action previously off-limits to private plaintiffs (such as the California Wage Order’s suitable seating requirement), employers must grapple with new uncertainties. 

But one aspect of PAGA that provides some relief to employers is the requirement that plaintiffs exhaust administrative remedies before filing a lawsuit.  To satisfy this this requirement, a plaintiff is required to send a notice to her employer and the Labor Workforce Development Agency (“LWDA”) setting forth the “specific provisions” of the Labor Code allegedly violated and explaining the “facts and theories to support the alleged violation” and then wait 65 days before filing suit.  This notice requirement has two purposes: (1) to give the LWDA sufficient information to determine whether the alleged violation justifies an investigation and/ or citation and (2) to put the employer on notice so that it may voluntarily cure the alleged violation. Oftentimes, however, plaintiffs’ notice letters are deficient because they fail to include sufficient facts and theories to inform the employer or the LWDA of the nature of the claims.  In such cases, plaintiffs have failed to exhaust administrative remedies. 

Judge Gonzalo Curiel’s recent decision in Gunn v. Family Dollar Stores, Inc., Case No.: 3:14-cv-1916-GPC-BGS (S.D. Cal. Dec. 2, 2016), reminds us of the standard that notice letters must meet.  Plaintiff Gunn’s notice letter advised the LWDA of his intent to file a PAGA action for violations of Wage Order 7-2001, Section 14, and “[s]pecifically . . . allege[d] that Family Dollar failed to provide suitable seats to Plaintiff and other current and former employees when the nature of their work reasonably permits the use of seats, in violation of California Labor Code section 1198 and Wage Order 7-2001, section 14.”  Judge Curiel held that such an allegation was insufficient to meet PAGA’s standards.  As he noted, plaintiffs must detail the “facts and theories” supporting their alleged violations. But here, the plaintiff’s allegations simply parroted the language of the underlying regulation, amounting to nothing more than a “string of legal conclusions” devoid of any of the facts or theories required by the Labor Code.  The court rejected the plaintiff’s contention that facts could be implied by his allegations (i.e., that the class of employees at issue would not include office employees because they have seats). 

The most notable aspect of Judge Curiel’s opinion, however, was his denial of the plaintiff’s request for leave to amend.  Although the court recognized leave to amend tends to be granted freely, he disagreed that applied to defective PAGA notices.  The court stated that “courts have granted PAGA claimants leave to amend only when the plaintiff’s complaint failed to adequately plead exhaustion, not when Plaintiff provided defective notice to the LWDA” (emphasis added).  Indeed, granting the plaintiff leave here would tacitly endorse a strategy that precludes the LWDA from receiving the information necessary “to intelligently assess the seriousness of the alleged violation,” thereby frustrating the purpose of PAGA’s statutory notice requirement.

While the unpublished opinion in Gunn will not likely mark a sea change in how courts treat PAGA actions, it is nevertheless a victory for California employers.  Those facing suitable seats claims, which are based on a notoriously ambiguous statute, may have the most to gain. 

 

Post-Tyson Foods: No, The Sky Is Not Falling

This past March, we blogged about the U.S. Supreme Court’s decision in Bouaphakeo v. Tyson Foods, Inc., 136 S. Ct. 1036 (2016), a case in which the plaintiffs alleged that Tyson Foods improperly denied compensation for time spent putting on and taking off required protective gear at a pork processing facility.  At trial, the plaintiffs presented experts who, based on sample data, determined the average number of minutes employees likely spent donning and doffing and the aggregate damages that would be owed to the class as a result.

READ MORE

California: Making Arbitration Great Again

California’s resistance to the longstanding federal policy favoring arbitration frequently results in public expressions of frustration by the justices of the U.S. Supreme Court.  In over five years since the Supreme Court’s broad directives in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), recent California decisions, including our recent coverage of the California Supreme Court’s holding in Sandquist v. Lebo, Case No. S220812, 2016 WL 4045008 (Cal. July 28, 2016), suggest that the state’s stubbornness may be waning, at least for the time being.  The following summarizes key decisions that diverge from California’s traditional resistance to arbitration and which every employer should have in their arsenal of tools.

READ MORE

California Legislators Aim to Make Prior Salaries a Thing of the Past

A few months ago, the California State Assembly introduced AB 1676, a bill that not only would have prohibited employers from asking job applicants about their compensation history, but also would have required employers to provide pay scale information upon reasonable request. A nearly identical bill passed through the Assembly and Senate before it was vetoed by the Governor toward the end of last year. In his veto statement, the Governor expressed concern that such a measure “broadly prohibits employers from obtaining relevant information with little evidence that [it] would assure more equitable wages.”

As we previously reported, the Fair Pay Act (the “FPA,” Labor Code § 1197.5) requires “equal pay for substantially similar work” based on the employee’s skill, effort and responsibility, and similar working conditions. To the extent a disparity exists between employees of the opposite sex, it must be reasonably based on one or more the factors enumerated within the statute.

Perhaps hoping to avoid repeating history, proponents of AB 1676 have taken a new approach. In place of the provision prohibiting inquiries about prior salary history is new language that amends the FPA to state that “[p]rior salary shall not, by itself, justify any disparity in compensation.”

READ MORE

We Get Out Our Crystal Balls on the Imminent DOL Overtime Rules

The prognostication efforts are going into high gear as employers seek to forecast and prepare where the Department of Labor may land on its final overtime rules.  As with all rules in the post-comment phase, government officials have not given any indication on when the final rules will be published (and become effective) or what they will contain.  Our insight is the final rule will be published ahead of schedule before the July regulatory agenda date, perhaps as soon as later this month.  The Congressional Review Act deadlines (described here) strongly indicate that the DOL will seek to avoid the prospect of any effective congressional action on the final rules.  As to the final rule’s content, we believe that the Office of Management and Budget and DOL are taking into account the political winds and other considerations before making a final decision.  Once published, however, the DOL can set the effective dates as early as 60 days which would give employers a very difficult compliance burden.

READ MORE

It Isn’t An April Fool’s Joke – New Amendments to California’s Laws Against Discrimination Become Effective April 1

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.

READ MORE

Legislative Updates Employers Should Know About to Avoid Wringing in the New Year

The California legislature played an active role in 2015 by enacting new rules and amendments in many employment areas.  The following covers some of the key highlights, some of which became effective on January 1, 2016.

READ MORE

Not All Class Actions Are Created Equal Under CAFA, Says the Ninth Circuit

The Ninth Circuit recently delivered a setback to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”) when it interpreted the statute narrowly to exclude consideration of non-class claims in determining the jurisdictional amount in controversy in Yocupicio v. PAE Grp., LLC, No. 15-55878, 2015 WL 4568722 (9th Cir. 2015).

READ MORE