Oh, F*©k No: Administrative Law Judge Rules that Employees’ Expletive-Laced Facebook Posts are not Protected Under the National Labor Relations Act

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

Court Strikes Down Proposed Class of Female Wal-Mart Employees – Again!

After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013).  Read More

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment.  Read More

Supreme Court To Clarify Key Issues Regarding The Permissibility Of Class Arbitration

In the last several years, the enforcement of agreements to arbitrate disputes, whether between businesses or between businesses and their employees, has become a hotly contested issue in the courts. The U.S. Supreme Court issued two significant pronouncements in this area in the past few years. In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010), the Court held that where an agreement to arbitrate is silent on the question of whether a plaintiff can arbitrate her claims on behalf of a proposed class of similarly situated individuals (similar to a class action lawsuit), class arbitration is not permissible. Last year, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that (1) under the Federal Arbitration Act (“FAA”), arbitration agreements are to be enforced “according to their terms”; and (2) state law rules prohibiting the use of “class-action waiver” provisions, in which a party waives his or her right to arbitrate claims on a class basis, are preempted by the FAA. Together, these cases stand for the fundamental proposition that the parties to arbitration agreements should be bound by the clear terms of such agreements, especially with respect to class arbitration issues.  Read More