“[A] single discriminatory act does not, by itself, warrant a broader patter-or-practice investigation.” That was the conclusion the Tenth Circuit reached recently when it affirmed a federal district court’s denial of an EEOC subpoena request. Although the Tenth Circuit disagreed with part of the lower court’s reasoning, it ultimately determined the EEOC’s request was flawed on several grounds. READ MORE
Posts by: Lauri Damrell
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
Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.
Three months after the California Fair Pay Act took effect on January 1, 2016, the California Division of Labor Standards Enforcement (“DLSE”) has issued answers to FAQs about the new law, which by all counts is the most employee-friendly equal pay law in the nation. But for California employers who anxiously have been awaiting official guidance on the Act’s many new terms and standards, the FAQs provide little satisfaction. Rather, they focus more on informing employees on how to bring a claim. Nor has the DLSE otherwise spoken publicly about how it plans to enforce the new law; instead, the agency appears to be taking its time and exercising caution as it potentially sets the stage for the rest of the nation.
The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well. In a closely watched decision on the scope of the attorney-client privilege as applied to internal investigations, the D.C. Circuit granted defense contractor Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus and vacated a district court’s order that privileged documents from an internal investigation must be produced.
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.
On Monday, July 13, 2015, California Governor Jerry Brown signed a much anticipated “fix it” bill that amends the Healthy Workplaces, Healthy Families Act of 2014, clarifying the requirements of California’s sick leave law.
The fixes bring welcome clarity and revisions to key provisions that, for most employers, will make the law easier to administer. Yes, it’s two weeks late—the intent was for the bill to pass before the July 1 deadline for employers to implement the bulk of the original law’s requirements. But the delay was due in large part to several revisions that the legislature made in hopes of getting it right this time. And thanks to an urgency provision, the amendments go into effect immediately. The full text of the amendment (AB 304) is available here, but we’ve highlighted a few key provisions below. You should also visit our prior blogs on this subject here to make sure you’re keeping up with the feverish pace of things.
Emeryville will join San Francisco, Oakland and other cities across the nation that have enacted paid sick leave ordinances. On June 2, 2015, the city of Emeryville adopted its Minimum Wage and Paid Sick Leave Ordinance which goes into effect on July 1, 2015 (with enforcement starting July 2). Yes, you read that right: it goes into effect only a month after it was adopted! READ MORE
The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.” As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.
The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court. Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit. Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation. In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.