“I Did It…But Don’t Tell!” Rejected Job Applicant Says Background Report Should Have Excluded his Admission of Fraud against Former Employer

Last week, a plaintiff sued the creator and the operator of the Esteem criminal background database—LexisNexis and First Advantage—alleging that they gave prohibited information to potential employers, which ultimately barred him from getting a job. Tsang v. LexisNexis Risk Solutions, Inc., No. CV-14-0493 (N.D. Cal. Jan. 31, 2014). Read More

California Employers: Test Yourself – Are You Ready for 2014?

If you have employees in California, you are, no doubt, aware that California laws are constantly changing and have a tendency to sneak up on even the best companies. To help prepare you for the year ahead, here are five important questions employers should ask themselves to test whether they are ready for the key changes in 2014: Read More

EEOC Cut Short for Shortcutting Path to Court – Again

Last week, the EEOC suffered another major loss when a New York district court found that the EEOC once again shirked its pre-litigation obligations under Title VII. Read More

Supreme Court Votes Pro-Arbitration Once Again and Upholds Class Arbitration Waiver

Lest there be any lingering confusion, the U.S. Supreme Court has once again reminded us that arbitration agreements are to be “rigorously enforced.” In this latest installment of pro-arbitration decisions from the high court, a majority of the justices (5-3) upheld a class arbitration waiver as enforceable even when the cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Although the decision arose in the antitrust context, the broad language in the opinion opens the door for enforcement of class action waivers in wage-and-hour class and collective actions where employers have included such waivers in their arbitration agreements with their employees. Read More

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the Department of Labor clarified that the age of the onset of a disability is irrelevant to determining whether an individual is considered a “son or daughter” under the FMLA. See Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2013-1. Read More

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), a case of first impression on whether an employer can round an employee’s clocked time under California law. As a result, the Court of Appeal’s decision on the topic of employers’ rounding of employee time entries remains the law of the land in California.

On October 29, 2012, the California Court of Appeal confirmed that California law—like federal law—permits an employer to implement a policy rounding its employees’ recorded time so long as the policy is neutrally applied and does not systematically under-compensate employees for time worked.

The plaintiff in See’s Candy hoped to blunt this helpful precedent by asking the California Supreme Court to depublish the Court of Appeal’s ruling. However, thanks to the Supreme Court’s denial of the plaintiff’s petitions, employers and courts may continue to look to See’s Candy for guidance in the implementation of their timekeeping policies.

EEOC’s Plan May Mean Narrower, More Aggressive Oversight

As we currently reported on our January 9 blog, on Dec. 17, 2012, the Equal Employment Opportunity Commission released its strategic enforcement plan (SEP). The SEP resulted from the broader strategic plan unveiled by the EEOC earlier this year, outlining the commission’s activities for 2012-2016. The SEP confirms that combating systemic discrimination will be one of the EEOC’s primary objectives. Read Orrick’s “EEOC’s Plan May Mean Narrower, More Aggressive Oversight” on Law360.

EEOC Releases Its Strategic Enforcement Plan

On December 17, 2012, the EEOC released its Strategic Enforcement Plan.  As previously reported, the EEOC released the draft SEP for public comment on September 4, 2012, with a plan to vote on and implement it by October 1.  The more than two month delay suggests that the Commission reviewed the more than 100 comments to the draft and may have also been internally conflicted over portions of the draft (the Commission’s final vote was 3-1). Read More

EEOC Delays Release of Strategic Enforcement Plan, Suggesting Revisions to Draft Plan Likely

On September 4, 2012, the EEOC released for comment its draft Strategic Enforcement Plan (SEP). The EEOC invited the public to comment on the SEP by September 18, 2012, with a plan to vote on the draft at the end of September 2012 and to have the SEP become effective October 1. But that time has now passed with no word from the Commission. This suggests that the Commission is closely evaluating the comments submitted and considering which, if any, to incorporate into the final plan. There may also be disagreement within the Commission over portions of the draft plan. As a result, we do not expect the EEOC to issue the final SEP until mid-October at the earliest. Read More