On February 13, 2016, Justice Antonin Scalia, the anchor of the Court’s conservative wing for nearly three decades, passed away. He leaves behind a distinguished legal career that involved experience in wide range of roles. After graduating from Harvard Law School, Justice Scalia entered private practice and then became a law professor at the University of Virginia. He served in the Nixon and Ford administrations, eventually becoming Assistant Attorney General. Scalia then began his judicial ascension when President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit. Soon thereafter, Reagan nominated Scalia to the Supreme Court to replace Justice William Rehnquist, whom Reagan had named to the Chief Justice position. Scalia was unanimously confirmed.
California Governor Jerry Brown’s administration recently submitted a budget proposal to the California Legislature that would increase State oversight of Private Attorneys General Act (PAGA) claims and amend the PAGA statute accordingly. The proposal has significant implications for the administration of PAGA claims going forward.
After more than 30 years, the National Labor Relations Board (the “Board”) has concluded that it was time to change the standard for determining when companies are to be considered joint employers under the National Labor Relations Act. On August 27, 2015, with its much-anticipated decision in Browning-Ferris Industries of California, Inc., the Board issued a new joint-employer standard that will examine whether an employer has the potential to exercise control over employees’ working conditions and reversed the previous requirement that a joint employer must exercise direct and immediate control over the employees in question.
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.
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.
On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule addressing how the Americans with Disabilities Act (ADA) applies to wellness programs that are part of group health plans and that include medical examinations or questions about employees’ health. Although not final and still open for public comment, this proposed rule provides important guidelines for employers in administering wellness programs.
On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report (General Counsel Memorandum GC 15-04) summarizing recent NLRB enforcement action regarding many common employment policies. The report is relevant to nearly all private employers, regardless of whether they have union represented employees. It is troubling because it finds that many seemingly innocuous, sensible employer handbook provisions and policies are unlawful because they could potentially be interpreted to chill employees’ rights to engage in concerted protected activity under the National Labor Relations Act.
Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California. Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.
On December 31, 2014, the Court of Appeal for the Second District of California held in an unpublished opinion that employers are not required to relieve employees of all duty during rest periods mandated by California state law. In so holding, the court in Augustus v. ABM Sec. Servs., Inc., No. B243788, 2014 WL 7463154 (Cal. Ct. App. Dec. 31, 2014), reversed the trial court’s award of approximately $90 million dollars in statutory damages, interest, penalties, and attorneys’ fees to the employees.