California Legislature Tries Again to Thwart Arbitration With Bill Purporting to Make Mandatory Arbitration Unlawful

California employers should keep an eye on a new challenge to arbitration provisions on its way to the Governor’s desk.  On August 24, 2015, the California Senate passed AB 465, which would make it unlawful for any employer or other company to “require another person to waive any legal right, penalty, remedy, forum, or procedure for a violation of any provision of [the California Labor Code], as a condition of employment, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Labor Commissioner, state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.”  The Senate version eliminates the originally proposed $10,000 per violation penalty, but continues to authorize an award of injunctive relief and attorneys’ fees to a prevailing plaintiff seeking to enforce the section. The Assembly concurred in the Senate’s amendments on August 27, 2015, and the bill will reach the Governor shortly.

Read More

D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the Direction of Counsel

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.

Read More

EEOC Rules that Sexual Orientation Discrimination is Sex Discrimination Under Title VII

On the heels of the landmark decision by the Supreme Court in favor of gay marriage, the EEOC held on July 15, 2015 that sex discrimination under Title VII includes discrimination on the basis of sexual orientation.  Even though the decision is not binding precedent in federal court, and runs contrary to a significant body of case law holding that Title VII does not prohibit discrimination on the basis of sexual orientation, it could be regarded by some courts as persuasive authority.  The decision could also have an impact on employers in the form of an increased number of administrative charges of discrimination filed with the EEOC based on sexual orientation, as courts determine whether to adopt the EEOC’s interpretation.

Read More

High Court Says “Let It Ride”; Limo Company Fails to Flag Down Enough Justices to Hear PAGA Carve-out Case

On January 20, the United States Supreme Court denied certiorari in CLS Transportation Los Angeles LLC v. Iskanian, leaving intact a decision by the California Supreme Court holding that representative Private Attorney General Act (PAGA) claims cannot be waived in arbitration agreements. Enacted in 2004, PAGA deputizes private citizens to seek penalties on behalf of the state by bringing representative suits for workplace violations.

Read More

Including PAGA Representative Action Waivers in Arbitration Agreements Post-Iskanian

After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements.  The answer to whether such waivers should be retained is not as straightforward as one might expect.

Read More

Three Key EEO Cases to Watch on the SCOTUS Docket This Term

The Supreme Court is set to weigh in on several key questions for employers this term related to employee discrimination.  When does an employer have to accommodate a pregnant employee?  How about a job applicant who wears a head scarf in an interview but does not make it clear she is doing so for religious reasons and needs an accommodation?  Can a court decide whether the EEOC has done enough to resolve your case?  Here are three key EEO cases to keep your eye on in the coming months. Read More

PDA and Young: Pregnancy Discrimination Law to Break from Its Infancy

On the heels of the Hobby Lobby decision in late June, the Supreme Court has signaled that women’s health issues in the workplace will continue to be a central issue by granting a petition for certiorari in Young v. United Parcel Service on July 1, 2014.  In Young, the Court will examine whether the Pregnancy Discrimination Act (“PDA”), which provides that pregnant women “shall be treated the same for all employment-related purposes…as other persons…similar in their ability or inability to work,” requires employers to provide work accommodations to pregnant women to the same extent they provide them to other disabled workers.  The Court’s review of Young comes at a time when pregnancy discrimination laws are gaining more attention and more traction, and litigation in this area is increasing.

Read More

Compelling Individual Arbitration Violates National Labor Relations Act? It Does According to ALJ

Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or collective actions still violated federal labor law because the employer’s steps taken to enforce the agreement in court had the practical effect of doing so. Read More

Post This! Private Employers Not Required to Display Pro-Union NLRB Posters

The National Labor Relations Board (“NLRB”) recently announced that it would not seek Supreme Court Review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a pro-union notice of employee rights under the National Labor Relations Act on their premises and websites. Read More

Time’s Up: Supreme Court Upholds Enforcement of Claim Limitations in ERISA Plan Language

Christmas may have come a little early for plan administrators and companies looking for clarity in ERISA litigation. Last Monday, the U.S. Supreme Court ruled 9-0 in Heimeshoff v. Hartford Life & Accident Insurance Co. that contractual limitations provisions in ERISA plans are enforceable unless the time limitation is unreasonably short or is preempted by statute. Read More