Ending in a Draw: In Iskanian v. CLS Transportation, the California Supreme Court Upholds Class Action Waivers in Arbitration Agreements, But Also Makes PAGA Claims Unwaivable

Ever since the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, California employers hoped this day would come. In a predictable result, the California Supreme Court today acknowledged that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court overruled its 2007 decision in Gentry v. Superior Court which effectively had barred class action waivers for wage and hour cases. But the Court’s 6-1 plurality decision also bolstered an alternate method for bringing Labor Code claims in court by declaring that actions brought under the Private Attorneys General Act (Labor Code § 2968 et seq.) are not waivable by private agreement and thus not subject to compelled arbitration. Read More

Try, Try Again: The California Supreme Court Sends “Fundamentally Flawed” Duran Case Back to the Trial Court

Employment class action defendants in California who were hoping for an unequivocal statement that statistical sampling has no place in class actions are likely to be disappointed by today’s ruling in Duran v. U.S. Bank, N.A.  The California Supreme Court cautiously left all avenues to certification open, stating that a “[s]tatistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions.” (Emphasis added.)  But despair not!  The bulk of the opinion agreed with the court of appeal in finding the trial court’s methods “profoundly flawed,” recognized the “thorny” issues of proof that arise in misclassification cases, and reaffirmed a court’s obligation to consider the manageability of individual issues in certifying a class action.  The Court’s instructions to lower courts and litigants to determine – as an integral part of class certification – whether the case can be manageably tried are likely to aid employers in certification battles to come.     Read More

Unpaid, but Not Unprotected: New York City Extends Human Rights Law to Protect Interns

As reported by us in recent blog articles (Do as I Say, Not as I Do: Differences in Duties Means No Commonality, No Class Certification for Unpaid Interns and The High Cost of Hiring Unpaid Interns), employment issues surrounding unpaid interns are on the rise. While the bulk of the debate has centered on wage-and-hour issues, some have argued that interns should be afforded the same protections from workplace discrimination and harassment as employees. New York City has now adopted that view. Read More

Paid in Singles for a Shot at the Big Leagues: Former Minor Leaguers Sue MLB for Wage-and-Hour Violations

Spring training is just around the corner and major leaguers have already reported to their first workout. Meanwhile, an interesting development–three former minor leaguers have filed a lawsuit against Major League Baseball, Bud Selig, and three MLB teams, claiming that the MLB has failed to pay overtime and minimum wages in violation of the FLSA and various state labor laws. According to the plaintiffs, the MLB “has a long, infamous history of labor exploitation dating to its inception” by hoarding players, depressing salaries, and preventing unionization of the minor leagues. See Complaint, Senne v. MLB, No. 3:14-cv-00608-JCS (N.D. Cal. Feb. 7, 2014), ECF No. 1. The case is presently before Magistrate Judge Joseph C. Spero. Read More

NLRB Continues to Hold Firm on D.R. Horton Reasoning Despite Contrary Decisions in the Courts

Despite increasing rejection of the NLRB’s controversial D.R. Horton decision by almost all federal courts which have considered it, an NLRB administrative law judge recently felt there was no choice but to follow Board precedent and so applied and affirmed its holding. These cases illustrate the growing divide between the NLRB and courts over the D.R. Horton decision and the growing trend of federal courts refusing to uphold its enforcement. Read More

A Welcome ‘Waive’ of Second Circuit Cases: Class Action Waivers Deemed Enforceable

For the better part of the last decade, the Second Circuit routinely and consistently struck down class action waivers in arbitration provisions. As recently as March 2011, the Second Circuit appeared to have brought down the hammer even further, by stating in In Re: American Express Merchants’ Litigation (“AmEx”) that a mandatory arbitration provision—even one that includes an express “class action waiver”—is unenforceable to the extent it “effectively precludes any action seeking to vindicate [plaintiff’s] statutory rights.”  Read More

Making up for Lost Time: Ninth Circuit Says Defendants May Remove to Federal Court After Traditional CAFA Removal Deadlines Have Passed

Imagine for a second that you’re watching your favorite sports team: They’re losing, time is winding down, and you’re left watching the other team run down the clock. That frustration you’re feeling is something similar to what defendants in a state court case might feel as they watch the days pass by, one by one, until they’re out of time, and it’s too late to remove their case to federal court. Read More

You Can’t Get Paid for Sleeping on the Job

Employees who live in employer-provided housing as part of their job may not so easily claim wages for 24-hour periods of work under California’s Wage Orders, according to a recent opinion, Mendiola v. CPS Security Solutions, Inc., Case No. B245019 (July 3, 2013). Mendiola involved a class of security guards who were employed at various constructions sites across California. On weekdays, the guards were scheduled from 5:00 to 7:00 a.m. and from 3:00 to 9:00 p.m. On weekends the guards patrolled from 5:00 a.m. to 9:00 p.m. From 9:00 p.m. to 5:00 a.m. on weekends and weekdays, the guards were to remain on call at the construction site where they were provided trailer residences for their exclusive use during the on-call time. Read More

The Buck Stops Here!: Gristedes Foods CEO May Be Personally Liable for FLSA Claims

Last week, in Irizarry v. Catsimatidis, Docket No. 11-4035-cv (July 9, 2013), the Second Circuit held that Gristedes Foods CEO—and current NYC mayoral candidate—John Catsimatidis faces personal liability for settlement payments of FLSA claims against his company. The Court determined that Catsimatidis’ active participation in the operation of the company qualified him as an “employer” under the FLSA and could therefore lead to personal liability. Read More

The Affordable Care Act – Consider Yourself on Notice

Under the Affordable Care Act, employers subject to the Fair Labor Standards Act must provide a “Notice of Coverage Options” to each employee. The purpose of this Notice is to inform employees that they may obtain health insurance through their states’ Health Insurance Marketplace. For current employees, the Notice must be distributed before October 1, 2013.  For new employees, the Notice must be given within 14 days after work begins.  Read More