Andrew R. Livingston

Partner

San Francisco


Read full biography at www.orrick.com

Andrew Livingston is a partner in the San Francisco office, where he serves as the Office Leader. Previously, Andrew was the Deputy Practice Group Leader of Orrick’s Global Employment Law Group.

Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California for the fourth consecutive year by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.

Andrew is a highly regarded trial lawyer. The Daily Journal has listed him as a Top Labor & Employment Attorney a number of times, and he has been selected as a BTI Client Service Allstar. Legal 500 has recognized Andrew as a "very effective courtroom advocate who connects well with jurors" and noted that he is "exceptional in his ability to organize complex factual and legal arguments into a simple and persuasive presentation."

Andrew represents clients in a wide variety of industries, but specifically focuses on financial services, retail, technology, and advertising.

He has an extensive class- and collective-action practice. He routinely defends employers in such cases in state and federal courts, particularly in cases alleging violations of the wage-and-hour laws. Andrew also defends employers in numerous other types of cases, such as those related to restrictive covenants and trade secrets, wrongful termination, discrimination, harassment and retaliation.

Posts by: Andrew Livingston

COVID-19 Update: Department of Labor Issues Further FFCRA Guidance

On Thursday March 26, the Department of Labor issued additional guidance about the Families First Coronavirus Response Act (“FFCRA”). The new guidance addresses a variety of topics including how the FFCRA applies to remote working, intermittent leave, worksite closures, reduction of hours and furloughs.

This week, the DOL also issued a fact sheet for employees and a fact sheet for employers. The required poster can be found here as well as FAQs about notice requirements. The DOL plans to implement formal FFCRA regulations in April.

Stay tuned for updates and check out our FFCRA FAQs here.

New Guidance for Joint Employers: The Department of Labor’s Final Rule Under the FLSA

On January 12, 2020, the Department of Labor announced a final rule to revise and update its regulations to assist in determining joint employer status under the Fair Labor Standards Act (FLSA). Notably, the final rule recognizes two potential scenarios where an employee may have one or more joint employers. READ MORE

New Year’s Resolutions: Cases To Watch For California Employers in 2020

With the new year comes the likelihood that the U.S. Supreme Court, the California Supreme Court, and the Ninth Circuit will issue a number of significant decisions spanning a range of topics in the employment arena.  In addition to the new California laws that have recently come into effect, covered here, California employers should watch these three litigation areas as well: READ MORE

What We May See from the California Supreme Court in 2019

2018 saw some major developments in employment law, particularly in California. The California Supreme Court embraced the ABC test for independent contractors in Dynamex, and rejected the de minimis doctrine for Labor Code claims in Troester. While 2019 has already brought legislative changes through the #metoo laws effective January 1, attention should also be on cases before the California Supreme Court. These cases may present new challenges for all employers, but particularly for media companies and employers doing business across state lines. The Court’s decisions in these cases have the potential to increase employers’ exposure to liability. We highlight some such cases here. READ MORE

Tech Giants Continue To Face The Equal Pay Litigation Spotlight

In recent years, the volume of equal pay lawsuits has continued to increase in Silicon Valley, despite technology companies reaffirming their commitment to equal pay policies and practices. Earlier this month, Hewlett Packard Enterprise Co. (“HP”) was hit with the latest equal pay lawsuit. The class action lawsuit, filed in Santa Clara Superior Court, alleges that HP discriminated against its female workers by paying them less than their male counterparts and funneling women into certain jobs based on stereotypes. READ MORE

New California Law Fills in the Blanks of Salary History Ban

Last week, California enacted new legislation updating the prohibition on employers inquiring into the salary history of their applicants and the requirement that employers respond to applicants’ requests for the pay scale for positions. This law, enacting Assembly Bill No. 2282, clarifies key provisions in Labor Code section 432.2 regarding employers’ obligations, which were left undefined in the bill that added Section 432.3 to the Labor Code last year. READ MORE

Easy—Or Challenging—as ABC? California Supreme Court Rewrites Independent Contractor Test for Wage Order Claims

On April 30, 2018, the California Supreme Court issued its long-awaited decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles.  The Court announced a significant departure from the S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) test, previously used by California courts and state agencies for nearly three decades for determining whether a worker is an independent contractor under the Industrial Welfare Commission (“IWC”) wage orders.  In its place, the Court adopted the so-called “ABC” test for determining whether an individual is considered an employee under the wage orders, which govern many aspects of wages and working conditions in covered industries.  READ MORE

Sixth Circuit Rules that Employer Cannot Rely on the Religious Freedom Restoration Act to Defend Discrimination Claims by Transgender Employee

On March 7, 2018, the Sixth Circuit issued a ruling of first impression, holding that the Religious Freedom Restoration Act (“RFRA”) did not exempt an employer from liability for violating Title VII of the 1964 Civil Rights Act (“Title VII”) when it fired an employee transitioning from male to female. READ MORE

Pulling the Plug: New York City Bill Would Give Workers the “Right to Disconnect”

It is now the norm to see passersby glued to their phones as they make their morning trek into work. And when those employees head home, they are often unable to “leave work at the office” as they continue to respond to evening messages, texts, and emails. Recent studies have shown that employees who spend time communicating about work matters and engaged in other work activities outside of working hours are less productive in the office and have a worse quality of sleep. Now, a novel bill introduced before the New York City Council seeks to end that practice by giving workers the ability to pull the plug on work communications during non-work hours.

READ MORE

The Federal Overtime Rule Stalls and State Minimum Wage and Overtime Rules Rev Up

The Obama-Era Overtime Rule Stalls

As we previously reported, a federal district judge’s invalidation of the Obama-era overtime rules – which proposed a sharp increase in the salary threshold for exempt employees, expanding overtime pay to millions of workers – did not doom the possibility of changes to the minimum salary requirements.  Last week, on October 30, the Department of Labor filed a notice of appeal of the decision.  The notice comes after the DOL started the rulemaking process to replace Obama’s Rule with a new rule increasing the current minimum salary level by about 50% (to around $33,000).  If this became effective, it would be a significant departure from the Obama-era Rule, which doubled the minimum salary level to $47,476.  The DOL is expected to issue the new proposed rule in the coming months. READ MORE