On September 12, 2019, the California Supreme Court issued its decision in ZB, N.A. v. Superior Court, which resolved a split of authority regarding whether an employer may compel arbitration of an employee’s Private Attorneys General Act (“PAGA”) claim seeking unpaid wages under Labor Code section 558. In reaching its conclusion, the Court first answered the “more fundamental question” of whether a plaintiff may seek unpaid wages under PAGA: to which the answer is no. Therefore, ZB’s motion to compel arbitration should have been denied. READ MORE
Annie Chen is a Managing Associate in the employment litigation department in Orrick’s Los Angeles office. She represents corporate clients in complex employment litigation, including wage-and-hour class actions and PAGA representative actions, as well as single plaintiff discrimination, retaliation, and wrongful termination claims.
Annie has experience in all facets of litigation, including factual investigations, preparing witnesses for depositions, taking depositions, and pretrial briefing and motion practice. She also advises clients regarding compliance with employment laws, including revising employee handbook provisions and employee commission agreements, leave of absence issues, requests for accommodations and employee terminations.
Posts by: Annie H. Chen
On June 3, 2019, the United States Supreme Court issued its decision in Fort Bend County, Texas v. Davis, resolving a circuit split regarding whether Title VII’s charge-filing requirement with the Equal Employment Opportunity Commission (“EEOC”), or equivalent state agency, is jurisdictional. The Supreme Court ruled unanimously that Title VII’s charge-filing instruction is not jurisdictional; rather, it is a procedural prescription which is mandatory if timely raised, but subject to forfeiture if tardily asserted. READ MORE
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
On December 14, 2017, the new Republican majority at the National Labor Relations Board (the “Board”) overturned a controversial Obama-era decision regarding joint employment. The Board’s 3-2 decision in Hy-Brand Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”) rejected the 2015 Browning-Ferris decision, which had fundamentally broadened the joint employer standard. READ MORE
Recently, much has been made about the government’s conflicting positions regarding whether sexual orientation is protected by Title VII of the Civil Rights Act of 1964. The EEOC (“Equal Employment Opportunity Commission”) has continued to assert its position that sexual orientation is protected under Title VII as a form of sex-based discrimination under the Supreme Court’s Price Waterhouse decision. At the same time, the Department of Justice (“DOJ”) has claimed that Title VII does not protect sexual orientation as it is not based on sex. Many have taken extreme umbrage at DOJ’s position as a complete reversal of the previous administration’s position as the Department filed an unsolicited amicus in the Second Circuit. However, as the DOJ’s civil division filed the brief, it presents a rare window into the “Jekyll/Hyde” dynamic within the government. As some agencies broadly seek civil rights protections, the federal government is also one of the world’s largest employers faced with the challenges of limiting countless claims. READ MORE
On July 13, 2017, the California Supreme Court greatly expanded the scope of discovery available under California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”). In Williams v. Superior Court (Marshalls of CA, LLC), ___Cal. 5th ___ (Jul. 13, 2017), the court held that the breadth of discovery in a PAGA action should be no less than what is normally permitted in a class action. Additionally, the Court held that as an essential first step to prosecuting any representative action, a PAGA plaintiff is presumptively entitled in the early stages of litigation to obtain from the employer-defendant the contact information of those the plaintiff purports to represent in early stages of litigation. READ MORE
On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee’s post, under the particular circumstances of the case, was not so “opprobrious” as to lose protection under the NLRA. READ MORE