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Posts by: Alexandra Stathopoulos

Federal Overtime Formula Falls Flat — California Supreme Court Adopts DLSE Interpretation for Flat Rate Bonuses

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In a break from federal law, the California Supreme Court clarified in Alvarado v. Dart Container Corp. the proper formula for calculating flat-rate bonuses into overtime pay under California law.  The Court adopted the Plaintiff’s position and held that, for purposes of calculating the per-hour value of a flat rate bonus, the divisor should be the number of nonovertime hours the employee worked in the pay period rather than all hours worked during the pay period.  READ MORE →

DOJ Flips the Switch on Class Waivers in Arbitration Agreements, Signaling Possible Changes to Come

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Arbitration agreement form on an office table DOJ Flips the Switch on Class Waivers in Arbitration Agreements, Signaling Possible Changes to Come

On Friday, June 16, 2017, the United States Department of Justice (DOJ) filed an amicus brief reflecting a change of heart when it comes to the enforceability of class waivers in arbitration agreements.  In an unprecedented move, President Trump’s acting solicitor general, Jeffrey B. Wall, said his office had “reconsidered the issue and has reached the opposite conclusion” as the Obama administration in a set of consolidated cases currently before the U.S. Supreme Court, NLRB v. Murphy Oil USA Inc. (Docket Nos. 16-285, 16-300, and 16-307).

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First Dibs: New Ordinance Requires San Jose Employers to Offer Additional Hours “In-House” to Qualified Part-Time Employees before Hiring

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For anyone who missed it, on Monday, March 14th the “Opportunity to Work Ordinance” (the “Ordinance”) went into effect in San Jose.  The Ordinance, which was approved by voters on November 8, 2016, requires employers to offer additional hours to existing part-time employees before hiring externally, either directly or through a temporary staffing agency. Employers must offer the additional hours to employees who have the skills and experience to perform the work.  Whether or not an existing employee has the requisite skill and experience is a determination left to the employer – modified only by the requirement that the employer act in good faith and with reasonable judgment.  Further, an employer need not offer an existing employee additional hours if doing so would require the employer to compensate the existing employee at time-and-a-half or any other premium rate under the law or a collective bargaining agreement.  READ MORE →

The New Gold Standard: S.B. 1241 Limits Employers’ Ability to Include Non-California Venue or Choice-of-Law Provisions in Contracts with California Employees

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On September 25, 2016, California Governor Jerry Brown signed S.B. 1241 into law, prohibiting employers doing business in the Golden State from requiring California employees, as a condition of employment, to agree to non-California choice-of-law or venue provisions for claims arising in California, either in litigation or arbitration.  Such provisions are frequently found in employment, arbitration, or non-compete agreements.  The new law will be codified as California Labor Code section 925, and will apply to contracts entered into, modified, or extended on or after January 1, 2017.

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

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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.

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Splitting the Baby: SCOTUS Ruling in Pregnancy Discrimination Suit Calls For Review of Pregnancy Accommodations

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On March 25, 2015, the U.S. Supreme Court issued a decision in Young v. United Parcel Service, Inc., holding that the Pregnancy Discrimination Act (PDA) requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to perform their job duties.

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U.S. Census Bureau Down for the Count after Certification Ruling in Criminal Background Check Case

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Gavel and Hundred-Dollar Bill

Last Tuesday, a Magistrate Judge in the United States District Court for the Southern District of New York granted partial class certification in a case where plaintiffs allege that the United States Census Bureau used arrest records to screen out job applicants, thereby transferring  disparities in arrest and conviction rates for African-Americans and Latinos into the agency’s hiring practices and setting up hurdles to employment that disproportionately affected these groups in violation of Title VII. READ MORE →

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

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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 →

Party Foul! NLRB Orders Reinstatement and Back Pay for Party Bus Guide After Finding Facebook Postings Amount to Protected Union Organizing Activity

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Providing yet another example of how online social networking can amount to protected conduct under the National Labor Relations Act, the NLRB ruled earlier this month in New York Party Shuttle, LLC and Fred Pflantzer, CN: 02-CA-073340 that a New York City tour guide’s Facebook postings constituted protected union organizing activities. The board held that New York Party Shuttle LLC unlawfully discharged Fred Pflantzer when it refused to give him new assignments after he posted Facebook messages criticizing the company’s employment practices. READ MORE →

Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

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The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the Department of Labor clarified that the age of the onset of a disability is irrelevant to determining whether an individual is considered a “son or daughter” under the FMLA. See Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2013-1. READ MORE →