Remember California’s new ban on mandatory workplace arbitration agreements? The Eastern District of California has put it on ice, granting a temporary restraining order against the ban’s enforcement. As a refresher, and as we wrote about here, on October 10, 2019, California Governor Gavin Newsom signed into law California’s latest afront on workplace arbitration—AB 51. Under AB 51, employers may not, “as a condition of employment, continued employment, or the receipt of any employment-related benefit, require an applicant or employee to waive any right, forum, or procedure” for FEHA and Labor Code claims. Violations of the new statute carry hefty consequences, including criminal penalties. Many employers see arbitration agreements as necessary to manage employment disputes and an outright ban on this efficient process strongly affects their bottom line. The ban was scheduled to go into effect on January 1, 2020, but the TRO put enforcement on hold for now. READ MORE
Chris Wilkinson maintains a broad practice in labor and employment, Equal Pay, health and safety, government relations and administrative law.
Chris most recently served as Associate Solicitor for Civil Rights and Labor-Management. In that role, Chris was the senior career civil rights and labor management lawyer for the Department of Labor providing advice on regulatory, policy and enforcement matters for seven DOL agencies including the Department’s Office of Federal Contract Compliance Programs, Civil Rights Center and Office of Labor Management Standards.
Chris counseled the Department on a broad array of equal employment opportunity regulatory and policy initiatives and advised on a wide range of constitutional and statutory matters in federal courts including the Supreme Court of the United States. In addition to EEO matters, Chris led the Solicitor Office’s union election and reporting enforcement work, counseled on transit labor certification matters and advised on appellate matters related to labor union practices.
Chris also has significant litigation experience having served as trial attorney and then Counsel for Civil Rights Programs in the Department’s San Francisco region. In those roles, he litigated a number of complex class wage-and-hour, class discrimination, health and safety citations, and Sarbanes-Oxley and other whistleblower matters.
Chris is an active member of the America Bar Association, having presented on numerous federal contractor compliance, LGBT and compensation discrimination topics at the ABA Conference on Equal Employment Law.
Posts by: Christopher Wilkinson
In the first-of-its-kind ruling last week, the Fifth Circuit held that the EEOC’s investigators and lawyers cannot rely on its “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” to bring enforcement actions. Finding that the guidance amounted to a substantive rule, the Fifth Circuit panel determined that the guidance overstepped EEOC’s authority to force the State of Texas to consider hiring convicted felons to state-wide positions. The decision on its face confirms the general principle that EEOC does not have the authority to engage in rulemaking on substantive discrimination laws and was limited to a specific injunction. However, the decision could have far-reaching consequences for the EEOC’s various substantive guidelines. READ MORE
Alex Acosta’s resignation from the Labor Secretary post signaled a quick blow to a key member of President Trump’s cabinet. It is too early to determine how this change will affect the DOL as far as policy and personnel. However, this blog provides insights on some key questions.
On May 2, 2019, the Ninth Circuit in Vazquez v. Jan-Pro Franchising Int’l, Inc. held that the California Supreme Court’s 2018 decision in Dynamex Operations West v. Superior Court applied retroactively. Dynamex adopted the “ABC” test for independent contractor classification for claims arising under California’s Wage Orders. For those claims, an employer must show that all three prongs of the ABC test are met to justify independent contractor status. For information on Dynamex’s adoption of the ABC test, read our prior coverage here. READ MORE
On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE
The Fourth Circuit recently issued a decision discussing whether a university professor established pay-related claims under the Equal Pay Act and Title VII. This case has important implications for professional occupations where complainants seek to compare themselves to their colleagues for purposes of alleging pay discrimination.
Zoe Spencer, a sociology professor at Virginia State University (“VSU”), sued her employer for allegedly paying her less than two male professors because she is a woman. The district court granted summary judgment, and plaintiff appealed to the Fourth Circuit. The Fourth Circuit affirmed the district court’s decision because (1) plaintiff failed to present evidence that creates a genuine issue of material fact that the two male professors are appropriate comparators; and (2) in any event, unrebutted evidence shows that the VSU based the two male professors’ higher pay on their prior service as VSU administrators, not their sex.
On December 21, 2018, the Department of Labor issued two opinion letters regarding the Fair Labor Standards Act (“FLSA”). The first opinion letter explains that an employer failed to comply with the FLSA’s overtime requirements when it designated a standard regular rate of pay for overtime purposes and the actual regular rate of pay exceeded that amount. The second opinion letter found that certain members of a religious organization were not employees under the FLSA, but, even if considered employees, qualified for the ministerial exception. This blog post explores both letters. READ MORE
As early as November 30, 2018, the U.S. Supreme Court will decide whether to hear three high profile employment cases that question whether Title VII’s ban on sex discrimination protects gay and transgender employees. These cases have significant implications on the proper scope of Title VII and the rights of the LGBT community in the workplace.
Under Title VII, an employer has engaged in “‘impermissible consideration of … sex … in employment practices’ when ‘sex … was a motivating factor for any employment practice,’ irrespective of whether the employer was also motivated by ‘other factors’.”
On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 focused on the legislative reaction to the movement, and Part 3 below discusses how employers have responded to #MeToo.
Over the past year, the #MeToo movement has caused a seismic shift in our culture that continues to ripple through important aspects of our daily lives, especially the workplace. As we previously discussed, the #MeToo movement’s growing momentum has sparked rising trends in sexual harassment claims and lawsuits, as well as a significant increase in EEOC charges and enforcement efforts. In the past year, the EEOC revealed that it filed 41 lawsuits with sexual harassment allegations, which is a 50 percent increase from 2017. In addition, litigation and administrative enforcement of sexual harassment issues yielded nearly $70 million to the EEOC in 2018, up from $47.5 million the prior year. But newly filed lawsuits or administrative charges only reveal a part of the impact – claims of sexual harassment may have a devastating effect on those accused of wrongdoing and their employers, even if they lie far beyond any applicable statute of limitations, as today’s claims often do. Employers of all shapes and sizes are acclimating their policies and practices for the #MeToo era, as none can avoid the categorical shift in workplace culture that is slowly becoming the “new normal.” READ MORE
On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 below focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo. READ MORE