Julie Totten

Partner

Sacramento


Read full biography at www.orrick.com
Julie Totten is the Co-Leader of Orrick’s Global Employment Law and Litigation Practice Group. 

Julie, who has more than 20 years’ experience representing companies in high stakes litigation, is honored to be a Fellow of the College of Labor and Employment and she also serves as a Council Member of the American Bar Association Labor and Employment Law Section. Julie has achieved significant results for her clients and in 2014 she was recognized by Legal 500 as someone who "truly understands corporate politics and works with in-house counsel to understand the intersections of legal advice and business objectives." 

Julie represents employers in complex cases, including wage-and-hour class and collective actions, EEO claims and claims involving breach of contract and wrongful termination. She has also successfully represented clients involved in investigations and audits by the Department of Labor and the California Division of Labor Standards Enforcement, and she assists clients in developing compensation policies and compliance measures designed to reduce potential exposure. Julie also counsels and trains clients on a wide variety of employment law matters, including social media and employee privacy.

Posts by: Julie Totten

“Judges Are Appointed For Life, Not For Eternity”: SCOTUS Rules That Judge’s Vote in Equal Pay Case Does Not Count Due To Judge’s Passing

In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. READ MORE

Big Win for the Healthcare Industry on Meal Break Waivers as the California Supreme Court Resolves an Apparent Conflict in the Labor Code and IWC Wage Order

On December 10, the California Supreme Court issued an impactful decision for the healthcare industry. In Gerard v. Orange Coast Memorial Medical Center, the unanimous Court endorsed the Hospitals’ meal break policy, over which the parties had battled for more than a decade.

The policy permitted employees who worked shifts longer than 10 hours to voluntarily waive one of their two meal breaks, even if their shifts lasted more than 12 hours. The Plaintiffs alleged the meal period waivers they signed were illegal because under the California Labor Code, waivers were not permissible for shifts greater than 12 hours.

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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

While Veteran-Friendly, USERRA’s Anti-Discrimination Provision Still Requires Adverse Employment Action For Employer Liability

With Memorial Day around the corner, it is an appropriate time for employers to review their management of employees who are members of the military.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to work after a period of service in the U.S. military.  USERRA differs from other employment laws in ways that make it quite veteran/employee-friendly, including:

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Reversed! NLRB Overrules Browning-Ferris Decision And Returns To Prior Joint Employment Standard

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

Expanded Protections for Working Mothers in San Francisco

 

Effective January 1, 2018, San Francisco will expand available protections for nursing mothers working within city limits. California law currently requires employers to provide lactating employees with a reasonable amount of break time and to make reasonable efforts to provide the employee with a room, other than a bathroom, in close proximity to the employee’s work area to express milk.  Similarly, federal law requires employers to provide a reasonable break time for an employee to express breast milk for one year after the child’s birth in a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.  Signed into law by San Francisco’s Mayor Ed Lee on June 30, 2017, the “Lactation in the Workplace Ordinance” will expand these requirements for San Francisco employers in the following ways.

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California’s Tightened Regulations on Considering Criminal History in Employment Decisions Take Effect July 1, 2017

Last year, the California Fair Employment and Housing Council proposed new regulations on an employer’s consideration of criminal history in making employment decisions. Those regulations were approved this year by the Office of Administrative Law after a period of public comment and are due to become effective on July 1.

New Clarification on Adverse Impact Claims READ MORE

Who Can Sue Under the Fair Credit Reporting Act? A Claimant Must Now Have a Concrete Injury to Go to Court

shutterstock_270813506On May 16, 2016, the U.S. Supreme Court issued an opinion in the closely watched case Spokeo, Inc. v. Thomas Robins et al., addressing the issue of standing under the Fair Credit Reporting Act (FCRA). The Court held that in order to establish standing to sue, plaintiffs must show “an invasion of a legally protected interest” that is both “particularized and concrete.” In doing so, the Court vacated the Ninth Circuit’s prior holding that a consumer has standing under Article III to bring an action for statutory violations without alleging actual injury. See Spokeo Inc. v. Thomas Robins et al., case number 13-1339.

Spokeo operates a “people search engine” that provides information on contact data, marital status, age, occupation, and wealth level. In June 2013, the Federal Trade Commission (FTC) fined Spokeo for selling consumer profiles to potential employers without fulfilling its reporting obligations under the FCRA. The FTC’s pursuit of Spokeo, a non-traditional consumer reporting agency (CRA), signaled a more expansive application of FCRA provisions at that time, and set the groundwork for a civil action on related claims.

Thomas Robins subsequently brought action against Spokeo, alleging “willful violations” of the FCRA, which he claimed resulted in publication of inaccurate information about his job and wealth level that caused him psychological harm while struggling to find work. The district court dismissed the case, finding that Robins had failed to plead an injury-in-fact that could be traced to Spokeo. In February 2014, the Ninth Circuit reversed, holding that a showing of actual harm is not required for willful FCRA violations and that the suit could go forward under Article III without alleging actual injury.

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Digging Into the New Overtime Regulations

In 2015, the Department of Labor (“DOL”) proposed substantial changes to the minimum salary level requirements, sought input on whether bonuses and incentives should be included in meeting the salary level test and considered changing the duties test to establish overtime eligibility. Taken together, these proposed changes would have had a drastic effect on the obligation of employers to pay overtime. On May 18, 2016, DOL issued its Final Rules and employers have until December 1, 2016 to comply. Overall, the changes strike a middle ground as DOL declined to adopt the more restrictive California 50% duties test. However, doubling the salary level threshold and other changes present significant economic and compliance challenges for employers. Below is a summary of key takeaways and steps employers should consider to address these changes and ensure compliance.

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Will HR Managers Get Cooked? Second Circuit Says Culinary Institute’s Human Resources Director May Face Individual Liability Under FMLA

Whether a Human Resources Director will be deemed the “employer” and held individually liable for alleged violations under the Family Medical Leave Act (“FMLA”) should be left to the jury, according to the Second Circuit’s recent FMLA decision.  In Graziadio v. Culinary Institute of America, et al., 15-888-cv (2d Cir. Mar. 17, 2016), the Second Circuit found that there could be a viable claim for individual liability under the FMLA and it also announced the standard for what could be considered unlawful “interference” with FMLA rights.

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