In the past few years, the American workforce has shifted dramatically. By some estimates, as many as 53 million Americans are now self-employed. Many of them work in the “gig” or “on demand” economy, which has emerged as the new norm for doing business. In general, the gig economy offers traditional services, such as transportation, food delivery, and housing, in a more efficient way by connecting consumers directly to service providers. But, as with many innovations, gig economy companies face challenges from multiple fronts due to mounting legal pressures. Employment laws written in the 1930s haven’t kept up with the pace of innovation, and trying to apply them to the way services are delivered today is like trying to fit a square peg into a round hole. READ MORE
Jessica R. Perry is the Co-Leader of the firm’s Litigation practices worldwide. As an employment partner, she represents industry leaders in tech, retail and financial services in their most significant class, collective, representative and multi-plaintiff actions under state and federal laws.
Jessica’s discrimination, harassment and retaliation practice focuses largely on representing employers facing claims of discrimination and harassment on the basis of gender, race, disability and age, and other protected categories. Jessica defended Kleiner Perkins inobtaining a complete defense verdict in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case, recognized as a 2016 ‘Top Verdict’ by the Daily Journal. Jessica is also defending several leading tech companies in putative class actions challenging pay and promotion systems as gender biased. As well, she frequently handles pay equity matters.
Jessica leads a number of significant wage-and-hour class action matters, focusing on overtime, minimum wage, vacation and personal days, meal and rest break penalties, reporting time wages, expense reimbursements, waiting-time penalties, Private Attorney General Act penalties and work uniform violations. In addition, she also has experience advising companies in the emerging sharing and gig economy on strategic business decisions including the classification of those providing services.
Jessica has also successfully represented clients involved in investigations and audits by the Department of Labor and the California Division of Labor Standards Enforcement, and assists in the development of compensation policies and measures designed to reduce potential exposure.
Jessica is also an expert in generational workplace issues and frequently speaks on employment engagement in a multi-generational workforce.
Discrimination, harassment and retaliation claims
- AMD. Won a complete defense verdict at trial in Maghribi v. AMD, a high-profile case alleging that AMD’s president and chairman engaged in discrimination on the basis of race and religion in the wake of the 9/11 attacks.
- Microsoft. Obtained summary judgment on claims of gender discrimination and harassment, disability discrimination and harassment, and retaliation brought by a senior female sales manager.
- Apple. Obtained summary judgment and sanctions under Federal Rule of Civil Procedure 11 on discrimination, harassment, Equal Pay Act and other tort claims.
- Chico’s. Defeated class certification in wage-and-hour class action alleging off-the-clock and meal break violations.
- Morgan Stanley. Defeated class and collective certification in multidistrict litigation alleging misclassification of financial advisors; obtained summary judgment and defeated class certification in wage-and-hour class action alleging compelled patronage in violation of California law and various Labor Code claims; defeated class certification in wage-and-hour class action challenging the exempt status of financial advisors, business expenses reimbursement practices, and sign on payment practices and certain non-solicit provisions.
- Roche Laboratories. Obtained summary judgment and defeated class certification in a wage-and-hour class action challenging the exempt status of pharmaceutical representatives.
- Apple. Defeated class certification in a wage-and-hour class action alleging off-the-clock work by customer support agents; defeated class certification and won motion to deny certification in a wage-and-hour class action alleging rest break violations in retail stores.
- Electronic Arts. Defended California class actions and Florida collective action challenging the exempt status of computer graphic artists and engineers.
- Williams-Sonoma. Defended class certification in wage-and-hour class action challenging the exempt status of retail managers; won dismissal of alleged class action challenging "on-call" shift scheduling.
- Gap. Defeated class certification in a wage-and-hour class action alleging compelled patronage and wage deductions under New York law.
- Old Navy. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers.
- Banana Republic. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers.
- Pottery Barn Kids. Defeated class certification in a wage-and-hour class action challenging the exempt status of managers, meal and rest break violations, and waiting time penalties.
- Gymboree. Defeated collective certification in FLSA case in Florida challenging the exempt status of managers; obtained summary judgment on the exempt status of a retail manager.
Posts by: Jessica Perry
After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the “nuclear option,” the Senate confirmed Neil Gorsuch of the Tenth Circuit to be the next Supreme Court Justice. His first day on the job was Monday, April 17th. But for those who are not familiar with Judge Gorsuch, the question remains: what kind of Justice will he be? READ MORE
Can employers still require employees to sign arbitration agreements with class action waivers as a condition of employment? Last week, the Ninth Circuit became the second appellate court to adopt the National Labor Relations Board’s (“NLRB”) position that class action waivers violate the National Labor Relations Act (“NLRA”) in Morris v. Ernst & Young LLP.
The adage that “there is no rest for the weary” is perhaps an all too familiar one for California employers. Although employers might have already spent the past few months implementing a host of new laws that took effect in early 2016, there has been less fanfare about the upcoming regulatory amendments under the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.) that go into effect April 1, 2016.
A recently filed petition for certiorari asks the U.S. Supreme Court to clarify the procedural requirements for ending private causes of action under the Fair Labor Standards Act (“FLSA”). Specifically, petitioner Dorian Cheeks is asking the Supreme Court to review a decision from the U.S. Court of Appeals for the Second Circuit holding that Federal Rule of Civil Procedure 41 (“FRCP 41”) prohibits the dismissal of FLSA claims through private, stipulated settlement agreements absent approval from either a federal district court or the U.S. Department of Labor (“DOL”).
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.
On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA) plaintiff and the individual(s) promoted in lieu of the plaintiff creates a rebuttable presumption that the difference was insubstantial. The “rebuttable presumption” approach affords limited protection to an employer faced with an ADEA suit, and highlights the need for employers to implement appropriate policies and training to mitigate the risk of such claims.
On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation that purports to clarify on one of the most challenging legal questions facing employers today: are certain workers employees or independent contractors? Notably absent from the guidance, however, is any specific reference to workers who provide services through “on-demand” companies like Uber, Lyft, and Airbnb who use technology to deliver traditional services more efficiently by connecting consumers directly with service providers. This is surprising since it seems that the DOL’s renewed focus on misclassification has stemmed in large part from the slew of pending on-demand worker lawsuits in which the classification tests have proven very difficult to apply.
Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.