In 2018, the U.S. Supreme Court issued its landmark decision in Epic Systems Corp. v. Lewis—a decision that upheld the validity of class action waivers in arbitration agreements (discussed in our prior post). Since then, Democrats lobbied to overturn that decision. In 2018, Democrats introduced H.R. 7109, entitled the “Restoring Justice for Workers Act” to outlaw class action waiver provisions in employment contracts. Although that bill died in Congress, Democrats continue to pursue the fight to prohibit “forced” arbitration agreements and class action waivers. READ MORE
She has significant experience working on complex discrimination and wage-and-hour class actions for global leaders in the retail and technology sectors including The Gap, Genentech, Microsoft, Sears, Burlington Coat Factory, Gymboree, Spencer’s Gifts, Banana Republic, Old Navy, Williams Sonoma and Pottery Barn Kids, among many others.
Lynne led the trial team that obtained a complete defense verdict for Kleiner Perkins in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense international media scrutiny. In naming Lynne “Litigator of the Week” for this victory, American Lawyer described her effective voir dire and how she “steadily poked holes in Pao’s testimony.” The Recorder called Lynne’s cross-examination “masterful” and Bloomberg reported that her “charismatic, intimidating oratory made her the trial’s breakout star.”
Following Pao, Lynne secured a complete defense verdict for SpaceX in an $8 million gender discrimination and retaliation suit. The Daily Journal called the outcome “another triumph for Hermle,” observing that her “string of successes for tech clients fighting off gender harassment and discrimination claims got longer.” The publication also pronounced Lynne to be “arguably the most feared employment defense attorney in California.” Eight months later she followed that up with another defense verdict for SpaceX in a wrongful discharge and retaliation case.
In recognition of these successes and career trial work, Lynne was inducted into the American College of Trial Lawyers in 2017.
Posts by: Lynne Hermle
As part of its effort to close gender-based pay gaps, California will now require companies to increase female representation on boards of directors.
Currently, one in four publicly held corporations in California have no women on their boards of directors. SB 826, which Governor Jerry Brown signed into law at the end of September, requires that all publicly held corporations based in California have at least one woman director by December 31, 2019. That is not the end of the requirements; by December 31, 2021, companies with five authorized directors must have a minimum of two female board members, and companies with at least six directors must have a minimum of three females on the board. The California Secretary of State will publish the names of compliant and non-compliant companies on an annual basis. In addition to the “name and shame” provisions, non-compliant companies face fines of $100,000 for the first violation and $300,000 for subsequent violations.
The sponsors of the bill, Sens. Hannah-Beth Jackson (D-Santa Barbara) and Toni Atkins (D-San Diego), stated when introducing the bill: “More women directors serving on boards of directors of publicly held corporations will boost the California economy, improve opportunities for women in the workplace, and protect California taxpayers, shareholders, and retirees. . . . Yet studies predict that it will take 40 or 50 years to achieve gender parity, if something is not done proactively.” The bill cites numerous independent studies stating that publicly held companies perform better in terms of profitability, productivity, and workforce engagement when women serve on their boards of directors. It follows the lead of Germany, France, Spain, Norway, and the Netherlands that have addressed the lack of gender diversity on corporate boards by instituting quotas requiring 30 to 40 percent of seats be held by female directors.
Gov. Brown noted in his signing letter that corporations have been considered “persons” for more than a century, so they should reflect the “persons” who make up America as a result. The California Chamber of Commerce and a coalition of other businesses opposed the bill and argued that the mandate is unconstitutional and a violation of California’s civil rights statutes. While Gov. Brown acknowledged that the law could face legal challenges, he noted that “recent events . . . make it crystal clear that many are not getting the message.” Therefore, he felt signing the bill into law was a necessary measure. No lawsuits have yet been filed.
In the meantime, California-based publicly held companies should act promptly to ensure that their boards of directors include the number of women directors needed to comply with the statute.
Employers faced with discrimination claims must determine if summary judgment is a viable means to dispose of those claims. A recent Ninth Circuit decision provides some additional ammunition for employers moving for summary judgment going forward.
In affirming summary judgment on August 16, 2017, the Court in Merrick v. Hilton Worldwide, Case No. 14-56853, 2017 WL 3496030, held that “context is key when a plaintiff alleges age discrimination based on circumstantial evidence” and, on the facts before it, affirmed summary judgment for the employer. Id. at *8. Plaintiffs fond of quoting the standard for summary judgment articulated in Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) – which held that a plaintiff in an employment discrimination case needs to produce “very little evidence” to defeat summary judgment – will need to contend with the more nuanced picture of summary judgment requirements that Merrick paints. READ MORE
The Private Attorneys General Act of 2004 (“PAGA”) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the state of California for Labor Code violations. In January, Governor Brown submitted a budget proposal that sought greater oversight of PAGA claims and amendments to the PAGA statute. On June 15, 2016, the California Legislature approved Governor Brown’s budget proposal which included significant amendments to PAGA (Labor Sections 2698-2699.5). SB 836 went into effect on June 27, 2016 and provides:
- The Labor and Workforce Development Agency (“LWDA”), the agency which coordinates workforce programs by overseeing seven major departments that serve California businesses and workers now has 60 days to review a notice under Labor Code § 2699.3(a). Prior to the amendments, the LWDA had 30 days to review. Additionally, the time for the LWDA to investigate a claim is extended to 180 days (it was 120 days);
- A Plaintiff cannot file a civil action until 65 days after sending notice to the LWDA (previously 33 days);
- The LWDA must be provided with a copy of any proposed settlement of a PAGA action at the time it is submitted to the court;
- A copy of the court’s judgment and any other order that awards or denies PAGA penalties must be provided to LWDA;
- All items that are required to be provided to the LWDA must be submitted online, including PAGA claim notices and employer cure notices or other responses;
- A $75 filing fee is required for a new PAGA claim notice and also for any initial employer response to a new PAGA claim notice. The filing fee may be waived if the party on whose behalf the notice or response is filed is entitled to in forma pauperis status; and
- When a plaintiff files a new PAGA lawsuit in court, a filed-stamped copy of the complaint must be provided to LWDA. This requirement only applies to cases in which the initial PAGA claim notice was filed on or after July 1, 2016.
Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.
With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. READ MORE
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). READ MORE
Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment. READ MORE
In the last several years, the enforcement of agreements to arbitrate disputes, whether between businesses or between businesses and their employees, has become a hotly contested issue in the courts. The U.S. Supreme Court issued two significant pronouncements in this area in the past few years. In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010), the Court held that where an agreement to arbitrate is silent on the question of whether a plaintiff can arbitrate her claims on behalf of a proposed class of similarly situated individuals (similar to a class action lawsuit), class arbitration is not permissible. Last year, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that (1) under the Federal Arbitration Act (“FAA”), arbitration agreements are to be enforced “according to their terms”; and (2) state law rules prohibiting the use of “class-action waiver” provisions, in which a party waives his or her right to arbitrate claims on a class basis, are preempted by the FAA. Together, these cases stand for the fundamental proposition that the parties to arbitration agreements should be bound by the clear terms of such agreements, especially with respect to class arbitration issues. READ MORE