Leo Moniz

Managing Associate

Sacramento


Read full biography at www.orrick.com
Leo Moniz is an associate in Orrick's Sacramento office and a member of the Employment Law and Litigation practice group. His practice focuses on employment litigation and counseling.

Leo has experience litigating a variety of employment disputes, from wage-and-hour class actions to single plaintiff discrimination claims. 

Prior to law school, Leo worked as a newspaper reporter in Southern California and taught high school English in the greater Sacramento area.

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Posts by: Leo Moniz

Joint Responsibility: Companies Should Keep an Eye on the Shifting Legal Landscape of Joint Employment

As Congress considers a bill to change the definition of joint employment under two federal statutes, the Supreme Court is poised to decide whether to take up the issue under the Fair Labor Standards Act, the U.S. Department of Labor has withdrawn administrative guidance issued by the prior administration, and several states have enacted or considered joint employment legislation.  In this rapidly evolving legal landscape, companies may want to keep a close eye on a doctrine that can lead to unexpected legal exposure.

Under the concept of joint employment, multiple companies can be considered the employers of a single worker, and thus potentially jointly and severally liable for compliance with employment laws, such as wage-and-hour requirements.  Joint employment can occur in two main contexts: “horizontal” joint employment, when a single employee works for two different but related entities, and “vertical” joint employment, which can arise when workers are obtained by an intermediary to work on behalf of some other entity (for example, when a company uses a subcontractor or a staffing agency).  Surprisingly, there is no single test or source of law for determining whether companies are joint employers; rather, different tests exist under common law and various federal and state statutes.  Even when applying the same statute, courts in different jurisdictions may use diverging standards, making joint employment a tricky and complex issue for companies to navigate.

For example, the federal courts have disagreed about the appropriate formulation of the test for determining joint employment under the FLSA, with different multi-factor tests in use by one or more circuits.  In a case decided earlier this year, DirecTV v. Hall, the Fourth Circuit rejected the approach followed by a number of other circuits and applied a new test, holding that courts must focus on the relationship between putative joint employers, not just the relationship between each entity and a worker.  Under the Fourth Circuit’s new test, joint employment may be found where two or more companies are “not completely disassociated” with respect to the worker’s work—a standard that could lead to widespread findings of joint employment.  This approach could deter companies from using subcontractors or staffing companies or engaging in similar relationships, given the risk that that even indirect influence over a worker’s terms and conditions of work could lead to a finding of joint employment and ensuing liability.  DirectTV has filed a cert petition in the case, and a number of business groups have filed amicus briefs urging the high court to grant the petition.

A brief for a group of organizations including the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Retail Federation highlights the divergence between the Fourth Circuit’s new approach and the tests followed in other circuits, urging the Supreme Court to resolve the circuit split.  The brief argues that geographic consistency in the interpretation of the FLSA is particularly important for companies that do business in multiple regions, and contends that the Fourth Circuit erred by misreading a federal regulation in a manner that even the U.S. Department of Labor has disagreed with.  Possibly signaling interest in taking up the matter, on September 20, 2017, the Supreme Court asked the respondents to file a response, which is due next month.

In the meantime, developments continue elsewhere.  A year and a half after the Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation under the Obama Administration that took an expansive view of joint employment under the FLSA and the Migrant and Seasonal Agricultural Worker Protection Act, new U.S. Secretary of Labor Alexander Acosta recently announced the withdrawal of that interpretation.

A month later, lawmakers in the U.S. House of Representatives introduced the Save Local Business Act (H.R. 3441), which would amend the FLSA and the National Labor Relations Act to provide that a company can be a joint employer only if it “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment.”  On September 13, 2017, the House Committee on Education and the Workforce held a hearing on the bill, which remains pending.

The controversial 2015 Browning-Ferris decision by the National Labor Relations Board, which upended decades-old precedent on the test for joint employment under the NLRA, remains on appeal at the D.C. Circuit.  Following that decision, a number of states have enacted or considered legislation to provide that a franchisor is generally not the employer of its franchisees or the employees of those franchisees.

Given the rapid pace of these developments, companies should pay close attention to the changing legal landscape and may wish to consult employment counsel for advice on avoiding liability as joint employers.

Upon Further Review: Supreme Court Weighs Deference Due District Courts in EEOC Subpoena Proceedings

In a recent oral argument before the U.S. Supreme Court, the justices considered a narrow procedural issue that could have broader implications for the subpoena power of the U.S. Equal Employment Opportunity Commission (“EEOC”).

At issue in McLane Company, Inc. v. EEOC is the standard of review applicable to district court decisions in proceedings brought to compel compliance with EEOC subpoenas issued in administrative investigations.  While all the other circuits to have considered the issue have applied an abuse-of-discretion standard, the Ninth Circuit held that such decisions are subject to de novo review. READ MORE

Latest California Equal Pay Legislation Targets Race and Ethnicity

As California employers adjust to recent amendments to the state’s Equal Pay Act, additional changes are looming.  As we reported here, last year, California adopted the Fair Pay Act, which provides new pay equity provisions related to employees of the opposite sex.  Those amendments took effect on January 1, 2016.  Now, California lawmakers are setting their sights on pay disparities based on race and ethnicity.  On February 16, 2016, California Senator Isadore Hall III (D-South Bay) introduced Senate Bill 1063, known as the Wage Equality Act of 2016 (“SB 1063”), which seeks to expand pay equity requirements beyond sex to include race and ethnicity.

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Managing PAGA Claims: A Recent Decision Points the Way to Defeat Representative Actions

A recent federal court decision illustrates how defendants may be able to defeat PAGA claims in California.  Brown v. American Airlines, Inc., No. CV 10-8431-AG (PJWx), 2015 WL 6735217 (C.D. Cal. Oct. 5, 2015) is the latest case to dismiss PAGA claims based on the presence of numerous individualized issues that render the case unmanageable.  This decision provides hope for employers in the face of rulings by the California Supreme Court and certain federal district courts that PAGA actions need not meet class certification requirements.

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California Supreme Court May Limit The Scope Of PAGA Plaintiffs’ Access to Statewide Discovery

The California Supreme Court is poised to clarify what limits may apply to burdensome discovery demands in litigation under California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”), which allows employees to bring non-class representative actions against employers on behalf of themselves and other “aggrieved employees” for alleged violations of the Labor Code.

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A Win for Employers: Court Denies Class Certification of Rest Break Claim Where Plaintiff Alleged Employer Did Not Have a Rest Break Policy

A recent federal district court decision denying a motion for class certification of wage-and-hour claims reflects continuing disagreement among courts in California regarding the suitability for class treatment of meal and rest break claims when an employer has no written break policy.

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Don’t Let California’s Sick Leave Law Leave You Sick this New Year’s: Be Prepared to Comply on January 1!

California employers are facing a healthy dose of new requirements next month as the notice and posting provisions in the state’s recently enacted paid sick leave law take effect.  To help employers comply before ringing in the New Year, the California Labor Commissioner has published a revised Wage Theft Notice and a new workplace poster.

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Federal Preemption Defense Running Out of Gas? 

Recent decisions by the Ninth Circuit Court of Appeals and the California Supreme Court have thrown a road block in the way of employers relying on a federal statute to preempt certain state wage-and-hour law claims.  At issue is whether the Federal Aviation Administration Authorization Act (“FAAAA”) precludes truck drivers from asserting claims for meal and rest break, minimum wage, and other violations under California law.  At least for now, the road is clear for such claims.

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Can You Hear the Whistle Blowing?: SEC Punishes Company that Did Not Address Fraud Allegations by Whistleblower

Whistle

The U.S. Securities and Exchange Commission recently announced the latest whistleblower bounty awarded under the Dodd-Frank Act, which authorizes rewards for original information about violations of securities laws.  Whistleblowers can receive 10 percent to 30 percent of the money collected in an SEC enforcement action where the monetary sanctions imposed exceed $1 million.

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Where the Whistle Blows: SEC Invites Circuit Split Over Reach of Dodd-Frank Anti-Retaliation Provision

Whistle

The Securities and Exchange Commission recently weighed in on a whistleblower case pending in the Second Circuit, urging the court in Liu v. Siemens, A.G. to adopt the SEC’s interpretation of the Dodd-Frank Act’s anti-retaliation provision.  If the Second Circuit agrees, its ruling would create a circuit split over whether Dodd-Frank protects from retaliation internal whistleblowers who do not make a report to the SEC, likely teeing up the issue for resolution by the Supreme Court.   READ MORE