Trish Higgins is an employment attorney with a California practice focused on
complex employment litigation and counseling.
Trish has extensive experience successfully defending class actions and
individual employment claims, including claims of discrimination, wage-and-hour,
sexual harassment, disability, retaliation and WARN Act claims. She has
particular expertise representing companies in the financial services
industry. Trish handles employment matters in federal and state
courts, arbitrations, and administrative proceedings. She also counsels and trains employers on employment issues. Trish is a frequent author and lecturer on employment law issues, including defending class actions, preventing discrimination claims, and sexual harassment prevention training. She serves as the Chair of the Wage-and-Hour Subcommittee of the ABA Litigation Section.
Some of Trish’s recent notable representations include:
- In re Morgan Stanley Smith Barney Wage-and-Hour Litigation: In this multi-district litigation, Trish obtained dismissal of business expense claims and defeated certification of nationwide FLSA claims challenging the exempt status of financial advisors.
- Bloemendaal v. Morgan Stanley: In this class action asserting claims of “compelled patronage” based on application of an employee trading policy, Trish obtained summary judgment on federal preemption grounds, which was affirmed by the Ninth Circuit.
- SEIU v. Medical Properties Trust: In this representative WARN action based on a hospital’s change of ownership, Trish obtained summary judgment, which was affirmed by the Ninth Circuit.
- Mass v. Thomas Weisel Partners: In this wage-and-hour class action asserting claims that banking analysts were misclassified as exempt, Trish obtained summary judgment.
- Drake v. Morgan Stanley: In this wage-and-hour class action asserting misclassification and business expenses claims on behalf of financial advisors, Trish defeated class certification and obtained summary judgment on unfair competition claims.
- California Assembly: Trish provides sexual harassment training for the Members and employees of the California Assembly.
Following a vacate and remand order by the United States Supreme Court for employing the de novo standard of review rather than the abuse of discretion standard, the Ninth Circuit revisited the standard for relevance in the EEOC subpoena context. EEOC v. McLane Co., No. 13-15126 (9th Cir. May 24, 2017).
In McLane, the EEOC was investigating a charge of gender discrimination which was based on the employer’s use of a physical capacity strength test. As part of its pre-litigation investigation into that charge, of gender discrimination filed by an ex-McLane Company employee, the EEOC issued a subpoena for “pedigree information” (i.e., name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the physical capability strength test.
Companies operating in the “on-demand” or “gig economy” have enjoyed tremendous success in recent years, as emerging technologies and shifts in consumer tastes have buoyed their growth. These companies span a cross-section of industries (transportation, food delivery, lodging) but have one thing in common: each aims to deliver traditional services more efficiently by connecting consumers directly with service providers.
But as we all know by now, success often begets legal challenges. Take Uber, for example. The company has faced a thicket of litigation in recent years, most notably related to the question of whether its drivers are employees or independent contractors.
Like many companies in today’s economy, Uber has implemented an arbitration policy as a way to efficiently resolve disputes. Below we recap some of the developments in this area and preview some legal issues that companies will want to monitor in the months ahead. READ MORE
Paid sick leave is on the rise, as we reported here, here, here, and here. As we approach the one-year compliance anniversary for state-mandated paid sick leave, employers now face additional compliance wrinkles in the Los Angeles and San Diego markets. Earlier this month, both Los Angeles and San Diego passed paid sick leave and minimum wage ordinances that take effect (and require compliance) as soon July 2016.
The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998. The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades. The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention.” The 30-day input period on the guidance ends on February 24, 2016.
On Monday, July 13, 2015, California Governor Jerry Brown signed a much anticipated “fix it” bill that amends the Healthy Workplaces, Healthy Families Act of 2014, clarifying the requirements of California’s sick leave law.
The fixes bring welcome clarity and revisions to key provisions that, for most employers, will make the law easier to administer. Yes, it’s two weeks late—the intent was for the bill to pass before the July 1 deadline for employers to implement the bulk of the original law’s requirements. But the delay was due in large part to several revisions that the legislature made in hopes of getting it right this time. And thanks to an urgency provision, the amendments go into effect immediately. The full text of the amendment (AB 304) is available here, but we’ve highlighted a few key provisions below. You should also visit our prior blogs on this subject here to make sure you’re keeping up with the feverish pace of things.
A Rhode Island graduate student has filed a lawsuit against a textile company, alleging that it discriminated against her because she used medical marijuana. The complaint, filed by the local ACLU chapter on behalf of University of Rhode Island student Christine Callaghan, alleges that Darlington Fabrics Corporation rescinded a paid internship offer because Callaghan was a registered medical marijuana cardholder. According to the complaint, it appeared that Callaghan was going to be given the internship until, during a meeting with a Darlington HR representative, Callaghan disclosed that she suffered from migraines and used medical marijuana to treat her condition—but that she would not bring marijuana with her onto the premises or show up for work after having taken marijuana. A few days after the meeting, the representative contacted Callaghan and told her that Darlington would not be offering her the internship because of her status as a medical marijuana patient. The suit is believed to be the first to invoke the anti-discrimination provisions of Rhode Island’s medical marijuana law. Under the law, schools, employers, and landlords may not “refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c).
After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements. The answer to whether such waivers should be retained is not as straightforward as one might expect.
Last week, the California Supreme Court issued its decision in Peabody v. Time Warner Cable, Inc., deciding that employers may not apply commission payments to earlier pay periods for the purposes of establishing that an employee meets the minimum wage component under the commissioned employee exemption.
Last week President Obama continued his administration’s push to tackle pay equity issues by taking executive action to put federal contractors’ compensation practices under greater scrutiny. On April 8, 2014, the President signed a memorandum and executive order designed to address race and gender-based disparities in compensation. The memorandum directs the Department of Labor (“DOL”) to propose a rule within 120 days requiring federal contractors and subcontractors to submit “summary data” on employee compensation by race and sex to the DOL using a “tool” to be developed by the agency. The executive order signed along with the memorandum bans federal contractors from retaliating against employees for discussing their compensation with each another in an effort to “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices” in pay. READ MORE
Back on October 8, 2013, we highlighted three cases currently pending on the United States Supreme Court docket that employers will definitely want to follow. The cases address issues ranging from the proper interpretation of Sarbanes Oxley’s whistleblower provision to the breadth of Presidential NLRB appointment power, to what constitutes “changing clothes” under the FLSA. Although decisions have not yet come down, important developments have taken place in all three cases. READ MORE