Employment Law

California Takes One Step Closer to Imposing Reporting Requirements and Public Shaming for Employer Pay Gaps

When we last checked in on AB 1209, the Gender Pay Gap Transparency Act, the proposed legislation was making its way through the California Senate. After making a few key amendments, the Senate passed the bill on September 7, 2017. The California Assembly approved the amendments on September 11, 2017, and now the fate of AB 1209 lies in the hands Governor Jerry Brown. 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.

READ MORE

Texas Two-Step: Overtime Ruling Does Not Completely End the Obama Rule Dance

On August 31, 2017, Judge Amos Mazzant of the United States District Court for the Eastern District of Texas, issued an order invalidating the Obama-era overtime rules. Finding that the Department of Labor rule exceeded its statutory authority under the Fair Labor Standards Act, the district court appeared to end the saga that had employers furiously determining whether they were going to adjust the pay of a wide swath of their workforces last Fall. However, the decision does not close the books on whether changes to the FLSA white collar exemptions are on the horizon. READ MORE

Orrick Establishes Automated GDPR Readiness Assessment Tool

 

On September 6, 2017, Orrick announced the launch of its innovative online automated GDPR Readiness Assessment Tool. The tool helps organizations assess their state of readiness with the EU’s new General Data Protection Regulation (GDPR) that comes into effect on 25 May 2018. The tool segments the GDPR into 14 workable themes and takes users through a series of questions relating to each theme. READ MORE

No Trial Needed: Ninth Circuit Confirms Summary Judgment Appropriate Where Discrimination Plaintiff Can’t Rebut Legitimate Business Reasons

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.

In Merrick, Plaintiff alleged that his employment was terminated in violation of the California Fair Employment and Housing Act (“FEHA”) when he was laid off as part of a reduction-in-force, allegedly because of his age.  After concluding that Plaintiff had established a prima facie case and that Hilton produced evidence that it terminated Plaintiff’s employment for legitimate, non-discriminatory business reasons, the Court found that Plaintiff failed to produce sufficient evidence to allow a jury to conclude that age was a “substantial motivating factor” in the decision, i.e., that Hilton’s reasons for termination were false or the true reason for the termination decision was discriminatory.  Specifically, “the evidence as a whole [was] insufficient to permit a rational inference that the employer’s actual motive was discriminatory” considering the substantial evidence the employer tendered supporting the business justification for his selection:

  • lost profits during a preceding economic downturn
  • a series of layoffs over several years, the overall age of the workforce
  • the fact that Plaintiff survived previous layoffs despite having also been a member of a protected class at the time of those layoffs, and
  • the business reasons for selecting his position for elimination.

Faced with this evidence, the Merrick court emphasized that a plaintiff “must do more than establish a prima facie case and deny the credibility of [the employer’s] witnesses”; if she does nothing more, summary judgment should be granted. Merrick, 2017 WL 3496030, at *5.

In affirming summary judgment, the Merrick court cited to a line of Ninth Circuit cases – Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000), Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996); and Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994) – that had affirmed summary judgment where a plaintiff failed to adduce adequate proof of pretext.  This contrasts with the Chuang line of cases that could be read to suggest that less is required of plaintiff.

The Merrick decision thus underscores that the summary judgment standard for discrimination cases in the Ninth Circuit is not as lax as some plaintiffs may suggest. Merrick‘s analysis was predicated on the familiar McDonnell-Douglas burden-shifting framework—which the Court held applied to state law discrimination claims under FEHA just as it would to federal Title VII claims—and thus has implications for any claims in federal court analyzed under that framework.

Some Control Is Just Fine: Ninth Circuit Upholds Independent Contractor Status in Jones v. Royal Admin. Servs.

Just the other week, in Jones v. Royal Admin. Servs., the Ninth Circuit reaffirmed the federal common law standard for distinguishing agents from independent contractors and upheld the independent contractor status of telemarketers providing direct sales services for a company, Royal Administration Services, Inc. (“Royal”).

At issue were telemarketers employed by All American Auto Protection, Inc. (“AAAP”), one of about twenty marketing vendors used by Royal to sell vehicle service contracts.  Several recipients of these telemarketing calls filed suit, first against AAAP and then against Royal, alleging violations of the Telephone Consumer Protection Act (“TCPA”).  The telemarketing call recipients alleged that Royal was vicariously liable because the AAAP telemarketers were Royal’s agents.  Royal filed for summary judgment, asserting that the AAAP telemarketers were not its agents, but rather independent contractors.  The district court granted summary judgment for Royal. READ MORE

President Trump’s DOJ Takes Website Accessibility Regulations off the Table

As those interested in website accessibility regulations under Title III of the Americans with Disabilities Act (“ADA”) know, the Department of Justice announced in May 2016 that it would issue a rule governing website accessibility standards for places of public accommodation to take effect in 2018. It now appears that we can expect an even longer indefinite delay. Last month, the Trump Administration launched its Unified Regulatory Agenda, which “provides an updated report on the actions administrative agencies plan to issue in the near and long term.” The Agenda is meant to effectuate Executive Orders 13771 and 13777, which require agencies to reduce unnecessary regulatory burden. According to the Office of Information and Regulatory Affairs, the Agenda “represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.” READ MORE

Fool’s Gold: Second Circuit Vacates Order Affirming Arbitrator’s Certification of Class of Jewelry Store Workers Including Absent Class Members

On July 24, 2017, the Second Circuit Court of Appeals rejected a federal district court’s approval for a class of roughly 69,000 women claiming that Sterling Jewelers, Inc. (“Sterling”) discriminated against them based on sex. The decision overturned a district court ruling that affirmed an arbitrator’s decision to let the women proceed to trial as a class in an arbitration.

Plaintiffs initially filed a class action lawsuit in March 2008, alleging that Sterling’s practices and policies led to women being deliberately passed over for promotions and paid them less than their male cohorts. The case was sent to arbitration several months later under Sterling’s arbitration clause.

In 2009, an arbitrator ruled that Sterling’s dispute resolution program did not specifically bar class actions and allowed claimants to seek class status. From there, the case took a number of twists and turns, which we reported on more fully at the time here.

In June 2013, the employees moved for class certification. In February 2015, the arbitrator ruled that that the employees could proceed as a class in the arbitration.  In November 2015, the district court affirmed the arbitrator’s decision concluding that the arbitrator did not exceed her authority by certifying a class that included absent class members i.e., employees other than the named plaintiffs and those who have opted into the class.  Sterling appealed. READ MORE

Allegations of Misclassification Are Insufficient to Demonstrate Commonality and Typicality According to California Court of Appeal Decision

The California Court of Appeal for the Fourth District held that misclassification alone does not establish liability for overtime violations, and, thus, the fact that members of a putative class were classified as exempt was not sufficient to demonstrate the required commonality and typicality for a misclassification class action to proceed. The court in Kizer v. Tristar Risk Management held that in addition to alleging misclassification, the plaintiffs needed to prove that the misclassification caused harm. The standard announced by the Kizer Court augments the burden on plaintiffs in misclassification wage and hour class actions to establish commonality and typicality. On July 26, the decision was certified for publication. READ MORE

Germany: Employee Monitoring by Keylogger Permitted Only in Exceptional Cases

According to a recent decision of the German Federal Labor Court (Bundesarbeitsgericht – BAG), the use of a keylogger software, which records all keyboard entries on a workplace computer for covert monitoring and control of the employee, is prohibited if there is no suspicion of a criminal offense or severe breach of duty.

Legal Background

Although severely exceeding the limits of permissible private use of the workplace computer and Internet may in principle constitute such a grave infringement of the obligations under the employment relationship that a dismissal with immediate effect may be justified, it must be kept in mind that the employer bears the burden of proof for the employee’s misconduct in case of a claim for unfair dismissal.

If evidence is achieved in breach of the Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG), this generally indicates that its utilization in legal proceedings may infringe the employee’s right on informational self-determination and, therefore, is not admissible evidence. READ MORE