Employment Law

Extra! Extra! Read All About It: California Supreme Court Affirms Reversal of Class Certification Denial for Class of Newspaper Carriers

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The California Supreme Court in Ayala v. Antelope Valley Newspapers, Inc. recently affirmed and remanded the reversal of a denial of class certification in an independent contractor misclassification case, emphasizing the standard terms of the contractual agreements between the parties. The plaintiffs were newspaper carriers for the defendant newspaper publisher who were contracted pursuant to two preprinted standard form contracts. Based on the theory that they were misclassified as independent contractors, plaintiffs alleged overtime, meal and rest break violations, and sought reimbursement for expenses and penalties. READ MORE →

From D-Day to Afghanistan: Honoring Our Veterans by Reemploying Them

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Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge. READ MORE →

Appointment of a Data Protection Officer in Germany: You Wanna Avoid Trouble? Then Make Sure You Appoint the Right Person!

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Data Privacy

Data protection law is on the rise. Courts as well as local authorities become increasingly sensitive to the misuse of any individual’s personal data that applicable statutory provisions in Germany, such as the Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”), intend to prevent. READ MORE →

Ending in a Draw: In Iskanian v. CLS Transportation, the California Supreme Court Upholds Class Action Waivers in Arbitration Agreements, But Also Makes PAGA Claims Unwaivable

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Ever since the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, California employers hoped this day would come. In a predictable result, the California Supreme Court today acknowledged that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA). In so doing, the Court overruled its 2007 decision in Gentry v. Superior Court which effectively had barred class action waivers for wage and hour cases. But the Court’s 6-1 plurality decision also bolstered an alternate method for bringing Labor Code claims in court by declaring that actions brought under the Private Attorneys General Act (Labor Code § 2968 et seq.) are not waivable by private agreement and thus not subject to compelled arbitration. READ MORE →

Home Sweet Home: 6th Circuit Rules that Showing up for Work is not Required

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Changes in telecommuting practices may be around the corner for many employers, as the recent 2-1 decision in EEOC v. Ford Motor Co., 2014 FED App. 0082P (6th Cir. 2014) may usher in significant changes in what constitutes a reasonable accommodation for an employee with a disability under the ADA. According to the Sixth Circuit, given the advances in technology, employers need to be more open to telecommuting arrangements and cannot assume that coming to work is always an essential job function. But the U.S. Chamber of Commerce warns—in an amicus brief filed in early June—that these changes may have a “devastating” effect on employers by allowing employees to choose “where and when” they want to work. READ MORE →

SEC Charges Hedge Fund Adviser with Whistleblower Retaliation under Dodd-Frank

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Whistle

On June 16, 2014, the SEC issued its first-ever charge of whistleblower retaliation under section 922 of the Dodd-Frank Act, charging a hedge fund advisor and its owner with “engaging in prohibited principal transactions and then retaliating against the employee who reported the trading activity to the SEC.” READ MORE →

Try, Try Again: The California Supreme Court Sends “Fundamentally Flawed” Duran Case Back to the Trial Court

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Employment class action defendants in California who were hoping for an unequivocal statement that statistical sampling has no place in class actions are likely to be disappointed by today’s ruling in Duran v. U.S. Bank, N.A.  The California Supreme Court cautiously left all avenues to certification open, stating that a “[s]tatistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions.” (Emphasis added.)  But despair not!  The bulk of the opinion agreed with the court of appeal in finding the trial court’s methods “profoundly flawed,” recognized the “thorny” issues of proof that arise in misclassification cases, and reaffirmed a court’s obligation to consider the manageability of individual issues in certifying a class action.  The Court’s instructions to lower courts and litigants to determine – as an integral part of class certification – whether the case can be manageably tried are likely to aid employers in certification battles to come.     READ MORE →

U.S. Commodity Futures Trading Commission Issues First Whistleblower Award

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Whistle

On Monday, May 19, 2014, the U.S. Commodity Futures Trading Commission (“CFTC”) issued its first award to a whistleblower under its Dodd-Frank bounty program.

The Commission will pay $240,000 to an unidentified whistleblower who “voluntarily provided original information that caused the Commission to launch an investigation that led to an enforcement action” in which the judgment and sanctions exceeded $1 million. The heavily redacted award determination on the CFTC’s website does not reveal the name of the implicated company, the nature of the wrongdoing involved, the percentage of bounty the whistleblower received (which is required to be between 10 and 30 percent pursuant to the statute), or the factors considered in determining the percentage of the bounty.

Prior to this first grant of an award to a whistleblower under the CFTC’s Dodd-Frank bounty program, there were 25 denials of award claims. The reasons for the denials primarily fell into one or more of several categories:

  1. the individuals provided information before the passage of Dodd-Frank;
  2. they did not file a form TCR as required by the regulations;
  3. they did not provide information “voluntarily” but rather in response to a Commission request; and/or
  4. the information did not cause the Commission to open or expand an investigation or significantly contribute to a success of a Commission matter.

Time will tell whether this first award will have any effect on the number of whistleblowers who report to the CFTC or the quality of information the Commission receives.

The Joint-Employer Standard: Like All Good Things, Is It About To Meet Its End?

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On May 12, the National Labor Relations Board issued a notice and call for amicus briefs to address whether the Board should maintain its existing joint-employer standard or adopt a new one. Notice and Invitation to File Briefs, Browning-Ferris Indus. of California, Inc., Case 32-RC-109684 (May 12, 2014). READ MORE →

The EEOC Takes Aim, Once Again, at Employers’ Separation Agreements

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On April 30, 2014, the U.S. Equal Employment Opportunity Commission filed suit against a private college, charging for the second time in two months that an employer’s severance agreement was unlawful. The EEOC alleged that CollegeAmerica, Inc.’s Separation and Release Agreements violated federal law by conditioning the receipt of severance payments and benefits on the employee’s promise not to file a charge with, or cooperate in investigations by, the EEOC against CollegeAmerica. READ MORE →