News & Analysis

Wet Seal's arbitration agreement: a cautionary tale

The California Court of Appeal recently denied an employer's appeal of a lower court's denial of its motion to compel arbitration of a lawsuit filed by a former employee that included claims under the Private Attorneys General Act (PAGA). The court of appeal held that the arbitration agreement contained a PAGA waiver that was impermissible. The appellate court invalidated the entire agreement for several reasons, including the fact that the agreement stated the waiver was a material term and the entire agreement would be void if the waiver was found unenforceable.

Patience pays off: Employer put up with performance, attendance issues long enough

For 11 years, Yvonne Hernandez took an average of 457 hours of protected leave per year from her job at AT&T. In the years when she wasn't eligible for protected leave, AT&T granted her unpaid leave. In addition to her attendance issues, she was frequently tardy and became a poor performer. AT&T warned her several times that she would be suspended if her attendance and performance didn't improve. Nevertheless, she continued to perform poorly and have attendance issues, and she was given a dismissal warning.

Employer defeats employees' race discrimination claims but can't collect its attorneys' fees

In a recent case, a trial court entered judgment in favor of an employer, finding it terminated the employees for legitimate nondiscriminatory reasons after it conducted an investigation and determined that they had engaged in fraudulent collection practices. The court awarded the employer more than $620,000 in attorneys' fees. The employees appealed both the judgment and the attorneys' fee award.

Auto dealership service reps may seek FLSA overtime

It's risky for an employer to treat a group of employees as exempt from overtime when that treatment isn't clearly authorized by the Fair Labor Standards Act (FLSA). That was the lesson from a recent decision of the U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers). In the court's second consideration of the case, the result was the same: Service advisers at a California auto dealership are entitled to file overtime claims.

9th Circuit gives green light for trial of discrimination, retaliation claims

Occasionally, there is no real dispute about key facts in a lawsuit, and a trial court may then dispose of the case without a trial. Rarely will that be true for a claim of discrimination or retaliation, as illustrated by a recent decision of the 9th Circuit. The divided appellate panel held that the evidence presented by an Oregon worker raised enough questions to require trial on his claims.

Smunday doesn't cut the mustard

Advertising is a cool job because there is a legal concept associated with it called "puffing": You generally can't sue somebody for advertising that they are great or huge or the best because a consumer has no business believing that stuff anyway. How liberating!

Agency Action

New EEOC publication explains rights related to mental health conditions. The Equal Employment Opportunity Commission (EEOC) in December 2016 issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA). The document, titled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, explains that applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They also may have a right to reasonable accommodations at work. The document answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the EEOCs role in enforcing the rights of people with disabilities.

Fired cancer survivor's ADA claim fails

The U.S. 8th Circuit Court of Appeals (whose decisions cover Arkansas employers) recently affirmed a district court's ruling that an employee failed to establish a case of disability discrimination and retaliation.

Back at ya: employee's low-back injury compensable

The Arkansas Court of Appeals recently affirmed the Arkansas Workers' Compensation Commission's (WCC) award of benefits to an employee who claimed a gradual-onset injury from lifting and stacking wood during her 12-hour shifts over a five-year period.

Probably best to return worker to his previous position

Q One of our employees was injured at work, and in accordance with a note from his doctor, we adjusted his duties and lowered his hourly rate. His doctor now says he has fully recovered and can go back to his previous position. However, someone else has already taken over his original duties and has been delivering better performance. Do we have to return the injured employee to his previous position, or can we leave him in the modified position?