News & Analysis

Misclassification alone is insufficient for class treatment

Are certain classes of your employees routinely working overtime? If so, are they properly classified as exempt or nonexempt? Wage and hour class actions continue to be large thorns in the sides of many employers, and this recent decision serves as a good reminder of how critical it is for you to review your overtime policies, job descriptions, and exemption classifications.

Court not so SLAPP happy over hospitals' action against doctor

Employers relying on the Strategic Lawsuit Against Public Participation (anti-SLAPP) procedure to strike retaliation claims must be sure that the anti-SLAPP action is based soundly on protected activity. There is an important distinction between protected statements or conduct leading to the act for which retaliation liability is asserted and the act itself. If the act isn't protected, the anti-SLAPP action will fail.

CA court: Some of employee's claims must go to arbitration

Employers often have applicants or newly hired employees sign arbitration agreements. However, the California Supreme Court has held that an employee's representative action brought on behalf of himself and other current and former employees under the Private Attorneys General Act of 2004 (PAGA) is not subject to arbitration. But what happens if an employee files a lawsuit that includes both representative claims under the PAGA as well as individual claims for unpaid wages? May the employer enforce arbitration of the individual claims for unpaid wages, even though PAGA claims aren't subject to arbitration? A recent case before the California Court of Appeal answers that question.

Crimes and misdemeanors: more limitations on employers

It's August 2017—are your policies and practices in compliance with the new regulations limiting consideration of criminal history in employment decisions? The California Fair Employment and Housing Council's Consideration of Criminal History in Employment Decisions Regulations became effective July 1, 2017. These regulations are substantially similar to the guidance adopted by the Equal Employment Opportunity Commission (EEOC) in its April 2012 "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." If you haven't recently reviewed your policies and practices, they may very well be in violation of California's recently revised regulations.

9th Circuit says ADEA applies to small public employer

The federal Age Discrimination in Employment Act (ADEA), like most other antidiscrimination statutes, specifies to which employers it applies. In the private sector, the ADEA protects against age discrimination by employers with more than 20 employees. A recent decision by the 9th Circuit Court of Appeals (whose rulings apply to all California employers) concluded that the 20-employee threshold doesn't apply to public-sector employers.

Employer's lawyer in hot water after threatening worker with possible deportation

Only an employer can violate the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA). But the statute's nonretaliation provisions are broader and may sweep in "any person" who retaliates against an individual based on conduct protected by the FLSA. The 9th Circuit recently found an employer's outside lawyer to be such a person after the lawyer attempted to arrange the detention—and possible deportation—of an undocumented worker when he appeared for a deposition.

9th Circuit again orders enforcement of EEOC investigative subpoena

Employers that resist requests for information from the Equal Employment Opportunity Commission (EEOC) may find themselves on the losing side if they go to court over the issue. That's what happened a couple of years ago when the 9th Circuit said that a company had to turn over information sought by the EEOC. The company was persistent and took the matter to the U.S. Supreme Court, which concluded that the 9th Circuit had applied the wrong legal standard in its review. But two years later, applying the newly prescribed standard, the 9th Circuit reached the same result as before. The EEOC subpoena was again ordered to be enforced.

Your tax dollars at war

Does Title VII of the Civil Rights Act of 1964, the basic federal antidiscrimination law, prohibit sexual orientation discrimination? There are good arguments on both sides of the question.

Have it your way: Court sides with labor organizer

The U.S. 8th Circuit Court of Appeals (whose decisions cover Arkansas employers) recently enforced a National Labor Relations Board (NLRB) order that found a Burger King franchisee violated the National Labor Relations Act (NLRA) by declining to hire an employee for having engaged in protected labor activity.

Tick tock: Employer didn't discriminate against employees fired for time theft

The 8th Circuit recently affirmed a lower court's dismissal of two employees' lawsuits claiming that they were terminated as a result of race discrimination.