News & Analysis

California Supreme Court prohibits on-duty and on-call rest periods

On December 22, 2016, the California Supreme Court held that state law prohibits on-duty and on-call rest periods and affirmed a judgment of approximately $90 million in statutory damages, interest, and penalties against an employer for failing to provide rest periods. This case highlights the significant potential liability you may face for not providing rest periods in accordance with California law.

Employers should use caution when drafting and presenting arbitration agreements

The California Court of Appeal recently rebuffed an employer's attempts to compel arbitration of a former employee's discrimination claims, without reaching the question of whether the terms of the alleged agreement to arbitrate were fair. While employers tend to focus on ensuring that their arbitration agreements don't contain "unconscionable" or unreasonable provisions, they sometimes ignore the basic threshold requirement that the parties actually entered into an arbitration agreement. The appellate court held that the employer and the employee never reached an agreement to submit any or all of her claims to final and binding arbitration. Employers should ensure that they carefully draft, present, execute, and retain all agreements to arbitrate.

Employee's inability to return to work dooms disability case

Winning summary judgment (a judgment in your favor without a full trial) in a disability discrimination case is rare for employers in California. Disability cases are often factually messy and involve complex legal issues. However, it can be done, as the California Court of Appeal's recent decision in Streich v. JCM Partners demonstrates. Although the court's opinion is unpublished, it's informative about how you can develop evidence and use an employee's conflicting or self-serving statements about his medical condition to defeat his discrimination claims.

EEOC guidance delves into intricacies of national origin discrimination

Discrimination based on national origin has been unlawful since passage of the Civil Rights Act of 1964. Lately, however, the Equal Employment Opportunity Commission (EEOC) has seen an uptick in the number of national origin discrimination claims. In fiscal year 2015, approximately 11 percent of the 89,385 private-sector charges filed with the agency included claims of national origin discrimination.

9th Circuit allows representation claim against union

When a union worker objects to being let go, she typically is able to file a grievance and, if necessary, have the matter resolved through binding arbitration. But if the union fails to pursue her claim, she has the option of filing a federal lawsuit against both the employer for violating the collective bargaining agreement and the union for not pressing her claim. The 9th Circuit recently reversed a trial court's decision and held that a worker's claims against her union could proceed.

Workplace Trends

Glassdoor studies gender pay gap in tech. The gender pay gap in the tech industry is real even when researchers use a control for men and women choosing to work in different roles, according to the chief economist at Glassdoor. In a November post on Glassdoors economic research blog, Andrew Chamberlain said millions of the companys salary reports from around the world show the gap even after adjusting for factors such as age, education, years of experience, location, year, job title, and company. Among 16 of the tech roles for which Glassdoor has data, 12 had gender pay gaps above the U.S. adjusted average pay gap of 5.4%.

Starbucks baristas' tax-withholding claims belong in Oregon court

The 9th Circuit recently required that a class action lawsuit be sent back to state court because the federal trial court had no authority to act on the claims presented.

Union Activity

Unions speak out against court action on overtime rule. Labor interests voiced their disapproval of a Texas federal judges action in November that thwarted a new overtime rule from taking effect on December 1, 2016. The judge issued a preliminary injunction blocking the rule change, which would have made millions more workers eligible for overtime. Under the new rule, workers earning less than $913 a week wouldnt qualify for exempt status under the Fair Labor Standards Act (FLSA). Therefore, they would be eligible for overtime pay. President Obamas decision to update the overtime thresholdwhich previous presidents have made with no legal challengewas proper, legal, and well within his authority, Mary Kay Henry, international president of the Service Employees International Union (SEIU), said after the November 23 court decision. This decision was wrongly decided and should be overturned. The International Brotherhood of Teamsters also issued a statement criticizing the judges decision. The Teamsters statement said the rule change would have stopped employers f

AR Supreme Court upholds ban on labor protests on Walmart property

The Arkansas Supreme Court recently held that the National Labor Relations Act (NLRA) doesn't preclude Walmart's state-law trespass claims against labor protesters and affirmed (with modifications) a lower court's order prohibiting the demonstrators from trespassing on Walmart's private property.

Behind the wheel: No discriminatory motive in city truck driver's firing

The U.S. 8th Circuit Court of Appeals (whose rulings apply to all Arkansas employers) recently affirmed an Arkansas district court's ruling that a city employee failed to establish a case of race and age discrimination after he was fired for insubordination.