News & Analysis

Red Bull can't compel employee to arbitrate age, sexual harassment claims

In this case, a midlevel sales manager filed an age discrimination and sexual harassment lawsuit, and the employer sought to compel arbitration based on the arbitration agreement he signed when he was hired. The sales manager argued the agreement was unenforceable because it wasn't mutual, it excluded from arbitration claims under the company's confidentiality agreement, and it limited arbitral discovery (i.e., the exchange of evidence). The trial court initially determined the agreement was enforceable but then changed its mind. The appellate court examined whether the agreement's lack of mutuality and limitations on discovery rendered it unenforceable.

If you have nothing nice to say, don't say anything at all

Social media can often connect employees in a meaningful way, particularly on employer-run social media pages. However, it's equally important to ensure employees are conducting themselves properly and following sound policies when they discuss workplace issues, and they should be held to appropriate policy standards. Those principles were front and center in a recent case in which an appellate court reviewed the conduct of a school counselor who apparently let her emotions guide her public commentary.

Rare as a unicorn: a PAGA case favorable for employers

A California truck driver recently filed a claim against his employer under the state's Private Attorneys General Act (PAGA) containing the usual allegations: meal and rest period violations, failure to provide accurate wage statements, and failure to pay wages owed upon termination. When a previous class action filed by another employee asserting the same claims was settled, the truck driver thought he could save his claims by opting out of the settlement. His attempt didn't go as planned, however, resulting in that rarest of beasts: a PAGA outcome in the employer's favor.

You don't have to cross state lines to be involved in interstate commerce

The Federal Arbitration Act (FAA) states that most arbitration agreements are as valid and enforceable as any other contracts. One exemption relates to "seamen, railroad employees, [and] and other classes of workers engaged in foreign or interstate commerce."

California News in Brief

Building contractor reaches settlement over racial slurs, noose. A San Jose-based electrical subcontractor at the Apple Park construction project, Air Systems Inc. (ASI), will pay $1.25 million to eight African-American former employees and provide other relief to settle a racial harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the agency announced August 21. The suit claims the harassment included racist graffiti of swastikas and racial epithets drawn on the walls of the portable toilets at the construction site as well as a noose at the worksite hung next to a scrawled note containing other expletives and a threat of lynching. Also, the suit claims the company failed to act when notified by two African-American employees that a white coworker had taunted them with racial pejoratives. In addition to the monetary settlement, the employer must hire an equal employment opportunity consultant to help implement terms of the settlement.

Guidance for employers as 'Strike for Black Lives' unfolds

On July 20, 2020, organizers and labor organizations across the country held a "Strike for Black Lives"—a national walkout of workers in support of "dismantling racism and white su-premacy to bring about fundamental changes in our society, economy and workplaces." To limit liability and keep their businesses running, employers must understand employees' legal rights to participate in a one-day political strike. The National Labor Relations Board (NLRB) has inter-preted the National Labor Relations Act (NLRA) to provide important protections to employees who engage in such strikes, and employers should respect the analysis and respond accordingly.

WA employers get much-needed guidance on paid sick leave law, new overtime rules

Employers have been awaiting guidance from the Washington Department of Labor and Industries (L&I) about the state's paid sick leave law passed in 2016 and new overtime rules announced in 2019 and effective July 1, 2020. Over the last few months, L&I has been busy and recently adopted new employment standards (ES) administrative policies for the two wage and hour topics.

Arizona employers urged to help with unemployment fraud detection

Before COVID-19, the Arizona Department of Economic Security (DES) paid out approximately $3 million per week in benefits. The increase in unemployment claims as a result of the pandemic led to a weekly high payout of $287 million the week of June 6 (although the total included some retroactive payments for multiple weeks). Even as many businesses have reopened, jobless claims remain fairly steady at $167 million in benefits per week. With talks of extending federal benefits, employers are faced with continued pushback from employees receiving more benefits to stay home, even as they are recalled to work.

Oregon court rules on protection for infectious disease whistleblower

A recent Oregon court decision based on facts arising long before COVID-19 may shed light on some of the issues facing employers when employees raise virus-related safety concerns.

What businesses should know about OSHA's supplemental reopening guidance

The Occupational Safety and Health Administration (OSHA) recently issued guidance on returning to work for businesses deemed nonessential. The guidance is intended to supplement the agency's previously issued guidance on preparing workplaces for COVID-19 as well as the Centers for Disease Control and Prevention's (CDC) guidelines for "Opening Up America Again." OSHA's guidance is also supposed to supplement state and local information and reopening requirements. You can use the guidance to develop policies and procedures to ensure your employees' safety and health.