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Employment Law
I have a substantial amount of experience in employment law, representing both employers and employees. I am currently co-counsel for the defense in a large class action wage and hour case, and have also advised employers on classification and traditional labor law issues. I am also representing a number of employees in wrongful termination and discrimination cases. In the past, I have handled age discrimination, sex discrimination, and sexual harassment claims on behalf of both employees and employers, as well as claims based on disability and race discrimination.For example, I tried seven sex discrimination cases on behalf of State Farm Insurance Company as part of an enormous class action by women who claimed they were denied the opportunity to become agents. I obtained a landmark ruling from the California Sixth District Court of Appeal on behalf of a terminated executive, declaring the company's contracts requiring the arbitration of employment claims unenforceable. I have also handled wrongful termination claims based on contract, as well as unfair competition claims based on alleged breaches of confidentiality restrictions and restrictive covenants.
Below are some re-printed posts on various employment-related issues:
Tuesday, February 02, 2010
Shortened Time Period to File Wage and Hour Claims Unenforceable
In Pellegrino v. Robert Half International, Inc., the Fourth District Court of Appeal in California affirmed summary judgment in the employees' favor, holding that a provision in the parties' employment agreements requiring that any claims be brought within six months of termination of employment, was unenforceable as to plaintiffs' statutory claims. Building on prior cases holding that Labor Code provisions governing wages and hours are unwaivable, the Court of Appeal determined that it would contravene public policy to deny these employees a remedy for unpaid wages. It could be argued that Section 17200 itself sets an arbitrary cut-off date for wage and hour claims that has nothing to do with any public policies in the Labor Code, but since the limitations period under the unfair business practices statute is longer than the periods in the Labor Code, presumably that could not violate any public policies regarding the payment of required wages.
The Court also affirmed a finding after trial that the plaintiffs in this case, who were account executives at a temporary employment agency, had been improperly mis-classified as exempt.
Finally, in another interesting discussion, the Court of Appeal found that defendant had not been denied the right to jury trial by the court's decision to try the equitable issues under Business and Professions Code Section 17200, which included the classification issues, to the court. (The parties' stipulation regarding the amount of damages applicable to each employee's claim made trial of any legal issues unnecessary.)
The Court also affirmed a finding after trial that the plaintiffs in this case, who were account executives at a temporary employment agency, had been improperly mis-classified as exempt.
Finally, in another interesting discussion, the Court of Appeal found that defendant had not been denied the right to jury trial by the court's decision to try the equitable issues under Business and Professions Code Section 17200, which included the classification issues, to the court. (The parties' stipulation regarding the amount of damages applicable to each employee's claim made trial of any legal issues unnecessary.)
Monday, July 20, 2009
Card Check without Card Check
It now appears that the version of the Employee Free Choice Act that is likely to pass Congress will not include its most controversial provision, which would have made it possible to certify a union without an election. The bill will, however, contain a number of provisions that will make it substantially easier for unions to organize. They will be able to call elections on very short notice, perhaps as little as five days, if they collect a sufficient number of cards. They will obtain access to the employer's property to campaign. And employers may be prohibited from requiring employees to attend meetings at which the company presents its reasons for opposing a union.
While many who have been pushing for card check legislation will be disappointed, it appears that union advocates recognize that these are substantial changes, that should provide lots of opportunities for unions to organize. At the same time, employers preserve the principle of the secret ballot, and many of the perceived dangers of the original version of card check legislation are avoided.
While many who have been pushing for card check legislation will be disappointed, it appears that union advocates recognize that these are substantial changes, that should provide lots of opportunities for unions to organize. At the same time, employers preserve the principle of the secret ballot, and many of the perceived dangers of the original version of card check legislation are avoided.
Monday, June 29, 2009
Wage and Hour Class Actions
The California Supreme Court today clarified several issues under the unfair competition, or unfair business practices statute (Business and Professions Code Section 17200 et seq.), and under the Labor Code Private Attorneys General Act (Labor Code Section 2698 et seq.)("PAGA"), two commonly used statutes for pursuing alleged wage and hour violations. In the Arias v. Superior Court case, the Court held that purported representative actions brought under the unfair business practices statute must satisfy class action requirements, basing this holding on an analysis of the language and intent of Proposition 64, which tightened the standing requirements under this statute. (The concurring opinion points out some of the quirky features of Section 382 of the Code of Civil Procedure, which actually pre-dates modern class action practice, but concedes that viewing Proposition 64's reference to Section 382 more broadly than as a requirement that representative unfair business practices cases must satisfy class action rules may make little practical difference.)
In contrast to the voters' fairly clear tightening of the rules for unfair competition cases by means of Proposition 64, the court held that the PAGA contains no requirement that class action rules be satisfied. The Supreme Court was not troubled by employers' claims of due process violations when various individual plaintiffs attempt to obtain relief against an employer that will bind the employer in subsequent litigation but will not bind other plaintiffs pursuing similar relief. That is because, according to the Supreme Court, any plaintiff taking advantage of PAGA is proceeding as the "proxy or agent of the state's labor law enforcement agencies . . . ." (slip opin. at 16)
In a second case, Amalgamated Transit Union v. Superior Court, the California Supreme Court held that labor unions are not entitled to bring actions for alleged wage and hour violations under either the unfair competition statute or PAGA. A labor union has not suffered actual injury as a result of wage and hour violations, and is therefore disqualified under the Proposition 64 amendments to the unfair competition statute. A labor union is also not an "aggrieved employee" entitled to sue under PAGA for such violations.
In contrast to the voters' fairly clear tightening of the rules for unfair competition cases by means of Proposition 64, the court held that the PAGA contains no requirement that class action rules be satisfied. The Supreme Court was not troubled by employers' claims of due process violations when various individual plaintiffs attempt to obtain relief against an employer that will bind the employer in subsequent litigation but will not bind other plaintiffs pursuing similar relief. That is because, according to the Supreme Court, any plaintiff taking advantage of PAGA is proceeding as the "proxy or agent of the state's labor law enforcement agencies . . . ." (slip opin. at 16)
In a second case, Amalgamated Transit Union v. Superior Court, the California Supreme Court held that labor unions are not entitled to bring actions for alleged wage and hour violations under either the unfair competition statute or PAGA. A labor union has not suffered actual injury as a result of wage and hour violations, and is therefore disqualified under the Proposition 64 amendments to the unfair competition statute. A labor union is also not an "aggrieved employee" entitled to sue under PAGA for such violations.
Friday, June 19, 2009
Mixed Motives in Age Discrimination Cases
Yesterday, the U.S. Supreme Court, in Gross v. FBL Financial Services, Inc., decided that age discrimination cases should not follow the same burden of proof analysis that the Court has applied in other kinds of discrimination cases. Specifically, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case under Title VII of the Civil Rights Act of 1964, the Court had held that if an employee showed that discrimination was a motivating factor in the employer's challenged employment action, the burden of persuasion should shift to the employer to show that the employer would have taken the same action in the absence of the discriminatory motive. The Court has now held that courts should not follow this analysis in cases brought under the Age Discrimination in Employment Act, a different statute. Instead, an age discrimination plaintiff is simply required to prove that his or her age was a "but-for" cause of the challenged employment action.
Evidently the majority of the current court never cared much for the Price Waterhouse analysis, and specifically stated that it might not have adopted this analysis if the question were being considered for the first time today. (slip opin. at p. 10) Does this mean that the whole reason we now have to apply a different analysis in age discrimination cases as opposed to other discrimination cases is that Justice O'Connor has been replaced by Justice Alito? I think it does. If so, maybe we could call the appointment of Justice Alito a "but-for" cause of this latest decision.
In any case, the various burden-shifting tests developed by the Supreme Court in discrimination cases have always proved somewhat incompatible with the way cases are actually presented and understood by the trier of fact. Therefore it is probably too early to tell whether this latest explanation of the way the way burdens of persuasion are supposed to be allocated will make a large difference in practice. Further, judging from what I read in the Los Angeles Times this morning about this case, it appears likely that Congress will take action to reverse this latest Supreme Court ruling, similarly to what they did with the Lilly Ledbetter case, and clarify that age discrimination cases should be handled in a similar manner to other types of discrimination cases.
Evidently the majority of the current court never cared much for the Price Waterhouse analysis, and specifically stated that it might not have adopted this analysis if the question were being considered for the first time today. (slip opin. at p. 10) Does this mean that the whole reason we now have to apply a different analysis in age discrimination cases as opposed to other discrimination cases is that Justice O'Connor has been replaced by Justice Alito? I think it does. If so, maybe we could call the appointment of Justice Alito a "but-for" cause of this latest decision.
In any case, the various burden-shifting tests developed by the Supreme Court in discrimination cases have always proved somewhat incompatible with the way cases are actually presented and understood by the trier of fact. Therefore it is probably too early to tell whether this latest explanation of the way the way burdens of persuasion are supposed to be allocated will make a large difference in practice. Further, judging from what I read in the Los Angeles Times this morning about this case, it appears likely that Congress will take action to reverse this latest Supreme Court ruling, similarly to what they did with the Lilly Ledbetter case, and clarify that age discrimination cases should be handled in a similar manner to other types of discrimination cases.
Monday, June 01, 2009
Enforcing Releases of Mis-Classification Claims
California Labor Code Section 206.5 prohibits the enforcement of releases of claims for wages due, unless payment of those wages has been made. A simplistic way of thinking about this rule is to say that you can't settle wage claims, i.e., an employer is never off the hook for paying an employee less than the wages that the employee is owed. But this section has also been held to prohibit employers from withholding compensation that is concededly due to an employee in order to obtain a settlement of additional, disputed amounts. In Chindarah v. Pick Up Stix, Inc., No. G037190 (2/26/09), however, the Fourth District Court of Appeal upheld the validity of releases settling claims of alleged mis-classification, where there was presumably a dispute as to whether the employer owed any overtime wages at all.
The case involved a proposed class action to recover overtime wages on behalf of certain managers and lead cooks employed by Pick Up Stix, who had been classified, improperly according to the plaintiffs, as exempt employees. The settling employees signed a release acknowledging that they spent more than 50% of their time performing managerial duties, and agreed not to participate in any class action by the employees who did not settle. The appeal followed a summary adjudication in favor of the employer of its cross-complaint for breach of those releases, after a number of the settling employees went ahead and joined the proposed class action despite having signed these releases.
The Court of Appeal distinguished this situation from the settlement of claims in which the employer made payment of wages concededly due to the employee conditional on settlement of other claims. The court held that this rule did not bar enforceability of the settlements, since there was a bona fide dispute as to whether overtime wages were due at all.
Read more...
The case involved a proposed class action to recover overtime wages on behalf of certain managers and lead cooks employed by Pick Up Stix, who had been classified, improperly according to the plaintiffs, as exempt employees. The settling employees signed a release acknowledging that they spent more than 50% of their time performing managerial duties, and agreed not to participate in any class action by the employees who did not settle. The appeal followed a summary adjudication in favor of the employer of its cross-complaint for breach of those releases, after a number of the settling employees went ahead and joined the proposed class action despite having signed these releases.
The Court of Appeal distinguished this situation from the settlement of claims in which the employer made payment of wages concededly due to the employee conditional on settlement of other claims. The court held that this rule did not bar enforceability of the settlements, since there was a bona fide dispute as to whether overtime wages were due at all.
Read more...
Wednesday, February 04, 2009
Fair Pay
Trying to explain the significance of the Lilly Ledbetter Fair Pay Act passed by Congress this past week made me realize there must still be quite a bit of confusion out there about the meaning of this legislation. Most informed people seem to know it was passed to overturn a recent Supreme Court decision that denied a claim by a female employee that she was not paid as well as her male counterparts. Less well known is that the Supreme Court case was based on an interpretation of the statute of limitations as it applies in statutory sex discrimination cases under Title VII of the Civil Rights Act of 1964. More specifically, the issue was whether the employer's act of discrimination was the negative evaluations Lilly Ledbetter received in the past (which she had proved resulted in part from discrimination). These evaluations caused her to receive lower pay than similarly-situated men. Alternatively, the act of discrimination could be viewed as the ongoing practice of paying her less than those men, i.e., as ongoing discriminatory treatment. The Supreme Court held that it was the former, and therefore her claim was barred because it was brought outside the limitations period applicable to the act of discrimination at issue.
Read more...
Friday, June 27, 2008
The Burden of Proof in Age Discrimination Cases
Last week the United States Supreme Court may have made it easier for plaintiffs to succeed in age discrimination cases by clarifying that the employer has the burden of persuading the fact-finder of the reasonableness of "reasonable factors other than age" justifying an employment decision that has a disparate impact on older workers. In Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, the employer laid of 31 employees based on the scores on performance tests administered by supervisors. Because the scores contained a subjective element, they were identified as a factor that could have accounted for the test results' bias against older employees. (30 out of the 31 laid off employees were over 40.)
The result of the Supreme Court's decision is to place more power in the jury's hands to evaluate the reasonableness of the practice identified as having a disparate impact on older employees. In other words, if an employer takes an action having an adverse impact on older workers, it is not enough for the employer to say that that action had nothing to do with age. Rather, the employer must persuade the jury that the action was reasonable.
Read more...
The result of the Supreme Court's decision is to place more power in the jury's hands to evaluate the reasonableness of the practice identified as having a disparate impact on older employees. In other words, if an employer takes an action having an adverse impact on older workers, it is not enough for the employer to say that that action had nothing to do with age. Rather, the employer must persuade the jury that the action was reasonable.
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