Employers’ Ability to Collect Attorney’s fees in wage Cases Restricted by new Bill

On August 26, 2013, California Governor Jerry Brown signed Senate Bill 462 into law, making it harder for employers to obtain attorney’s fees in certain employment wage claim cases.

Prior to the passage of SB 462, section 218.5 of the California Labor Code required a court in any action brought for the nonpayment of wages, fringe benefits, or health and welfare pension fund contributions, to award reasonable attorney’s fees and costs to the prevailing party who requests such fees and costs at the outset of the case, regardless of whether the prevailing party was the employer or the employee. More ›

Ninth Circuit Allows Parties to Arbitrate Dispute Which had been Litigated for Years

In this recent arbitration decision out of the Ninth Circuit, the employee brought an action against her employer, alleging violations of California’s overtime laws and sought to assert claims on behalf of a class. After several years of litigation, the employee moved to certify a class. The District Court granted the motion in part, narrowing the class which the employee represented. In the same order, the court denied the employer's motion to compel arbitration, which was after the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). The District Court found that the employer had waived its right to arbitration by litigating the action for years without raising the binding arbitration clause contained in the employee's employment agreement. More ›

New Jersey Federal Court Finds that SCA Exception Applies to Facebook Posting Shared by Co-Employee

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-cv-03305 (WJM) (D. N.J. Aug. 20, 2013), a federal district court in New Jersey granted an employer's motion for summary judgment, and thereby dismissed the employee's claims of violations of the federal Stored Communications Act, (SCA"), the Family Medical Leave Act, and other claims the employee made under New Jersey law alleging discrimination, invasion of privacy, and protected "whistle blowing" activity. We will focus today on the court's analysis and application of the SCA to the sharing of screen shots from the employee's Facebook postings. Before reaching that discussion, however, the court first had to review the relevant facts.  More ›

Court Finds Volunteer Firefighters to be “Employees” for the Purpose of Determining Eligibility Under FMLA/FLSA

A fire department dispatcher filed suit against his employer under the Family Medical Leave Act (FMLA) for allegedly violating his right to protected leave. The employer filed a motion for summary judgment, arguing that the employee was not eligible for leave under the FMLA because it did not employ at least 50 employees. At that time, the employer employed 41 employees, excluding 25-30 "volunteer" firefighters who were not required to respond to any emergency calls, but who were paid $15 per hour for the time they did spend responding to a call or maintaining equipment. The volunteers were not considered employees by the department, and thus, did not receive health insurance, sick or vacation time, or social security benefits, but the volunteers did have the ability to be promoted or discharged. More ›

Use of Criminal Background Checks Upheld by Federal Judge

In a rebuke to the Obama Administration, a federal judge has held that an employer may use criminal history as a hiring criterion without violating a job applicant’s civil rights.

The case, EEOC v. Freeman, centers around a recent Equal Employment Opportunity Commission (“EEOC”) policy that employers may run afoul of the Civil Rights Act of 1964 by conducting criminal background checks. As we have reported, the EEOC maintains that such checks have a disproportionate adverse impact on minorities. More ›

Employer’s Right to Compel Arbitration, even Where Demand Is Delayed, Affirmed By Ninth Circuit

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee.

The District Court had determined that defendant had waived its right to arbitration by failing to assert that right as a defense. The Ninth Circuit reversed the judgment on the following grounds.

As the Court noted preliminarily, waiver of the contractual right to arbitration is not favored and, therefore, any party arguing waiver of a contractual right to arbitration bears a heavy burden. More ›

Employers Eyeing First GINA Cases for Further Guidance

The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against employees or applicants based on genetic information. Title II of GINA prohibits the use of genetic information in making employment decision, restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Over the course of the past few years, the EEOC has filed two cases against employers, alleging violation of this particular Act.  More ›

Massachusetts’ Anti-Discrimination Laws Prohibit Associational Discrimination

In a recent employment discrimination decision, the Massachusetts Supreme Judicial Court held that the Massachusetts discrimination statute, M. G. L. c. 151B, encompasses a claim for "associational discrimination."

"The term 'associational discrimination' refers to a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates."  More ›

Second Circuit Holds FLSA Claims Subject to Class Action Waiver in Arbitration

An employee entered into an arbitration agreement with her employer when she was hired. The arbitration agreement required the employee to arbitrate any claims arising out of the Fair Labor Standards Act ("FLSA") as opposed to suing in court and required the employee to individually arbitrate FLSA claims instead of arbitrating as part of a class of employees. Despite those provisions in the arbitration agreement, the employee filed a lawsuit in federal court alleging that she was denied overtime pay in violation of the FLSA on behalf of herself and a class of other similarly-situated employees. The employer sought to compel arbitration and to dismiss the employee's claim due to the class-action wavier provision in the arbitration agreement. The employee asserted that the provision was unenforceable based on the "effective vindication" doctrine, which allows a court to invalidate agreements "that prevent the 'effective vindication' of a federal statutory right. Specifically, the employee asserted that the costs and fees associated with arbitrating her claim individually, rather than collectively, would dwarf her potential damages under the FLSA. The district court denied the employer's motion and found the arbitration agreement to be unenforceable.  More ›

State Employee’s Retaliation Claim Barred by Eleventh Amendment

An employee for a State administrative agency sued the agency and various state employees alleging retaliation in response to a prior disability discrimination suit he filed against the same employer. Among other defenses, the employer asserted that as a state agency it was immune from suit under the Eleventh Amendment and the doctrine of sovereign immunity. The district court did not rule on the issue but granted summary judgment for the employer on other grounds.  More ›