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12014 ACC-SoCal In-House Counsel Conference #IHCC14
Employment Law Update
WHERE WE’VE BEEN… AND WHERE WE’RE GOING:A look back at 2013 and a look forward to 2014
January 22, 2014Los Angeles, California
Sponsored by Jackson Lewis P.C.
Moderator: Kristi AshmanPanelists:
Elisabeth Lilly, Mindy S. Novick, and Adam Y. Siegel
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Kristi Ashman– BakerCorp/Assistant General Counsel– [email protected]
Elisabeth B. Lilly– Northrop Grumman/Senior Counsel– [email protected]
Mindy S. Novick– Jackson Lewis P.C./Shareholder– [email protected]
Adam Y. Siegel– Jackson Lewis P.C./Shareholder– [email protected]
Panelists
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#IHCC142014 ACC-SoCal In-House Counsel Conference
The Year In Review
California Cases
Federal Cases
What To Expect In The Year Ahead
California Pending Cases
California Statutes For 2014
Federal Outlook
Agenda
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The Year In Review:
California Cases
Agenda
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Does the “mixed motive” defense apply to employment discrimination claims under FEHA?– Yes: To establish liability employee must show unlawful
discrimination was a substantial factor motivating the adverse employment decision, instead of simply a motivating factor.
– If employer proves it would have made the same adverse employment decision absent such discrimination: Employee prevails but Employee recovers nothing But employee’s attorneys fees will be paid by employer
Harris v. City of Santa Monica 56 Cal.4th 203
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CA Supreme Court held: (1) it is against public policy and unconscionable to require
employee to waive right to a Berman hearing and
(2) rule is not preempted by FAA.
US Supreme Court granted cert., vacated and remanded to CA Supreme Court for further consideration in light of AT&T Mobility LLC v. Concepcion.
Sonic-Calabasas A, Inc. v. Morena (Sonic 1)51 Cal.4th 659 (9/2013)
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After remand to CA Supreme Court FAA preempts state-law rule categorically requiring Berman hearing
before arbitration
Unconscionability – procedural or substantive - remains a viable contract defense; not preempted by FAA
Rule that does not discriminate against arbitration on its face “must not disfavor arbitration as applied by imposing procedural requirements that interfere[] with fundamental attributes of arbitration….”
Sonic-Calabasas A, Inc. v. Morena (Sonic 2)2013 Cal. LEXIS 10220 (10/17/2013)
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Joint representation of company and employee witness for deposition by in-house counsel
Possibility of conflicting testimony exists but is not explained to employee – no joint rep letter
Examination at deposition by plaintiff does not expose a conflict
Company attorney at deposition asks questions that calls the credibility of witness into question
Yanez v. Plummer 213 Cal.App.4th 1331 (11/5/2013)
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Issue: Does Unemployment Insurance Appeals Board decision that plaintiffs are not employees collaterally estop the Labor Commissioner from assessing penalties for inaccurate wage statements?
Yes.
Happy Nails & Spa v. Su, as Labor Commissioner 217 Cal. App. 4th 1459 (7/19/13)
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Trial court certified “off-the clock” class
Rehearing based on Dukes v. Wal-Mart - trial court decertified class
Plaintiffs appealed to CA Supreme Court– court granted review and returned case to appellate
court with directions to issue OSC why class should be certified
Holding on remand: writ of mandate to trial court to vacate decertification and re-instate class certification
Williams v. Sup. Ct. (Allstate Ins. Co.)___ Cal.App.4th ___, B244043 (12/6/2013)
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Plaintiff filed complaint against Defendant (staffing agency) alleging failure to provide meal and rest breaks, failure to pay overtime
Plaintiff alleged a common practice was the failure to adopt and implement policies in compliance with Labor Code– Trial court denied class certification relying on Brinker
– Reversed and remanded for consideration of class certification
Defendant filed motion for re-hearing; fully briefed
Benton v. Telecom Network Specialists, Inc. B242441, ___ CA4th ___ (10/16/2013)
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Appeal from summary judgment granted in favor of defendant; reversed and remanded for trial
Employee (bartender) became intoxicated at annual holiday party
Employee drove home but then left to drive another employee home
Accident resulted in death of 3rd party
If proximate cause of injury occurred within scope of employment, ER may be held liable
Purton v. Marriott International 218 Cal.App.4th 499 (7/31/2013)
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The Year In Review:
Federal Cases
Agenda
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Issue: Is state law preempted by FAA?– No.
Issue: Is arbitration agreement unconscionable under state law?– Yes. Motion to compel arbitration denied.– Procedurally unconscionable – take it or leave, terms not
provided until 3 weeks after employee agreed to be bound– Substantively unconscionable – arbitrator selection process
unfair, precluded institutional arbitration administrators, arbitrator fee-apportionment provision prohibitive
Chavarria v. Ralphs Grocery Co.__ F3d ___ (9th Cir. 10/28/2013)
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Duran v. US Bank Ass’n– Wage & hour class action
Iskanian v. CLS Transportation– Arbitration agreements in class actions
Ayala v. Antelope Valley Newspapers, Inc.– Independent contractors in class actions
Peabody v. Time Warner Cable (9th Cir.)– Allocation of commission payments
Salas v. Sierra Chemical Co.; Richey v. AutoNation– Defenses available when after-acquired evidence found
What To Expect In The Year Ahead
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Once PDLL expires – does ER have additional obligations?– Employee had high risk pregnancy, required long bed rest. – Employer provided 19 weeks of leave, including vacation days
and time off under the PDLL and CFRA. – Employee fired after expiration of PDLL and CFRA.
Yes. Employer must engage in interactive process and determinate whether further leave is a reasonable accommodation
So, 4 month PDLL is the beginning, not end, of accommodation process for pregnant employees.
Sanchez v. Swissport, Inc. 213 Cal.App.4th 1331 (2013))
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Certified questions to CA Supreme Court– (1) Does “nature of the work” refer to specific EE’s
tasks or job title’s tasks?– (2) To determine if the nature of work “reasonably
permits” the use of a seat, may ER use business judgment?
– (3) If employee denied seat, does employee have to prove what would constitute “suitable seats”?
Kilby v. CVS Pharmacy, 9th Cir. No. 12-56130, No. S215614Henderson v. JP Morgan, 9th Cir. No. 13-56095, No. S215614 (12/31/13)
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Federal Outlook
Agenda for 2014
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OFCCP finalizing regulations that will require federal government contractors to move toward a 7% disabled workforce and to hire more veterans.
CRIMINAL BACKGROUND CHECKS:– Employers told to consider:
Nature or gravity of offense or conduct Time elapsed since offense, conviction, release Nature of job sought
– OFCCP’s Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” issued on January 29, 2013
Federal Outlook
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California Statutes For 2014
Agenda for 2014
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Support animals are a reasonable accommodation – and it’s not just dogs!
Definitions now include examples – broad examples – of disabilities and reasonable accommodations
Expands definition of “health care providers to include (M&F therapists, acupuncturists, podiatrists, dentists, clinical psychologists, chiropractors, midwives and PAs)
California Disability Regulations
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An employee who complains internally about alleged violation of law or threat to public safety is protected
Before, employee had to make a complaint to an outside agency
What can you expect?A LOT MORE WHISTLEBLOWING SUITS
“Whistleblower” Law, SB 496; eff. 1/1/14
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SB 435 Missed “cool down” and “recovery” periods added to missed meal and rest breaks for which denial results in penalty of one hours pay
California Statutes For 2014
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Draft arbitration agreements with clarity and certainty
Review current policies to ensure compliance with new or amended statutes
Ensure managerial/supervisory employees are trained on what to do regarding policies, procedures, statutes
Significant Take-Aways
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Questions?
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11th Annual In-House Counsel ConferenceJanuary 22, 2014 (Los Angeles, CA)
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www.acc.com/chapters/socal/
