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Brent Douglas is an Associate in the Employment, Labor & Benefits Practice, and is based in the firm’s San Diego office. He counsels employers and corporate executives on employment law issues, including class action claims. Brent also advises clients on avoiding or mitigating workplace issues, conducts workplace investigations, and trainings for management personnel on nondiscrimination, non-harassment, and anti-bullying.

2015 largely brought more of same for California employers: increased wages and benefits for employees and decreased flexibility with employee classifications, the scope of arbitration agreements, and ways to structure compensation. But how will courts and the Department of Labor Standards Enforcement implement 2015’s new laws? What lies ahead in 2016? Continue Reading 2016 Wage & Hour Update – What Lies Ahead for California Employers?

The battle between the NLRB and the Fifth Circuit rages on, as the Fifth Circuit again ruled that employers do not violate the National Labor Relations Act when they require employees to sign arbitration agreements containing class/collective action waivers.

Continue Reading Fifth Circuit (Again) Reverses NLRB and Finds Class Action Waivers in Arbitration Agreements Do Not Violate the NLRA

The California Fair Pay Act, which goes into effect on January 1, 2016, prohibits employers from paying employees less than the rate paid to members of the opposite sex who perform “substantially similar” work.  Although current laws prohibit wage discrimination within the same establishment for the same work, the new law expands the geographic scope to include all of an employer’s locations (even outside of California) and expands the scope to include “substantially similar” work, not just “equal work.”  An example, as offered by State Senator Hannah-Beth Jackson, is a female housekeeper who cleans hotel rooms at one location may challenge the higher wages paid to male janitors who clean the lobby and banquet halls at another location.  We summarize the law below.

Continue Reading California Expands Gender-Based Wage Protections by Adopting “Substantially Similar” Test and Requiring Employers to Justify Wage Discrepancies

While the Dodd-Frank Act provides various protections to whistleblowers, federal courts have inconsistently interpreted who precisely qualifies as a whistleblower.  In a much-anticipated opinion, the Second Circuit Court of Appeals held, in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally – but not to the Securities and Exchange Commission – are protected from retaliation under the law.

Continue Reading Internal Whistleblowing Protected Against Retaliation Under Dodd-Frank, Says Second Circuit

The California paid sick leave law provided a significant boon to employees not included under employers’ sick leave or paid time off policies, but it often created more questions than answers for companies. How do we calculate one hour of paid sick leave for salaried employees? How should we record accrued sick leave on wage statements if we offer unlimited paid time off to everyone? What does the word “year” mean for a law that references “calendar year” but started on July 1st? If we provide PTO to everyone does this law affect us at all?

The law came without any interpretive regulations, and employers have had to monitor the State’s Frequently Asked Questions website for the closest thing to sanctioned guidance.

Fortunately, employers just received clarity on some of the most common questions via amendments signed into law by Governor Brown on July 13, 2015. The Legislature amended the Act in several respects. Continue Reading California Sick Leave Amendments Offer (Some) Needed Clarity for Employers

In a sweeping decision, the U.S. Equal Employment Opportunity Commission found that Title VII prohibits sexual orientation-based discrimination.  Although the statute does not explicitly include sexual orientation as a protected class, the statute does list “sex,” and the EEOC concluded “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

Continue Reading EEOC Rules that “Sex” Encompasses Sexual Orientation Under Title VII; Ruling Helpful to LGBT Employees, But Not an End to the Debate

The Ninth Circuit Court of Appeals recently sent a case back to a district court to revisit its enforcement of a settlement agreement that prohibited an employee from future employment with the employer and any company the employer later acquired or served.  The opinion in Golden v. California Emergency Physicians Medical Group addresses whether California Business & Professions Code section 16600 extends to non-compete agreements only and certainly provides ammunition for future attacks on no re-hire provisions in settlement agreements and other non-traditional restrictive covenants.

Continue Reading California Non-Compete Update: No Re-Hire Provisions May Be in Jeopardy, Especially for Large Employers

The U.S. Supreme Court vacated a Fourth Circuit decision Wednesday, reviving a pregnancy bias case against the United Parcel Service brought by a former delivery driver who was denied a light-duty work accommodation while pregnant. In doing so, the Court for the first time applied the well-known McDonnell-Douglas burden shifting framework to these types of pregnancy discrimination cases. However, this case may have limited impact because Congress has since amended federal discrimination laws to make pregnancy-related accommodations much more likely and because states and other locales have begun to pass laws explicitly mandating pregnancy accommodations.

Continue Reading U.S. Supreme Court Revives Suit Against UPS, Extending McDonnell-Douglas Burden Shifting Framework to Pregnancy Discrimination Cases