Mull v. Motion Picture Ind. Health Plan educates employers on the basics of the requirements of the Employee Retirement Income Security Act (ERISA) governing plan documents and summary plan descriptions. The lessons are sobering, particularly as they relate to group health plans. Although compliance with these requirements is neither difficult nor expensive, many employers nevertheless ignore them. The decision in this case might—and, in our view, should—encourage them to reconsider.

Continue Reading The Ninth Circuit Weighs in on ERISA’s Plan Document and Summary Plan Description Requirements: Mull v. Motion Picture Ind. Health Plan

With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer.  This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.

Continue Reading Where Are We With the Enforceability of Class Action Waivers in Arbitration Agreements?

The Ninth Circuit recently held that Section 304 of the Sarbanes-Oxley Act (SOX 304) allows for a clawback of certain CEO and CFO compensation regardless of whether the clawback was triggered by the personal misconduct of such officers. District courts have reached this conclusion before, but the Ninth Circuit appears to be the first circuit to adopt such a view.  The Ninth Circuit also held that Rule 13a-14 of the Securities Exchange Act (Rule 13a-14) provides the SEC with a cause of action against a CEO and CFO who certify false or misleading statements. Continue Reading Ninth Circuit Holds that SOX 304 Clawback Applies to Executives that are Not at Fault

Does this sound familiar: employee disregards a non-compete and joins a competitor; former company calls foul and initiates a lawsuit; parties fight it out, but by the time litigation has run its course, the non-compete period in the underlying contract has expired.  The dispute is moot, right?  Not necessarily according to the Ninth Circuit in Ocean Beauty Seafoods v. Pacific Seafood Acquisition Company.  There, the Court applied the doctrine of equitable extension to tack on a non-compete period to an agreement after the original period had run.

Continue Reading Pescetarian’s Delight: Ninth Circuit Extends Non-Compete Term Beyond Contractual Period

The Uber saga continues in O’Connor v. Uber Technologies, Inc. – a closely watched case that will impact the future of the gig economy.  Last time we visited this case, the 9th Circuit Court of Appeals had declined to review the district court’s class certification decision, which certified a class of thousands of Uber drivers.  This time around, the District Court issued an order that expanded the original class.  But Uber has already countered with a move of its own in response to this latest decision.  We discuss the latest below.

Continue Reading Uber Class Action Update: Court Finds Arbitration Agreement Unenforceable and Broadens Class of Drivers

Written by Natalie Young with Michael Arnold

The sharing or gig economy has introduced a new management paradigm for companies, more flexible schedules for workers, and a greater level of convenience and accountability to consumers.  While there are many supporters of this new economy, the individuals providing the services are caught in an undefined space – are they employees or independent contractors?

Continue Reading Ninth Circuit Won’t Review Uber Driver Class Certification Decision

The NLRB has once again held that a mandatory arbitration agreement including a class/collective action waiver violates the National Labor Relations Act.  With barely an acknowledgment that the Fifth Circuit reversed its last two decisions reaching the same conclusion, the Board ruled in Amex Card Service Co., No. 28–CA–123865 (Nov. 10, 2015), that Amex committed an unfair labor practice by maintaining and enforcing an arbitration policy that required employees, as a condition of their employment, to resolve all claims against the company through individual arbitration.

Continue Reading NLRB Won’t Take “No” For an Answer — Holds Class Action Waiver in Arbitration Agreement Unlawful Despite Two Previous Reversals at the Fifth Circuit

My colleague, Tyrone Thomas was quoted in the Law360 article, Attorneys React to NCAA Student-Athlete Pay Ruling, in which he analyzes the Ninth Circuit Court’s decision to strike down the NCAA’s ban on paying student-athletes and outlines the positive implications of the decision for the NCAA. The article offers expert insight from various attorneys on the significance of the ruling.

Tyrone Thomas was also quoted in the BloombergBusiness article, NCAA Athletes May Face Long Next Yard in Bid for Free-Market Pay, in which he explains the ruling’s impact on efforts to eliminate limits on compensation for college athletes. In the aftermath of the ruling, the article examines potential damages and the precedent set for related cases such as compensation for former athletes and women basketball players.

In another Law360 article, NCAA Scores Big at 9th Cir. In Amateur Sports Fight, Tyrone Thomas contextualizes the latest “loss” for the NCAA regarding the compensation of student-athletes as a much anticipated shift in the NCAA’s student-athlete model. The article outlines the significance of the amateur classification of college athletes to the changing economics of college sports.

If you tuned in to my appearance a few months ago on Bloomberg Law Radio, you heard me bemoaning our legal system’s failure to catch up with the gig economy.

For those of you who don’t know, the term “gig economy” (also known as the “sharing economy”), refers to casual on-demand services undertaken by individuals yearning to fit “work” into their lifestyle unsullied by a traditional long-term employment relationship, employment regulations and other aggravations like payroll taxes.  The casual worker concept appeals to businesses as well, especially those in beta mode that are not equipped to take on the tremendous responsibilities (and expense) of a W2’d workforce.

The problem of course is that laws and regulations drafted thirty years ago did not contemplate that people would actually elect to throw off the constraints of typical employment where they are told what to do, where to do it, and how it must be done, and instead elect to do their own thing – where, when and how they wished. Layer on top of that a bit of the nanny state mentality and it creates the perfect storm of non-bottom-line enhancing litigation.

So what is a reasonable gigster to do?

Continue Reading What Does the Latest Uber Decision Mean for Your Gig Business?