California’s PAGA Saga continues with a pair of recently issued appellate decisions impacting these legally created class action-like lawsuits.
In a recent series of articles, we asked whether “class arbitration” — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not. We noted that the United States Supreme Court and various Courts of Appeal had examined several related procedural questions, but that they had not gotten to the core issues that would ultimately determine the viability of a class arbitration award.
Join us on Tuesday, May 16 for the final installment of our Entrepreneur Series in partnership with the University of San Diego. In the third session, “Employment & Litigation Avoidance,” panelists, including speakers from The Honor Foundation, Fairway Technologies, Patriot List and Mintz Levin, will discuss the nuts and bolts of workforce management and provide advice for structuring your business to avoid making mistakes that may result in litigation.
For more information and to register, please click here.
Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017. Today we kick off this segment with New York. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds. While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.
The Fourth Circuit recently ruled that a general contractor was the joint employer of employees of its subcontractor for purposes of the Fair Labor Standards Act. Salinas v. Commercial Interiors, Inc. has broad implications for the wage and overtime responsibilities of employers located within the Fourth Circuit, which has jurisdiction over appeals from federal courts located in Maryland, Virginia, North Carolina, South Carolina, and West Virginia.
UPDATE: On February 8, 2017, the Supreme Court announced that it would delay until its October 2017 term oral arguments in the consolidated cases concerning the enforceability of class arbitration waivers in employment agreements. (This updates our Blogpost dated Jan. 31, 2017.)
Many anticipate that Judge Gorsuch will have been confirmed by the Senate by then, which likely explains the Supreme Court’s decision to delay oral argument. Because the Court granted certiorari based upon a Circuit split, it presumably hopes to avoid a possible 4-4 vote by the current Justices, which would permit the various Circuit Court rulings to stand, leaving the matter unresolved nationally.
While we expect that Justice Gorsuch, a reputed strict constructionist, will in effect be a pro arbitration judge, his questions during oral argument will offer a glimpse of how he might decide the particular issues presented here concerning employment class arbitration.
By Michael Arnold, Brent Douglas and Audrey Nguyen
Beginning next year, employers may no longer force their California employees to resolve their employment-related disputes outside of California or use non-California law when doing so. With limited exceptions, the new law, codified at Labor Code Section 925, will be applicable to all employment agreements entered into, modified, or extended on or after January 1, 2017. The new law is yet another attempt by California policymakers to provide added protections to employees working in their state.
Algorithms and bots run our lives; we just may not know it. They help choose our music, buy our diapers and tell us when it’s time to change the water filter. Algorithms may someday determine when you or your company gets sued. Continue Reading Lawsuit by Algorithm, the Latest Big Data Rage
Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment. A recent federal court decision, however, may lead to an uptick in such on-site investigations – even if the EEOC does not have an administrative warrant for the investigation and even if the employer does not consent.
A federal court in Kentucky recently held that the EEOC has the authority to conduct a warrantless, nonconsensual search of a private employer’s commercial property to investigate a discrimination claim. This marks the first decision in which a federal court confronted this issue. Though this is not a favorable decision for employers, the court delineated several limitations and safeguards that help fetter the EEOC’s on-site inspection authority.
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.