On June 25, 2021, the Supreme Court of the United States issued a ruling that provides additional guidance related to the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection of consumers’ credit information and access to their credit reports. In the employment context, the FCRA most frequently applies to background checks, including class actions alleging the most common background check claim—unlawful disclosure and authorization screens/forms (usually because of too much or too little information)—resulting in an informational injury.
On July 15, 2021, the California Supreme Court issued a decision that will increase dramatically California employers’ potential liability for missed meal, rest, and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the court unanimously held that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing.
On May 28, 2021, the Ninth Circuit Court of Appeals issued a significant ruling in Magadia v. Wal-Mart Associates, Inc., on both California’s wage statement laws and standing to pursue claims under the Private Attorneys General Act of 2004 (PAGA) in federal court.
With the onset of warmer weather this spring and summer, now is a good time for California employers to review their recovery break policies.
In Sargent v. Board of Trustees of the California State University, the California Court of Appeal highlighted an important distinction between Private Attorneys General Act (PAGA) claims asserted against a public entity employer based on statutes that themselves provide for civil penalties and PAGA claims that are based on PAGA’s default civil penalties provisions under California Labor Code § 2699(f).
Mandatory arbitration clauses for employment disputes have received a great deal of attention in recent years. In the First Circuit, there is now more clarity regarding the factors used to determine the enforceability of online arbitration agreements.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.
On January 12, 2021, the Fifth Circuit Court of Appeals issued a landmark decision rewriting the rules for obtaining certification in collective actions under the Fair Labor Standards Act (FLSA).
On January 5, 2021, New York City Mayor Bill de Blasio signed legislation that effectively ends at-will employment for fast food employees in New York City. The new law takes effect on July 4, 2021, and would make New York City the nation’s first jurisdiction to create job protections for a particular industry. However, at least some portions of the new law may be ripe to challenge on federal preemption and other grounds.
Under California law, an employee is exempt from California’s overtime requirements and other wage and hour laws if the person is employed in an administrative capacity. To meet this exemption, California’s wage orders and the California Labor Code provide that an employee must perform certain job duties and be paid a monthly salary equivalent to at least twice the state minimum wage for full-time employment. Neither the Labor Code nor the wage orders define what constitutes a “salary” or what it means for an employee to be paid on a salary basis for the purposes of the exemption. A recent California Court of Appeal decision, however, sheds some light on the issue.
Recently, and for the first time in more than 20 years, the United States Court of Appeals for the First Circuit ruled on the transportation worker exemption contained in Section 1 of the Federal Arbitration Act (FAA). In Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir. 2020), the court of appeals upheld a district court’s decision not to compel Amazon “AmFlex” delivery drivers (who are independent contractors) to arbitrate their wage claims. The decision is significant for companies that require their delivery drivers to sign arbitration agreements.
In Davidson v. O’Reilly Auto Enterprises, LLC, No. 18-56188 (August 3, 2020), the Ninth Circuit Court of Appeals addressed whether a district court abused its discretion in denying class certification for an employee’s claim for improper rest breaks under California law where the employer allegedly had a facially defective written rest break policy.
For the second time in a little over one month, the Supreme Court of New Jersey has issued an employer-friendly ruling upholding the enforceability of arbitration agreements in the employment context.
In recent months, Wisconsin federal courts have witnessed a dramatic increase in class litigation raising breach of fiduciary duty claims under the Employee Retirement Income Security Act of 1974 (ERISA). These claims target sponsoring employers and individuals who oversee plan investments and plan fees for employer-sponsored 401(k) plans.
In recent years, California employers have faced an increasing number of class action lawsuits related to background check practices commonly used in the hiring process. These lawsuits arise from the Fair Credit Reporting Act (FCRA), a federal law that regulates the collection, dissemination, and use of consumer information.
Universities continue to see a rise of COVID-19-related class action lawsuits alleging that campus closures deny students the full benefits of an on-campus college experience. This new wave of class action lawsuits generally seek full refunds for tuition, room and boarding costs, and other matriculation fees based on a breach of contract theory and claims of unjust enrichment. Many colleges and universities have already taken proactive measures that will help defend against these lawsuits. Some institutions implemented policies to refund student monies or apply room and boarding fees for the impacted term of enrollment toward future enrollment periods. For universities that have not taken these measures, the Coronavirus Aid, Relief, and Economic Security (CARES) Act may provide a potential, unintended defense to a class action.
After switching to online learning in response to the COVID-19 pandemic and sending students home, colleges and universities are beginning to face class action lawsuits seeking refunds of tuition, housing costs, meal plans, and fees. One such lawsuit is Church v. Purdue University, No. 4:20-CV-0025, in the U.S. District Court for the Northern District of Indiana.
The Supreme Court of California recently agreed to review the California Court of Appeal’s decision in Ferra v. Loews Hollywood Hotel, LLC, 40 Cal. App. 5th 1239 (2019), as limited to the following question: Did the Legislature intend the term “regular rate of compensation” in Labor Code section 226.7, which requires employers to pay a wage premium if they fail to provide a legally compliant meal period or rest break, to have the same meaning and require the same calculations as the term “regular rate of pay” under Labor Code section 510(a), which requires employers to pay a wage premium for each overtime hour?
In late 2019, Pennsylvania defected from the traditional use of the fluctuating workweek method used to calculate overtime rates for employees working fluctuating hours.
In a favorable opinion for employers, the California Court of Appeal for the Second District concluded the following on December 4, 2019, in David Cacho v. Eurostar, Inc.
The U.S. District Court for the District of Massachusetts denied conditional class action certification in a case involving a front of house (FOH) manager suing Outback Steakhouse for unpaid overtime under the Fair Labor Standards Act (FLSA). The court applied the Supreme Court of the United States’ reasoning in its 2017 decision in Bristol-Myers Squibb v. Superior Court of California, which involved a class action in California state court by a purported class of more than 600 plaintiffs, most of whom were not California residents.
Last year, the Washington Supreme Court considered the following certified question: “Does the Washington Minimum Wage Act require non-agricultural employers to pay their piece-rate employees per hour for time spent performing activities outside of piece-rate work?” On September 5, 2019, the court answered with a resounding no.
Over the past year, the popularity of digital workplace apps (that is, mobile applications used by companies to facilitate interactions with, and between, employees) has grown exponentially.
In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.
In Home Depot U. S. A., Inc. v. Jackson, No. 17-1471 (May 28, 2019), the Supreme Court of the United States addressed whether third-party counterclaim defendants in class actions have authority under the general removal provision 28 U.S.C. Section 1441(a) or the removal provision in the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1453(b), to remove their underlying cases to federal courts.
Behavioral health claims administrators and plan sponsors alike may be looking more closely at their care guidelines—and how they are applied—after a federal court ruled in a California class action that a claims administrator had breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) by applying standards of care that were more restrictive than generally accepted standards and by improperly prioritizing cost savings.
The U.S. Court of Appeals for the Fifth Circuit Court recently issued an opinion with major implications in In re: JPMorgan Chase & Company that impacts collective actions under the Fair Labor Standards Act (FLSA).
On February 26, 2019, the Supreme Court of the United States ruled that under Rule 23(f) of the Federal Rules of Civil Procedure (FRCP), a petition for permission to appeal an order decertifying a class must be filed within 14 days from the date the district court issued its order.
In a matter of first impression before the Seventh Circuit Court of Appeals involving an issue left open by the Supreme Court of the United States, a Seventh Circuit panel issued an opinion on a key threshold question of class arbitrability. The question was who decides—a court or an arbitrator—whether arbitration can proceed on a class or collective basis.
On June 12, 2018, Washington State Governor Jay Inslee issued an executive order that directs Washington agencies to favor government contractors that do not require employees to submit to individual arbitration of claims.