Labor and Employment

Arbitrator To Decide Whether Arbitration Agreement Provides For Class Arbitration

July 27, 2014 | Bulletin No. 1131565.1

A majority of the United States Supreme Court has never reached agreement on whether the court or an arbitrator should decide the issue of whether an agreement allows or precludes class arbitration. In Sandquist v. Lebo Automotive, Inc., B244412, 2014 WL 3590152 (Cal. Ct. App. June 25, 2014), the California Court of Appeal followed the reasoning of a Supreme Court plurality opinion to rule that the arbitrator, not the court, should decide the issue.

California Law Does Not Prohibit Employers From Deducting From Exempt Employees' Vacation Leave Credits Even For Absences Of Less Than Four Hours

July 24, 2014 | Bulletin No. 1130641.1

On July 21, 2014, the California Court of Appeal's Fourth Appellate District, Division One, affirmed the trial court's decision in Rhea v. General Atomics (July 21, 2014, D064517 ) ---- Cal.App.4th ---).  In reaching its decision, the court re-affirmed a previous appellate decision, Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260. 

California Employers May Not Allocate Commissions Paid In One Pay Period To Different Pay Periods To Satisfy California Wage And Hour Laws

July 16, 2014 | Bulletin No. 1128988.1

The California Supreme Court recently considered whether an employer may allocate an employee's commission wages from one pay period to other pay periods in order to meet the commissioned employee overtime exemption.  (Susan J. Peabody v. Time Warner Cable, Inc. (--- P.3d ---, 2014 WL 3397770, Cal. July 14, 2014)).  The Supreme Court held that an employer satisfies the minimum earnings prong of the commissioned employee exemption only in those pay periods in which it actually pays the required minimum earnings.  The minimum earnings requirement is not met by reassigning wages earned on a commission basis to a different pay period.

UPDATE: Employee’s Refusal to Sign Written Disciplinary Notice Not “Misconduct” Under California Unemployment Insurance Code

July 8, 2014 | Bulletin No. 1126771.1

Approximately two years ago, a California court of appeal held that an employee’s refusal to sign a disciplinary memorandum amounted to misconduct under the California Unemployment Insurance Code, disqualifying him from unemployment insurance benefits.  The California Supreme Court recently reversed that ruling, reiterating that the fundamental purpose of the Unemployment Insurance Code is to provide benefits for persons “unemployed through no fault of their own.” (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (--- P.3d ----, 2014 WL 2988013, Cal., July 3, 2014). 


For a discussion of the appellate court ruling in this case, please see our previous Legal Alert entitled, "Claimant Fired For Refusal To Sign Disciplinary Memo Was Not Entitled To Unemployment Benefits", June 24, 2012.

More Good News for California Employers Who Utilize Employee Arbitration Agreements

June 25, 2014 | Bulletin No. 1123592.1

On the same day the California Supreme Court upheld an arbitration agreement containing a class action waiver in Iskanian v. CLS Transportation of Los Angeles, LLC, the Ninth Circuit Court of Appeals upheld employment arbitration agreements used by Bloomingdale’s and Nordstrom that contained provisions requiring employees to waive their rights to bring class actions alleging overtime and other employment law violations.  In both actions – Johnmohammadi v. Bloomingdale’s, Inc. and Davis v. Nordstrom, Inc. – the Ninth Circuit compelled individual arbitration of claims that were brought by employees as putative class actions.

California Supreme Court Rules that Employers May Require Employees to Arbitrate Employment Disputes Rather Than Go to Court, Even if the Arbitration Agreement Contains a Class Action Waiver

June 23, 2014 | Bulletin No. 1123030.1

On Monday, June 23, 2014, the California Supreme Court issued its decision in the closely watched case of Iskanian v. CLS Transportation Logistics Inc.  In a 4-3 opinion, the Court finally agreed that the Federal Arbitration Act ("FAA") permits employers to require that employees agree to resolve most employment disputes through arbitration, rather than by taking such claims to court.  Individual arbitration can be required, even if that employee claim is being brought as part of a class action complaint. 

Delivery Drivers Classified As Employees Despite Signed Agreement Purporting To Establish Independent Contractor Relationship

June 19, 2014 | Bulletin No. 1122427.1

Recently, the United States Court of Appeals for the Ninth Circuit, applying California law, concluded that delivery drivers who signed agreements stating they were independent contractors and not employees would still be classified as employees because the employer possessed the right to control work details.  (Ruiz v. Affinity Logistics Corp.,--- F.3d ----, C.A.9 (Cal.), June 16, 2014).

Administering Leaves of Absence in California Under FMLA and CFRA

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Wednesday, June 25, 2014


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Get the latest advice on managing the complexities of FMLA and CFRA regulations.


Pharmacy Manager Fails To Prove Kaiser Had Actual Or Constructive Notice That He Was Working Off-The-Clock

May 28, 2014 | Bulletin No. 1108750.1

In an appeal from summary judgment, a non-exempt Outpatient Pharmacy Manager (“OPM”) for Kaiser contended that the trial court erroneously held his proffered evidence insufficient to create a triable issue as to whether Kaiser knew or should have known that he was working hours in addition to those he reported.  The Court of Appeal for the First District affirmed the trial court’s judgment and held that none of the evidence offered by the OPM was sufficient to support a finding that Kaiser was aware of his unreported overtime hours.  (Jong v. Kaiser Foundation Health Plan, Inc., et al. (May 20, 2014, A138725)

Webinar | What General Counsel Need to Know About the Legal Issues that Can Arise for Your Company from Internet Marketing

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Thursday, May 22, 2014


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