PuppyIn a welcome common sense decision, the California Court of Appeal in Serri v. Santa Clara University affirmed summary judgment granted to Santa Clara University against its former Director of Affirmative Action.

Why? Because as the University’s Director of Affirmative Action, she failed to file the University’s Affirmative Action Plan (AAP) for three years in a row!

Indeed, the undisputed record showed that Serri not only failed to file the University’s AAP for three successive years, but also failed to inform her supervisors that she had not filed them and made other misrepresentations about the AAPs.

Since the University had legitimate, non-discriminatory reasons for discharging Serri, the case turned in large part on her ability to show that the University’s reasons for firing her were a pretext for discrimination. Struggling to establish pretext, Serri did not literally argue that her “dog ate her AAP,” but she came close by asserting a series of weak excuses such as:

  1. the AAPs weren’t really that important;
  2. failure to file the AAPs would not likely result in actual sanctions against the University;
  3. the University failed to provide her with data and a consultant to process the data necessary for an AAP (ignoring the fact that she was responsible for overseeing this process); and
  4. when she once had actually prepared an AAP over a decade earlier, she “sensed” the University  President was “reluctant” to sign the AAP, and he “never asked her” about the AAPs.

The Court exposed and rejected these arguments in a decision that affirms accountability still plays an important role in the workplace.

Click here if you would like to read the entire opinion.

An employer that petitioned to compel arbitration one year after the employee filed his employment-related complaint did not waive its right to arbitrate the complaint, the California Court of Appeal has ruled, confirming the burden of proving a party waived its right to arbitration is a heavy one. Gloster v. Sonic Automotive, Inc., No. A137081 (Cal. Ct. App. May 21, 2014).

The Court found the employer consistently communicated to the employee’s counsel and the court that the dispute should be arbitrated, and the delay, in large measure, was caused by the employee’s inclusion of multiple defendants in the lawsuit. It found significant that the employer filed its petition to compel arbitration shortly after the trial court resolved issues related to the other defendants, and the employee was not prejudiced by the delay. The Court reversed the order denying arbitration.

To continue reading the full alert, click here.

Calling “seriously flawed” a lower court’s trial management plan which used sampling evidence to prove class liability and damages under California law, the California Supreme Court has vacated a $15-million judgment against the employer for overtime pay and remanded the case for a new trial on both liability and damages. Duran v. U.S. Bank National Ass’n, No. SC S200923 (May 29, 2014).

The high court’s decision highlights the difficult questions that arise in deciding how individual issues can be successfully managed in a complex class action in California. The Court did not reach any broad conclusion as to whether or when sampling should be available to prove liability in a class action; however, if sampling is used, it advised, the sample must not be too small, and the sample must be randomly selected.

Furthermore, the Court stated that statistical proof cannot be relied on to bar the presentation of valid defenses to either liability or damages, even if the alternative would require adjudication of a defense on an individual level. If the trial proceeds with a statistical model, a defendant accused of misclassification must be given a chance to impeach that model or otherwise show that its liability is reduced because some plaintiffs were properly classified.

To continue reading the full alert, click here.

Employers in the construction industry throughout California must prepare for an increase in the number of California Occupational Safety and Health Administration (“Cal/OSHA”) inspectors who will check employers’ fall protection safety systems.  The increase in inspections is a response to the events that occurred between May 18 and May 21, 2014, when four construction workers tragically died at separate California worksites as a result of accidental falls.  According to the DIR’s News Release dated May 27, 2014, the inspections are expected to occur mostly at construction sites in the San Francisco Bay Area.  However, additional inspections will likely occur throughout the entire country, as the federal Occupational Safety & Health Administration (“OSHA”) designated June 2-6, 2014 as “National Safety Stand-Down” week to encourage employers to talk with workers about fall hazards and prevention.

Unfortunately, fall safety is not a new problem in the construction industry.   Indeed, the California Department of Industrial Relation’s (“DIR”) website states that fatalities caused by falls from elevation continue to be a leading cause of death for construction workers, accounting for 269 of the 775 construction fatalities nationwide recorded in 2012.  However, fall protection is not the only safety concern on Cal/OSHA’s radar.  The DIR also announced that government investigators will examine other safety issues at construction sites, including trench safety, equipment safety and potential site hazards such as power lines.

Employers must be cautioned that if Cal/OSHA finds that a construction site does not comply with all applicable safety regulations, the employer will face significant consequences.  Among other things, construction sites may be cited and shut down until all safety problems are fixed.  As a result, construction employers should proactively check their worksites to determine whether adequate measures have been taken to identify safety hazards and prevent injuries.

On May 22, 2014, a California District Court conditionally certified a nationwide collective action covering about 1,500 female employees of Daiichi Sankyo Inc. (“DSI”) who allege the drug company paid them less than their male peers, ruling that the plaintiffs had met the low evidentiary burden to move forward collectively.

In SARA WELLENS, et al., v. DAIICHI SANKYO, INC., 2014 U.S. Dist. LEXIS 70628, the United States District Court for the Northern District of California granted the workers’ motion for conditional certification of their Equal Pay Act (“EPA”) claims, rejecting Parsippany, New Jersey-based Daiichi’s argument that the plaintiffs hadn’t identified a common unlawful policy that unifies their “highly individualized” pay claims.

According to the Daiichi Court, at the conditional certification stage, the question is not whether plaintiffs have proven their case that there is a widespread and discriminatory pay differential between men and women, but whether there is a reasonable basis to conclude that there are “potentially” similarly-situated class members who would “benefit” from notice.

DSI argued that the employees within the proposed collective class cannot be similarly situated because the job duties for the various positions included in the class vary widely.  The court held that DSI misperceived the question relevant to this conditional certification stage: are plaintiffs similarly situated with respect to their EPA allegations? Here, the court decided, they are.

Simply, the Plaintiffs contended, as supported by their declarations, that they were subjected to a policy at DSI to pay women less in violation of the EPA. Thus, according to the court, they have made a preliminary showing that within their job titles, they are similarly situated. That DSI may pay different wages for different positions (within set ranges), that job duties vary between divisions and job titles, and that different positions are compensated differently based on location, are not factors that defeat conditional certification.  Instead, whether the “disparate factual and employment settings of the individual plaintiffs” means that this case cannot proceed collectively, or would need to be prosecuted with subclasses for each of the job titles or geographic locations, is a matter to be determined at the second stage of the certification process.

The take-away from this case is that defeating conditional certification at stage one, the “notice stage,” is very difficult in light of the “fairly lenient standard.”  Rather than attacking the merits of plaintiff’s allegations, employers who are preparing to oppose a motion for conditional certification of an FLSA collective action should focus on highlighting the lack of an illegal policy, plan, or decision and the lack of similarities between the plaintiffs but understand that it is an uphill battle in which employers infrequently prevail.

As the days grow warmer, California employers with outdoor places of employment should think about compliance with California’s Heat Illness Prevention Regulations (Cal. Code of Regs. tit. 8, § 3395). To comply with the regulations, California employers should take four essential steps:

  • Develop and implement written procedures for addressing heat illness prevention;
  • Train employees and supervisors;
  • Provide adequate water; and
  • Provide adequate shade.

For more information, please read the entire article HERE.

A trial court lacked authority to rule on the enforceability of an arbitration agreement when the parties had contracted to delegate questions about the agreement’s enforceability to the arbitrator, the California Court of Appeal has ruled, reversing the denial of arbitration in a wrongful discharge action. Tiri v. Lucky Chances, Inc., No. A136675 (Cal. Ct. App. May 15, 2014).

Although the agreement’s delegation provision was in an adhesive contract, drafted by the employer and presented to the employee on a take-it-or-leave-it basis, and despite the fact the employee stated she was worried she would lose her job if she refused to sign it, the Court found the agreement was enforceable because it was not overly harsh or one-sided, and therefore, not substantively unconscionable.

Click here to continue reading the entire legal update on the Jackson Lewis web site.

On May 15, 2014, the California Assembly passed a proposed amendment to California’s statute governing sexual harassment training.

Currently, the statute requires employers with 50 or more employees to ensure workplaces are free of sexual harassment by providing training to their supervisory employees at least once every two years.  Such training must include information regarding the federal and California provisions prohibiting sexual harassment, and demanding its prevention and correction, as well as the remedies available to victims of sexual harassment.  The statute also requires that training include practical examples to demonstrate how to identify, prevent, and correct sexual harassment, discrimination, and retaliation.

The proposed amendment would require an additional component of training regarding the prevention of “abusive conduct” in the workplace, as defined in the amendment.  According to the bill’s author, the amendment is aimed at the prevention of bullying in the workplace.

Having passed the vote in the California Assembly, the bill currently is before the California Senate.  Employers should stay tuned, though, as they may be required to modify their current state-mandated training in the relatively near future.

For up-to-date developments on this and other workplace law topics, subscribe to the firm’s legal alert and event list here or follow us on Twitter and LinkedIn.

 

clock-and-money-on-the-weighing-scale-1172392-mWorried about potential wage and hour issues at your company? Do you stay awake at night wondering whether you’ve properly classified your independent contractors or whether your non-exempt employees are using their smartphones from home? Have no fear, as you will come away from this presentation with a better understanding of how to navigate the gauntlet of wage and hour issues employers face daily when determining how and what to pay their employees.

 

Our speakers will address:

  • classification  and misclassification concerns;
  • employees using electronic devices for work away from work;
  • compensability of telecommuting and travel time; and
  • employees otherwise working off the clock.

We will explore these and other issues from the perspective of both management and your employees. We will also provide insight on the recent policies and positions taken by the principal governmental enforcement agency relating to wage and hour matters.

Speakers will include Jackson Lewis attorneys whose practices are focused heavily on both litigating these issues and providing employers day-to-day counseling on how to avoid costly lawsuits as well as investigations by the Department of Labor on these sensitive and high-profile wage and hour issues. Questions are welcome before, during and after the presentation.

Registration: 8:30  – 9:00 a.m.
Program: 9:00 – 10:30 a.m.

Tuesday, June 17
Walnut Creek Marriott
2355 North Main Street
Walnut Creek, CA 94596

Wednesday, June 18, 2014
Jackson Lewis P.C.
50 California Street, 9th Floor
San Francisco, CA 94111

Tuesday, June 24, 2014
Crowne Plaza – Palo Alto
4290 El Camino Real
Palo Alto, CA  94306

CLE and HRCI credits pending.

Fee: $40

Questions? Please contact Rachel De Dora at (415) 394-9400 or SFRSVP@jacksonlewis.com.

CLICK HERE TO REGISTER

On April 21, 2014, a California Appellate Court held that an arbitration agreement is unconscionable and an employer cannot compel arbitration when the employer failed to translate the entirety of an English-language employment agreement containing an arbitration agreement, confidentiality clause, and enforceability provision for its Spanish-speaking employees.

In Esteban H. Carmona et al. v. Lincoln Millennium Car Wash Inc. et al. (Case Number B248143, State of California, Second Appellate District, Division Eight), current and former employees Esteban H. Carmona, Marcial H. Carmona, Pedro Cruz, and Yoel Isail Matute Casco sued Lincoln Millennium Car Wash Inc. and Silver Wash Inc. on behalf of themselves and similarly situated employees for alleged wage-and-hour violations.  Their employers sought to compel arbitration.  The trial court ruled that the arbitration agreement at issue in the case was unconscionable and refused to enforce it, noting that the car wash companies translated only certain parts of the agreement into Spanish and failed to explain it thoroughly.

The employment agreement at issue contained an arbitration clause under the heading “Settlement by Arbitration.”  It also included a confidentiality clause and an enforceability clause.  The arbitration clause and the main confidentiality clause were translated into Spanish but the confidentiality subagreement and the enforceability clauses were not translated.

The court held that the confidentiality clause in the employment agreement was part of the arbitration clause because it required employees to discuss any disputes with management before divulging any information about the car wash companies to “any persons, firms, corporations, media agency, government entities or agencies, [or] other entities.”  Thus, before going to any attorneys or submitting anything to a trial court or dispute resolution entity such as the American Arbitration Association (AAA), the employees were required to talk to the car wash companies.  Additionally, the enforceability clause in the confidentiality subagreement pertained to certain disputes between employee and employer and arbitration rights and was therefore also held to be a part of the arbitration clause.  Despite the fact that the clauses were under separate headings in the employment agreement, they were all part of the same employment agreement and were to be read in conjunction to ascertain the entire “arbitration agreement.”

The Appellate Court affirmed, holding the enforceability clause of the agreement was one key component hidden from new employees.  “The car wash companies hid the enforceability clause and the entire confidentiality subagreement by failing to translate that portion of the agreement into Spanish. The car wash companies evidently knew the plaintiffs required Spanish translations because they provided some translation. The record does not reveal why the car wash companies did not translate the entirety of the employment agreement.”

This case is another example of the importance of fully evaluating the language of an arbitration agreement and understanding who makes up the employer’s workforce before implementing such an agreement.  Employers should be mindful that the enforceability of an arbitration agreement can hinge on whether or not employees understand what they are signing.  Employers are advised to provide translations of the entirety of their arbitration agreements, not just select provisions, to employees who cannot speak and/or read English.

To read our legal article on the topic, click here.