Beginning January 1, 2019, new California law creates several new protections for employees bringing harassment claims.

Highlights of Senate Bill 1300 (SB 1300) follows:

Employer Responsibility for Nonemployees

SB 1300 mandates that an employer may be responsible for the acts of nonemployees with respect to any type of harassment (not just sexual harassment) against employees and other nonemployees working as interns or volunteers and service contractors.

Please find the rest of this article on our publications page here.

California employers with at least five employees must provide sexual harassment prevention training and education to all supervisory employees and non-supervisory employees in California by January 1, 2020.

Since 2005, employers with at least 50 employees have been required to train and educate all personnel in supervisory positions in California in the prevention of sexual harassment. Senate Bill 1343 lowers the number of employees to five and includes non-supervisors in the mandate.

Please find the rest of this article on our publications page here.

In O’Connor v. Uber Techs., Inc., 2018 U.S. App. LEXIS 27343 (9th Cir. 2018), a unanimous panel in the Ninth Circuit found that Uber’s arbitration agreements did not violate the National Labor Relations Act of 1935 (“NLRA”) and the question of arbitrability was designated to the arbitrator. The ruling provided a major victory to Uber, requiring each plaintiff to separately arbitrate his or her claims.

The O’Connor plaintiffs filed a putative class action against Uber for failure to remit gratuity paid by customers, and for misclassification of the drivers as independent contractors and failing to pay their business expenses. The O’Connor plaintiffs sought an order declaring Uber’s 2013 arbitration agreements unconscionable or, alternatively, requiring Uber to provide enhanced notice and opportunities to the putative class to opt out of arbitration. The district court granted the O’Connor plaintiffs’ alternative request and Uber provided drivers with updated licensing agreements on June 21, 2014, November 2014 and April 2015.

In a separate action, plaintiff Mohamed filed a putative class action against Uber asserting various federal and California law claims. The district court denied Uber’s motion to compel arbitration finding, among other things, that the existing arbitration agreements were unenforceable. On appeal in Mohamed v. Uber Techs., Inc., 848 F.3d 1201 (9th Cir. 2016), the Ninth Circuit reversed the district court’s order finding that the arbitrator must determine whether the agreements are enforceable and that the provisions were not adhesive or unconscionable under California law.

In April 2015, the district court granted the O’Connor plaintiffs’ motion for class certification, certifying a class of approximately 160,000 on the gratuity claim. In December 2015, the district court certified an additional subclass of drivers who accepted the agreements in 2014 and 2015. In the same order, it certified the original class and subclass on the expense reimbursement claim.

In December 2015, Uber issued new arbitration agreements to all drivers, causing the plaintiffs in the O’Connor, Mohamed and other similar matters to file separate motions to enjoin Uber from distributing and enforcing the new agreement and to prevent any further communications by Uber to class and putative class members. Initially, the district court granted plaintiffs’ motion, but after the Ninth Circuit’s ruling in Mohamed the district court vacated its order. The district court permitted Uber to issue the new agreement, but refused to vacate the order retroactively. This resulted in dozens of appeals (from four related actions pending in the same district court: O’Connor v. Uber Technologies, Inc., 3:13-cv-03826-EMC; Yucescoy v. Uber Technologies, Inc., 3:15-cv-00262-EMC; Mohamed v. Uber Technologies, Inc. 3:14-cv-05200-EMC; and Del Rio v. Uber Technologies, Inc., 3:15-cv-03667-EMC), which were consolidated.

In O’Connor, the Ninth Circuit rejected plaintiffs’ argument that the lead plaintiffs constructively opted out of arbitration on behalf of the entire class. The panel relied on the Supreme Court decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), finding that the arbitration agreements did not violate the NLRA, and reversed the district court’s order denying Uber’s motion to compel arbitration. The Ninth Circuit relied on its decision in Mohamed and reversed the district court’s order certifying the class, because the question whether the agreements were enforceable was designated to the arbitrator.

In light of the Ninth Circuit’s rulings, employers should examine any existing arbitration agreement or consider implementing an arbitration agreement that contains a class action waiver and provides that the arbitrator, and not the court, decide the issue of arbitrability and enforceability.

Beginning in 2019, employers in California will now be on the hook for recordkeeping violations well beyond the six-month statute of limitations.  Bill Number AB 2334 (Occupational injuries and illnesses: employer reporting requirements: electronic submission) co-sponsored by California Labor Federation and California Professional Firefighters was introduced by Thurmond (D) earlier this year, passed the State legislature and was signed by the Governor on September 19, 2018.  The law goes into effect January 1, 2019. To read the full article, please visit our OSHA Law Blog here.

In Fritsch v. Swift Transp. Co. of Ariz., LLC, No. 18-55746 (Aug. 18, 2018), the Ninth Circuit clarified, in a unanimous published decision, that, where a party may recover its attorney’s fees by statute or contract, the Court must include future fees as well as those already incurred in assessing whether a case meets the amount-in-controversy threshold under the Class Action Fairness Act (“CAFA”). To read the full article, please visit our Employment Class and Collective Action Update blog here.

A California federal judge recently certified a class of at least 843 Cinemark workers who allege Cinemark, a movie theater chain, failed to properly list overtime rates on employee wage statements, notwithstanding the fact that the purported class representative, Silken Brown, had settled her individual claim during the pending litigation. In opposing class certification, Cinemark raised challenges to Brown’s typicality as to the class and adequacy to represent the class as a result of Brown’s individual settlement. Please find the rest of this article on our Employment Class and Collective Action Update blog here.

An amendment to Section 1122 of the California Evidence Code on mediation confidentiality requires attorneys representing clients in connection with mediation to provide written disclosures to their clients about mediation confidentiality beginning January 1, 2019.

California law and public policy provide that all communications that take place in anticipation of and at mediation are confidential. “To carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme . . . unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception.” Even after mediation ends, communications and writings protected by the statutes are to remain confidential.

To further carry out the “strong legislative policy” underlying mediation confidentiality, SB 954 adds the following to the Evidence Code:

  • An attorney must provide the disclosures to clients before the client agrees to participate in mediation if the attorney represents the client at the time;
  • An attorney must provide the disclosures after being retained if the attorney is retained after the client agrees to participate in mediation;
  • The disclosure requirement does not apply in class or representative actions; and
  • The content and format of disclosures are detailed in the statute.

The client must sign the disclosure form. It is not clear if the disclosure requirement applies to cases removed to federal court.

The law does not otherwise change existing laws on mediation confidentiality or provide a specific remedy for failing to comply. The law states the failure to provide the required disclosures will not invalidate an agreement reached at mediation.

Please contact a Jackson Lewis attorney with any questions about the new law.

Since the start of the “Times Up” and “Me Too” movements, the spotlight has remained on the gender-based wage disparities existing between female and male actors that work on the same cinematic productions, yet receive unequal pay. However, many in Hollywood feel that women who work behind the scenes in film production or as part of the “below the line” crew, such as in script production, make-up and costume creation, pre- or post-production film editing, and graphics and art design, should not be overlooked. Please find the rest of this article in our Pay Equity Advisor Blog here.

The Ninth Circuit’s recent ruling in Dutta v. State Farm Mutual Automobile Insurance Company highlights the importance of evaluating and potentially challenging a plaintiff’s standing in a Fair Credit Reporting Act (“FCRA”) action.

Dutta alleged that, in violation of § 1681b of the FCRA, State Farm failed to provide him with notice of his FCRA rights and a copy of his consumer report prior to denying his employment application on the basis of information contained in the report.  Specifically, State Farm disqualified candidates who had a charged-off debt exceeding $1,000 in the preceding 2-year period.  Dutta’s credit report, which State Farm obtained, showed that he had a charged-off debt exceeding $1,000.  As a result, State Farm informed Dutta that his employment application was denied.  State Farm did not send Dutta a pre-adverse-action notice until a few days later, after which Dutta called State Farm to challenge some other inaccuracies in the report.

The district court granted State Farm’s motion for summary judgment on the ground that Dutta failed to establish an injury-in-fact and thus lacked standing. The record of debt shown in Dutta’s credit report was accurate, and State Farm would have terminated Dutta regardless of the other alleged inaccuracies in the report.  On appeal, the Ninth Circuit affirmed the district court’s ruling, stating that Dutta failed to show how State Farm’s technical violation of the FCRA either presented a material risk of harm or caused actual harm to him.  The Ninth Circuit reiterated the standard in Robins v. Spokeo, Inc. for evaluating whether a concrete harm exists based on a procedural statutory violation: (1) whether the statutory provision at issue was established to protect the plaintiff’s concrete interests; and, if so, (2) whether the alleged specific procedural violations actually harm or present a material risk of harm to such interests.

Dutta highlights the Ninth Circuit’s position that, if an employer bases its adverse employment decision on accurate data in a credit report, a plaintiff may very well fail to establish concrete harm and therefore standing then even if there is a technical violation of FCRA.

On August 13, 2018, the California Fourth District of Appeal held in Monster Energy Company v. Schechter that an attorney who signed his client’s settlement agreement under the phrase “approved as to form and content” was entitled to the granting of an anti-SLAPP motion in a case against him for breaching the confidentiality provision of the settlement, finding that he was not a party to that agreement.

Richard Fournier and Wendy Crossland (the Fourniers) filed an action (the Fournier case) against Monster Energy Company (Monster) and a related defendant when their 14-year-old daughter went into cardiac arrest in 2011 after consuming two Monster brand energy drinks and died. The attorney in the case, Bruce Schechter, and his firm, the R. Rex Parris Law Firm represented the Fourniers in their lawsuit.

In 2015, Schechter negotiated a settlement for the clients, which included a confidentiality provision purporting to bind him and his firm. Schechter later gave an interview to the website Lawyersandsettlements.com, in which he mentioned that a recent case he had handled against Monster, involving a 14-year-old girl, had settled for “substantial dollars for the family.” Lawyersandsettlements.com then published an online article that included Schechter’s statements.

Monster then sued Schechter and his firm, alleging in part that they had breached the terms of the settlement agreement, asserting causes of action for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unjust enrichment; and (4) promissory estoppel.

Schechter and his firm then filed a special motion to strike under Code of Civil Procedure § 425.16 (SLAPP motion) arguing, among other things, that Monster could not show a probability of prevailing on its breach of contract claim because Schecter and his firm were not parties to the settlement agreement. In opposition, Monster argued: (1) Schechter’s statements were commercial speech and therefore unprotected; and (2) Schecter and his firm were “[c]learly” bound by the settlement agreement.

The trial court denied the motion with respect to the breach of contact cause of action but granted it with respect to the other causes of action. Schecter and his firm appealed.

On appeal, the Court of Appeals held that – when a settlement agreement provides that a plaintiff and his or her counsel agree to keep the terms of the agreement confidential – and the plaintiff’s counsel signs the agreement under the words “approved as to form and content,” the Court of Appeals held the plaintiff’s counsel could not be liable to defendant for breach of the confidentiality provision. The Court noted: “The only reasonable construction of this wording is that they were signing solely in the capacity of attorneys who had reviewed the settlement agreement and had given their clients their professional approval to sign it. In our experience, this is the wording that the legal community customarily uses for this purpose.”

Recognizing that confidentiality is often a material term of a settlement agreement, the Court noted that a way to avoid this issue is “to draft a settlement agreement that explicitly makes the attorneys parties to the agreement (even if only to the confidentiality provision) and explicitly requires them to sign as such.

In sum, although a settlement agreement may bind one or more parties to its confidentiality provision, an attorney’s signature under the words “approved as to form and content” does not impose any specific obligation on the attorney to maintain the confidentiality of the settlement. In light of this holding, employers who wish to bind opposing counsel to the confidentiality provision of a settlement agreement should specifically draft the confidentiality provision to encompass opposing counsel as well as the party represented by the opposing counsel. Moreover, the settlement agreement should include an express statement signed by opposing counsel agreeing to be bound by the settlement agreement’s confidentiality provision. Please contact your local Jackson Lewis office if you wish to receive more detailed guidance on this, or any other employment issue.