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Don’t Throw Out Your Class-Action Waivers Just Yet

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

The United States Supreme Court decided last week to resolve a split in the lower courts as to whether the National Labor Relations Act (“Act”) preempts class-action waiver clauses in arbitration agreements between employers and their employees.  This is an important development, as the use of such waivers in arbitration agreements (if permissible) can drastically reduce an employer’s exposure to costly class actions alleging overtime violations, missed meal-and-rest periods, and other types of claims.   Brenden-Begley-05_web

A number of courts (including the appellate courts that hear appeals from federal courts in California and Illinois) agreed with the National Labor Relations Board (“Board”) that the Act invalidates those waivers.  Meanwhile, three other federal appellate courts rejected the Board’s position.  Stepping into the fray, the high court last week decided to review two decisions that agreed with the Board and one that disagreed with the Board; namely, Epic Systems Corp. v. Lewis (No. 16-285), Ernst & Young v. Morris (No. 16-300), and NLRB v. Murphy Oil USA, Inc. (No. 16-307).

The Supreme Court currently has just eight justices after the death last year of Justice Scalia, who authored a significant pro-arbitration opinion in 2011.  Without a replacement for Justice Scalia being confirmed by the U.S. Senate, the high court may split 4-4 on the resolution of these three cases, which have been consolidated.  Such a result most likely would create confusion rather than clarity as to the state of the law.  Accordingly, the issue may not be resolved without a ninth justice on the Supreme Court’s bench.

The takeaway here for employers is that it may be too soon to discard those class-action waivers.

Emotional Distress Damages Allowed Under FLSA

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Retaliation and Wrongful Termination

Count the Fifth Circuit among the latest to allow emotional distress damages to employees who successfully sue for retaliation under the Fair Labor Standards Act.  In a December 19, 2016 opinion, the Fifth Circuit held that the district court should have allowed the jury to receive an instruction on emotional distress damages when it was considering an employee’s FLSA retaliation claim.  In the same opinion, however, the Fifth Circuit did clarify that only employees can bring claims under the FLSA.

The Case

Plaintiffs Santiago Pineda and Maria Pena are a married couple who lived together in an apartment owned by the defendant, JTCH Apartments.  Pena leased the apartment from JTCH.  Pineda performed maintenance work around the complex.  As part of Pineda’s compensation, JTCH discounted Pena’s rent.  After Pineda brought a claim seeking unpaid overtime under the FLSA, JTCH served Pena with a notice to vacate for nonpayment of rent in the exact amount that it had discounted for Pineda’s maintenance work.  Upon receiving the notice, Pineda amended his lawsuit to assert a retaliation claim.  Pena joined the lawsuit to assert her own FLSA retaliation claim.

During trial, the district court awarded JTCH judgment as a matter of law against Pena on the ground that she was not JTCH’s employee and only employees could file suit under the FLSA.  The jury found in Pineda’s favor on his claims, but the district court refused his request that the jury receive an instruction on emotional distress damages for his FLSA claim.  Both Pineda and Pena appealed.

To read the full article, please visit the HRUSA webpage at


New Year, New Laws

Posted in Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

Happy New Year!   The new year frequently marks new changes in the law, and this year is no exception.  There are several important changes that went into effect on January 1st.  Here are some of the major changes that went into effect on January 1, 2017:

  • Minimum Wage Change: On January 1st, for employers with 26 or more employees, the California minimum wage will increase to $10.50/hour.   The minimum wage remains at $10.00 for employers with 25 or fewer employees.  Employers with 26 or more employees should use the $10.50 rate to determine the “salary basis” for exempt employees.Shauna Correia.standing
  • Arbitration Agreements: Beginning January 1st, California employees cannot be required to enter into agreements (including employment and arbitration agreements) requiring them to apply another state’s laws to their disputes, or agree to litigate in any venue outside of California, unless the employee had advice of counsel.
  • Immigration Verification: Existing law prohibits an employer for engaging in certain actions related to immigration, like refusing to honor immigration documents that appear to be genuine.  Under the new law, it is unlawful for an employer to refuse to honor documents based on the status or term of the person’s work authorization.  Additionally, it is unlawful to reinvestigate or re-verify an incumbent employee’s authorization to work.  For more information on this law, contact one of our attorneys to make sure you are in compliance.
  • Wage Discrimination: Existing law generally prohibits employers from paying an employee lower wages than those paid to employee of the opposite sex for the same job and requires the same skill, effort, and responsibility.  A pay difference can, however, be based on several factors including seniority, merit, quantity/quality of production, or a bona fide factor other than sex (like education, training, or experience).  This new law provides that, effective January 1, an employee’s prior salary alone cannot justify a difference in compensation as a bona fide factor.    Additionally, these requirements were expanded to include differences in race as well as sex.
  • Asking about Juvenile Proceedings on Job Application: The  new law prohibits an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information related to an arrest, detention, adjudication, or court disposition that occurred while the person was subject to juvenile court.  Some exceptions apply for certain employers, like health facilities.

If you have any questions about whether your particular business practices are compliant with these laws, or need assistance updating your employment and arbitration agreements, please contact one of our labor and employment attorneys.

Neutral Solutions: We Help You Connect The Pieces

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations

The Neutral Solutions Team at Weintraub Tobin specializes in training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.  For more information, please visit our Trainings page here.

Puzzle 1- training

Things You Hope You Will Never Need to Know: Liability Arising from Serious Workplace Injury

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

Liability arising from serious workplace injury can be divided into four general categories: (1) worker’s compensation; (2) administrative agency (OSHA); (3) criminal liability; and (4) other civil liabilities.

  1. Worker’s Compensation

    Worker’s compensation is, for the most part, a strict liability system -any bona fide workplace injury, regardless of cause – is covered.Chuck-Post-07_web

The worker’s compensation system provides medical treatment, wage replacement and, in some cases, vocational rehabilitation.  Civil claims against an employer as a result of a workplace injury are, with only a few narrow exceptions, prohibited. Those civil claims (negligence, etc.) are barred by the worker’s compensation exclusivity preemption rule, which makes the worker’s compensation system the exclusive forum for all claims resulting from worker injury – including serious injury and death.

In certain cases, an employee may seek an enhancement of these benefits by claiming that the injury resulted from the employer’s serious and willful violation of worker safety (“S&W claim”). If successful, the injured worker’s benefits will be enhanced up to 150 percent of the underlying worker’s compensation award. For example, three million in medical and wage replacement could result in up to $1.5 million in S&W liability. There is also a corollary provision allowing for some reduction in worker’s compensation benefits in cases where the injured worker engaged in serious and willful misconduct causing the injury.

Your worker’s compensation carrier will process and administer the claim and, if necessary, defend the company (and appoint counsel) in the event that its claim decisions are appealed or if there are other claim proceedings before the Worker’s Compensation Appeals Board (“WCAB”).

Worker’s Compensation Insurance Carriers are barred by law from defending employers in S&W claims or indemnifying them for any S&W award. This is like the rule that punitive damages and fines are not insurable.

If an S&W claim is brought against your company, the company will be required to defend itself (by retaining counsel) and cover any penalty from its own resources and revenues.

  1. Administrative Agency Liability (Cal-OSHA).

Cal-OSHA is responsible for worker safety regulation and enforcement.  Cal-OSHA is required to investigate all employer reports of workplace injury or death.

Cal-OSHA has specific regulations and permitting requirements for industries and hazardous activities. For an overview, see:

Noncompliance with OSHA regulations can result in civil and criminal penalties. An explanation of the citation levels and civil and criminal penalties can be found on page ten of the following OSHA pamphlet:

In sum, violations of OSHA regulations can result in issuance of a citation. These citations range from” regulatory” violation (least serious) through “general”, “serious”, “accident related serious, “willful” and “repeat” violations.  The last types of citation are the most serious.   If a citation is issued there is an opportunity to discuss the citation with the investigator and OSHA staff. Following citation issuance, the citation (and associated fines/penalties) may be appealed to a hearing before an administrative law judge within OSHA. In turn, those decisions may further appealed and reviewed on the record by the Cal-OSHA appeals board.

  1. Criminal Liability

A willful violation that results in death or permanent or prolonged impairment of the body of an employee may result in criminal liability. (This liability is also discussed on page ten of the OSHA pamphlet linked above.)  Both fines and imprisonment are possible.

There are also separate criminal liabilities for making false statements in the course of a workplace accident investigation.

  1. Civil Claims.

As stated above, almost all civil claims against an employer (for workplace injury) are preempted by the worker’s compensation remedy. This includes actions for negligence/wrongful death by a worker’s family against the employer.  Workers may sue non employer third parties for injuries. These non-employer parties can include manufactures of products that caused (or may have caused) the injury or (non workplace) operators of vehicles that cause injury.

The attorneys in Weintraub Tobin’s Employment Law Group assist employers in all areas of employment law.  Contact any one of us if we can be of assistance.


Neutral Solutions: We Help You Connect the Pieces

Posted in Labor Law, Retaliation and Wrongful Termination

L&E social media puzzle adThe Neutral Solutions Team at Weintraub Tobin can help you avoid expensive and protracted litigation. We specialize in:

  • Training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.
  • Conducting independent investigations into complaints of misconduct in the workplace.
  • Mediating employment disputes both pre and post litigation

For more information please contact:

Lizbeth “Beth” West 916.558.6082 or

Vida L. Thomas 916.558.6058 or

Meagan D. Bainbridge 916.558.6038 or

Arizona’s New Independent Contractor Declaration Law

Posted in Employee Privacy Rights, Employment Contracts and Agreements, Labor Law, New Legislation and Regulations

On August 6, 2016, the Arizona State Legislature enacted the “Declaration of Independent Business Status” law (“DIBS”). The DIBS added Chapter 10 to Title 23 of the Arizona Revised Statutes (Arizona’s “Labor” statute). In short, DIBS allows certain Arizona companies (referred to in the statute as an “employing unit”) to obtain a declaration from those individuals they deem “independent contractors” (rather than employees) so that a rebuttable presumption exists that the relationship is in fact one of independence. Obtaining a declaration under the DIBS is discretionary and the statute states expressly that compliance with the law and the execution of a declaration of independent business status are not mandatory in order to establish the existence of an independent contractor relationship. Further, the failure of a party to execute a declaration in compliance with the DIBS does not create any presumptions and is not admissible to deny the existence of an independent contractor relationship.

Read the rest of the blog post at

Top Reasons to Mediate Employment Disputes

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

2.  There is No Adjudicator to Determine Fault or Liability.

Mediation is about resolving disputes on terms the parties agree to.  Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.Beth-West-15_web

3.  Mediation Saves Money.

Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.

4.  Mediation is Efficient and Saves Time.

Courts are impacted and trial dates are usually set out years into the future.  As such, parties will spend many years fighting their case before they ever get before a jury.  On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.

5.  Mediation is Confidential.

Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.

6.  Mediation Allows for Candid Communication.

Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute.  They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.

7.  Mediation Allows for Creative Problem Solving.

Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.

8.  Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.

In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees.  Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee.  By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.

9.  Mediation is Final – No Appeals.

Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.


For more information, please visit my bio at  For information on our Employment Mediation services, please visit our website at

Holiday Parties: An HR Nightmare!

Posted in Harassment, Wage & Hour

It’s that magical time of year! Time for hot cocoa, warm fires, glad tidings – and office holiday parties! Office holiday parties are a time for co-workers to relax and for employers to show appreciation to employees, all of which builds office morale. Of course, office holiday parties also come with an extra serving of risk, especially when the employees get a little too, ahem, relaxed. In fact, inappropriate behavior at office parties is so common that a whole movie is based on this premise (coming out in theaters today)! The challenge faced by employers is finding a balance between providing a good time for their employees, while also preventing the horrors that can come in the holiday party environment.

Holiday Spirits 

Let’s get right to a common source of risk, shall we? Alcohol will be present at most office holiday parties. Of course, there’s nothing wrong with responsible adults enjoying adult beverages responsibly. But even just one employee who exceeds their limits can be costly. For example, there is case law suggesting that if an employee is provided alcohol at an office party, becomes intoxicated and is allowed to drive home, that employee may be considered still within “the scope of employment” and the employer may be liable for the employee’s conduct while driving home (including workers’ compensation benefits if the employee is hurt in a car accident). Of course, alcohol also lowers inhibitions, which can lead to increased risk of inappropriate behavior, as discussed below. Some possible ways of reducing the risks associated with serving alcohol are:

  • Serve with a meal, with servers controlling the portions
  • Give employees a limited number of “drink tickets” for the bar
  • Offer to provide transportation home (let employees know in advance that the company will call them an Uber or a cab upon request)

The Gift of Inappropriate Behavior

Most employees have at least reviewed company policies on appropriate conduct in the workplace – but many seem to throw those guidelines out the window when it comes to an office party! In the relaxed atmosphere of a party, especially when alcohol is lowering inhibitions, employees suddenly feel free to say and do things that they otherwise would never say or do in the workplace. Employees often feel free at an office party to make jokes and innuendos that they know are otherwise off-limits. Or the employee who has been harboring a crush on a co-worker is suddenly emboldened by holiday spirit (and spirits) to make his move, but those advances are not welcome. Of course, inappropriate behavior is not limited to sexual harassment! Employees may branch into inappropriate and even prohibited topics of conversation. For example, Supervisor Sally may know that she cannot discuss Employee Emma’s medical leave, but suddenly her inhibitions are lowered and she answers Employee Busybody when asked in a hushed tone, “so, what is the deal with Emma, anyway?” It is important to remember that workplace policies (and laws!) still apply at the office holiday party, and you may want to send out a reminder to that effect before the party, to at least your supervisors. Also, if there are any complaints about conduct at the holiday party, you must investigate and discipline appropriately, just as you would with any workplace complaints.

To Pay or Not to Pay

A common question is whether employees must be paid wages for time spent at the office holiday party (which could mean overtime wages). The answer hinges on whether attendance is mandatory. If you require employees to attend the party, then you will be required to pay wages, including overtime where appropriate. However, if you make attendance optional, no wages need be paid.

Best wishes and glad tidings as you navigate the tricky waters of the HR nightmare that is an office holiday party – and remember, we’re here if you need us to help recover the morning after!

Now Available! Weintraub Tobin’s 2017 Labor and Employment Seminar and Training Schedule

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

Weintraub Tobin’s 2016 Labor and Employment Seminar and Training schedule is now available.   Click here for a copy of the schedule.2017 Seminar Series Logo

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814