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Brendan J. Begley

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Brendan is a shareholder who spearheads the firm’s Appeals and Writs group and is a member of the firm’s litigation, labor and employment, and trust, probate and elder-abuse litigation groups. He is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.

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Brenden Begley_retouchMany employers have arbitration agreements wherein employees agree to waive the right to file a lawsuit against the employer under various laws, including the California’s Private Attorney General Act (“PAGA”).  Employers were disappointed when the California Supreme Court ruled last June that such waivers of PAGA lawsuits are invalid, at least in state court.  See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014).

However, a number of federal trial judges in the Golden State subsequently disagreed and ruled that PAGA waivers are enforceable in their courts.  See, e.g., Ortiz v. Hobby Lobby Stores, Inc., E.D. Cal. Case No. 2:13-cv-01619 (Sept. 30, 2014).  Because a PAGA waiver still may be enforceable against an employee in federal court, many employers have either kept or inserted such waivers in their arbitration agreements.

This week it became apparent that including a PAGA waiver may destroy an employer’s ability to require arbitration in any type of lawsuit, be it under PAGA or some other theory (e.g., alleged discrimination, harassment, retaliation, or wage-and-hour or meal-and-rest-period violations).  Specifically, the California Court of Appeal ruled that a PAGA waiver will invalidate an entire arbitration agreement in state court if that agreement also includes a non-severability clause.  See Montano v. The Wet Seal Retail, Inc., Cal. Ct. App. Case No. B244107 (Jan. 7, 2015).
Continue Reading The New PAGA-Waiver Trap Door

Brenden Begley_retouchJust in time for the holidays, the National Labor Relations Board (“NLRB”) and the U.S. Department of Labor (“DOL”) have delivered additional workplace protections for workers and prospective unions this month.  Whether those government agencies are viewed as Santa or the Grinch coming down workplace chimneys depends upon one’s perspective.

Specifically, the NLRB gave a sugary treat to unions and employees who want union representation by ruling in early December that, under most circumstances, workers must be permitted to use their employers’ email systems for purposes of union-organizing activities.  Then, in mid-December, the NLRB stuffed the stockings of unions and employees who desire union representation by issuing a final rule shortening the time to hold an election to determine whether a majority of workers want to be unionized.

Many employers worry that this speedy-election change, which becomes effective on April 14, 2015, will diminish management’s ability to stage an anti-union campaign prior to voting.  As such, employers who are concerned about unionization likely will focus on year-round anti-union avoidance programs, instead of anti-union campaigns that commence only upon the filing of a representation petition.
Continue Reading U.S. Government Agencies: Santa or Grinch?

As the California Legislature reconvenes this week from its summer recess, it will be poised to advance bills that could, if enacted, impact the workplace.  Among them is AB 22, which would prohibit employers, except certain financial institutions, from obtaining a consumer credit report for employment purposes.  If AB 22 becomes law, employers would be able to obtain such reports only if the information sought is substantially job-related and pertains to a managerial or other sensitive position.

Under AB 22, information would be substantially job-related if the person for whom the report is sought would have access to the employer’s confidential information, money, or assets.  Likewise, the position would be a sensitive one if the information contained in the report is required by law to be disclosed or to be obtained by the employer.  Continue Reading New Rules Considered for Employment-Related Credit Checks in California

Employees in California generally are not eligible for state unemployment benefits if they quit their jobs voluntarily.  However, if the employee resigns for reasons related to childcare, he or she may still qualify for such benefits under the EDD’s regulations.  Childcare-related resignations often stem from changes in the employee’s domestic circumstances; for example, when the employee has separated or divorced from a spouse.  Such resignations may also result from the employee’s daycare provider becoming unable to continue performing such services; for example, if a daycare center closes its doors or if a relative, neighbor, or friend of the employee who watched the child is no longer available to do so.
Continue Reading LAW ALERT: California Employees Who Resign for Childcare Reasons May Still Qualify for State Unemployment Benefits

Employers who are sued in state court by employees may obtain significant advantages in the litigation by removing the lawsuit from state court to federal court.  For instance, federal courts require a unanimous jury verdict (instead of a supermajority verdict), and jurors in federal court are often drawn from pools that demographically are more conservative and less tolerant of high awards of damages in civil actions.  However, not all cases can be removed to federal court, and certain circumstances must be present to execute such a maneuver.  A common basis for removal known as “diversity jurisdiction” may exist if the employee is a California resident and the employer is incorporated and headquartered in a different state (even though the employer does business or has operations in California).Continue Reading LAW ALERT: Employers Sued by the DFEH May Enjoy Federal-Court Advantages if They Move Quickly