Andrew Livingston

Andrew Livingston

Orrick, Herrington & Sutcliffe LLP

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Latest Publications


Not All Class Actions Are Created Equal Under CAFA, Says the Ninth Circuit

The Ninth Circuit recently delivered a setback to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”) when it interpreted the statute narrowly to exclude consideration of non-class...more

8/6/2015 - CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Jurisdiction Labor Law Violations PAGA Popular Rest and Meal Break Wage and Hour

Is Supervisor-Induced Stress a Protected Disability? California Appellate Court Says No

Employers often encounter challenging questions regarding their duty to accommodate employees who are diagnosed with stress, anxiety, or other mental health conditions that allegedly impact job performance absent...more

6/2/2015 - ADA Corporate Counsel Employer Liability Issues FEHA Reasonable Accommodation Supervisors Work-Induced Stress Young Lawyers

Splitting the Baby: SCOTUS Ruling in Pregnancy Discrimination Suit Calls For Review of Pregnancy Accommodations

On March 25, 2015, the U.S. Supreme Court issued a decision in Young v. United Parcel Service, Inc., holding that the Pregnancy Discrimination Act (PDA) requires courts to consider the extent to which an employer’s policy...more

4/6/2015 - ADA Disparate Treatment PDA Pregnancy Discrimination Reasonable Accommodation SCOTUS Title VII Young v United Parcel Service

IRS Announces That It Will No Longer Refund FICA Taxes on Severance Payments

The IRS recently announced that severance payments are taxable wages under FICA, and thus employers who seek tax refunds on those payments will be denied. The IRS’s position reflects the United States Supreme Court’s ruling...more

2/26/2015 - FICA Taxes Hiring & Firing IRS Quality Stores SCOTUS Severance Pay Termination

Franchisors Beware: NLRB Seeking to Super-Size Joint Employer Liability

The National Labor Relations Board’s (“NLRB”) General Counsel’s Office has again signaled its commitment to expanding the scope of the current test for joint employment. In a move that could have implications for a broad...more

12/31/2014 - Employer Liability Issues Fast-Food Industry Franchise Agreements Franchises Joint Employers McDonalds NLRB Unfair Labor Practices

Domino’s Delivers Key Ruling in Favor of Franchisors

The California Supreme Court recently issued an important victory for franchisors, finding that a franchisor does not stand in an employment or agency relationship with the franchisee and its employees for purposes of holding...more

9/30/2014 - Agents Dominos Franchises Franchisors Sexual Harassment Vicarious Liability

Ending in a Draw: In Iskanian v. CLS Transportation, the California Supreme Court Upholds Class Action Waivers in Arbitration...

Ever since the U.S. Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, California employers hoped this day would come. In a predictable result, the California Supreme Court today acknowledged that class...more

6/24/2014 - Arbitration Class Action Arbitration Waivers Employment Contract Federal Arbitration Act Iskanian PAGA

Are Employees Owed Pay for Going Through Security? SCOTUS Will Decide

The U.S. Supreme Court granted cert on March 3, 2014 in Integrity Staffing Solutions, Inc. v. Jesse Busk to resolve a federal circuit split on whether time employees spend in security screenings is compensable under the FLSA....more

3/18/2014 - FLSA SCOTUS Security Staffing Agencies Wage and Hour

Time’s Up: Supreme Court Upholds Enforcement of Claim Limitations in ERISA Plan Language

Christmas may have come a little early for plan administrators and companies looking for clarity in ERISA litigation. Last Monday, the U.S. Supreme Court ruled 9-0 in Heimeshoff v. Hartford Life & Accident Insurance Co. that...more

12/30/2013 - Claims Limitations Period Equitable Tolling ERISA Heimeshoff v. Hartford Life & Accident Insurance Co. Plan Administrators SCOTUS Statute of Limitations

A Midsummer Night’s Dream? Not So Much, For California Employers: Two New Employee-Friendly Bills Are Signed by Governor Brown

Even in the summer months, the California legislature is busy changing the laws that affect the state’s employers. This summer, California’s governor signed into law two bills that should be of interest to all employers—one...more

9/11/2013 - Attorney's Fees Employee Rights Employer Liability Issues FEHA Jerry Brown Legal Costs Wage and Hour

CAFA? Don’t mind if I do: Ninth Circuit Overturns Lowdermilk’s Legal Certainty Standard to Remove Class Actions Under CAFA

In a boon to defendants seeking to remove cases to federal court under the Class Action Fairness Act (“CAFA”), the Ninth Circuit has overturned a rule requiring defendants to show to a “legal certainty” that the...more

9/4/2013 - Amount in Controversy CAFA Class Action Damages SCOTUS Standard Fire Ins. Co. v. Knowles

Bark and Bite: Best Practices for Your Company’s Off-the-Clock Policy

Most employers maintain a written timekeeping policy stating that non-exempt employees should accurately record their time worked. Yet many employers are still facing class action lawsuits alleging off-the-clock claims. Below...more

5/29/2013 - Class Action Off-The-Clock Timekeeping Wage and Hour Wages

Ninth Circuit Holds Employees Are Not Required To Allege a Request for “Suitable Seats” For Their Claims to Proceed

Last week in Green v. Bank of America Corp., No. 11.56365 (9th Cir. Feb. 13, 2012), the Ninth Circuit held that “suitable seats” lawsuits cannot be dismissed at the pleading stage based on an employee’s failure to allege that...more

2/20/2013 - IWC Pleadings Suitable Seats Lawsuits Wage Orders

Class Certification Denied: California Court of Appeals Holds That Reliance Upon Legal, Companywide Policies Is Insufficient to...

On October 10, 2012, a California Court of Appeal held that a wage and hour class action could not be certified where the common company-wide policy at issue did not answer the “central liability” question of the case....more

11/28/2012 - Class Action Class Certification Wage and Hour

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