Daniel J. McCoy

Daniel J. McCoy

Fenwick & West LLP

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Employer’s Motive, Not Confirmed Knowledge Of Accommodation Need, Is Basis Of Religious Accommodation Violation

Federal anti-discrimination laws (“Title VII”) prohibit an employer from refusing to hire a candidate to avoid accommodating a suspected, but unconfirmed religious practice, according to a recent United States Supreme Court...more

6/26/2015 - Abercrombie & Fitch Disparate Treatment Dress Codes EEOC EEOC v Abercrombie Hiring & Firing Job Applicants Religious Accommodation Religious Clothing Religious Discrimination SCOTUS Title VII

Update On Recent And Anticipated Federal Regulatory Developments

Federal white collar exemptions: According to the Department of Labor’s (“DOL”) most recent Semiannual Regulatory Agenda, proposed rules revising the regulations implementing the federal Fair Labor Standards Act (“FLSA”) are...more

6/25/2015 - Bring Your Own Device DOL Exempt-Employees Fair Pay and Safe Workplaces Federal Contractors FLSA Off-Duty Employees Reporting Requirements Wage and Hour White-Collar Exemptions

Fenwick Employment Brief - June 2015

Employer’s Motive, Not Confirmed Knowledge Of Accommodation Need, Is Basis Of Religious Accommodation Violation - Federal anti-discrimination laws (“Title VII”) prohibit an employer from refusing to hire a candidate to...more

6/24/2015 - Abercrombie & Fitch Ban the Box DOL Dress Codes EEOC EEOC v Abercrombie Employee Restrooms Employer Liability Issues FLSA Hiring & Firing Job Applicants Joint Employers Misclassification OSHA Paid Leave Religious Accommodation Religious Clothing Religious Discrimination SCOTUS Title VII Transgender Wage and Hour

EEOC Conciliation Efforts Subject To Limited Judicial Review

In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are subject to judicial review, although such review is limited to ensure...more

5/25/2015 - Coal Industry Conciliation Discrimination EEOC Hiring & Firing Mach Mining v EEOC Sex Discrimination

Prevailing FEHA Defendant Not Entitled To Litigation Costs Unless Plaintiff’s Lawsuit Lacked Objective Basis

The California Supreme Court in Williams v. Chino Valley Independent Fire District affirmed the asymmetrical nature of litigation costs awards in discrimination lawsuits under the California Fair Employment and Housing Act...more

5/22/2015 - CA Supreme Court Cal Code of Civil Procedure Disability Discrimination FEHA Legal Costs Prevailing Party Public Entities

LinkedIn Reference Search Not Subject To Fair Credit Reporting Act

Finding that LinkedIn’s “Reference Search” function was not subject to the Fair Credit Reporting Act (FCRA), a Northern California federal district court dismissed a putative class action filed on behalf of job applicants who...more

5/21/2015 - Background Checks Credit Reports Dismissals Employee Credit Checks Employee References FCRA Hiring & Firing LinkedIn Putative Class Actions

Fenwick Employment Brief - May 2015

EEOC Conciliation Efforts Subject To Limited Judicial Review - In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are...more

5/20/2015 - Conciliation Discrimination EEOC Employer Liability Issues FCRA FEHA Human Resources Professionals Judicial Review LinkedIn Litigation Fees & Costs Mach Mining v EEOC Paid Leave Prevailing Party Sick Leave

Ninth Circuit Reviews Enforceability of Waiver of Right to Reemployment

Does California Business and Professions Code § 16600 prohibit employees from waiving their right to reemployment with prior employers? The answer is maybe, according to the Ninth Circuit’s recent decision in Golden v. Calif....more

5/4/2015 - Business & Professions Code Health Care Providers Hiring & Firing Hospitals Non-Compete Agreements Physicians Reemployment Waivers

New CFRA Regulations Provide Clarification on Leaves of Absence

New California Family Rights Act (“CFRA”) regulations become effective on July 1, 2015. The regulations provide needed clarification and bring the CFRA more closely in line with the federal Family and Medical Leave Act...more

5/3/2015 - CFRA FMLA Leave of Absence

Fenwick Employment Brief - April 2015

Ninth Circuit Reviews Enforceability of Waiver of Right to Reemployment - Does California Business and Professions Code § 16600 prohibit employees from waiving their right to reemployment with prior employers? The...more

4/29/2015 - Business & Professions Code CFRA H-1B Hiring & Firing Minimum Wage NLRA NLRB Non-Compete Agreements Offensive Language Protected Activity Termination Visa Caps Wage and Hour

Recent Cases Provide Helpful Reminders Regarding Best Practices (and Pitfalls) with Employment Arbitration Clauses

Scrutiny of mandatory, pre-employment arbitration agreements continues before California state and federal courts. Several recent decisions provide helpful reminders for employers drafting, reviewing or enforcing arbitration...more

3/30/2015 - Arbitration Class Action Arbitration Waivers Contract Drafting Employment Contract Hiring & Firing Mandatory Arbitration Clauses

Fenwick Employment Brief - March 2015

Recent Cases Provide Helpful Reminders Regarding Best Practices (and Pitfalls) with Employment Arbitration Clauses - Scrutiny of mandatory, pre-employment arbitration agreements continues before California state and...more

3/27/2015 - Arbitration Best Practices Employee Handbooks Employment Contract FMLA Independent Contractors NLRB Paid Leave Recruitment Policies Same-Sex Marriage

Termination Of Employee For Engaging In Outside Work While On FMLA/CFRA Upheld, But “Honest Belief” Standard Not Addressed

In Richey v. AutoNation, Inc., the California Supreme Court held that an arbitrator committed no legal error when he determined that an employer lawfully terminated an employee for engaging in outside employment while on...more

2/24/2015 - Arbitration Arbitrators AutoNation CA Supreme Court Car Dealerships FMLA Termination

On Premises, On-Call Time Compensable; Sleep Time Not Excluded

Emphasizing that California law provides greater protections than federal law to on-call employees, the California Supreme Court in Mendiola v. CPS Security Solutions, Inc. held that security guards were entitled to...more

2/23/2015 - CA Supreme Court Employer Mandates On-Call Employees Security Guards Wage and Hour

Fenwick Employment Brief - February 2015

On Premises, On-Call Time Compensable; Sleep Time Not Excluded - Emphasizing that California law provides greater protections than federal law to on-call employees, the California Supreme Court in Mendiola v. CPS...more

2/20/2015 - Affordable Care Act Arbitration CA Supreme Court Class Action Employer Liability Issues Employer Mandates Exempt-Employees On-Call Employees PAGA Reasonable Accommodation Rest and Meal Break Security Guards Wage and Hour

Waiting for and Undergoing Security Checks Not Compensable Time

The United States Supreme Court recently held in Integrity Staffing Solutions, Inc. v. Busk et al. that time spent waiting for and undergoing post-shift security checks is not compensable under the Fair Labor Standards Act...more

1/15/2015 - Amazon FLSA Integrity Staffing v Busk Internet Retailers NLRB Retailers SCOTUS Security Checks Wage and Hour

NLRB Expands Employees’ Use of Email for Protected Activity

The National Labor Relations Board (“NLRB” or the “Board”) has yet again expanded employees’ rights to discuss the terms and conditions of their employment or otherwise engage in protected activity. In Purple Communications,...more

1/14/2015 - Email Email Policies Employer Mandates NLRB Protected Concerted Activity Purple Communications

Fenwick Employment Brief - January 2015

Waiting for and Undergoing Security Checks Not Compensable Time - The United States Supreme Court recently held in Integrity Staffing Solutions, Inc. v. Busk et al. that time spent waiting for and undergoing post-shift...more

1/13/2015 - Cell Phones Employer Liability Issues Employer Mandates FLSA Integrity Staffing v Busk Labor Code NLRB Paid Leave Reimbursements SCOTUS Security Checks Sick Leave Wage and Hour Whistleblowers

Jury to Decide Adequacy of FMLA Recertification Notice Delivered by Email

A recent case allowing an employee to take claims under the federal Family and Medical Leave Act (“FMLA”) to trial underscores the importance of not simply following rote notice procedures, but ensuring such communications...more

12/3/2014 - Constructive Notice Email FMLA FMLA Certification Forms Notice Requirements

“Egregious” Insubordinate Facebook Post not Protected by NLRA

The National Labor Relations Board (“NLRB”) upheld a San Francisco nonprofit’s decision not to rehire two employees due to their Facebook conversation. In Richmond District Neighborhood Center, the nonprofit ran an...more

12/2/2014 - Facebook Hiring & Firing NLRA NLRB Popular Social Media

Fenwick Employment Brief - November 2014

Jury to Decide Adequacy of FMLA Recertification Notice Delivered by Email - A recent case allowing an employee to take claims under the federal Family and Medical Leave Act (“FMLA”) to trial underscores the importance...more

12/1/2014 - Class Action Arbitration Waivers D.R. Horton v NLRB EEOC Employer Liability Issues Facebook FMLA NLRA Notice Requirements Unpaid Interns

New Laws Affecting California Employers

The 2014 legislative session is in the books, and it produced several new laws affecting employers in California, including: Private arbitration companies must provide arbitration data on their websites, in a...more

10/27/2014 - Arbitration Arbitration Agreements Compliance Discrimination Employee Rights Employer Liability Issues Harassment Internships Sexual Harassment Training Unpaid Interns Workplace Bullying

Are LinkedIn Contacts The Employer's Trade Secrets?

A federal district court in California held in Cellular Accessories For Less, Inc. v. Trinitas LLC that whether LinkedIn contact information can be an employer's trade secret is a factual dispute that must be decided by a...more

10/24/2014 - Customer Lists Employment Contract Former Employee LinkedIn Trade Secrets

Fenwick Employment Brief - October 2014

New Laws Affecting California Employers - The 2014 legislative session is in the books, and it produced several new laws affecting employers in California, including: Private arbitration companies must provide...more

10/23/2014 - American Arbitration Association Arbitration Arbitrators Bank Holding Company Customer Lists Discrimination Employer Liability Issues Harassment JAMS join Joint Employers LinkedIn New Legislation Reporting Requirements Retaliation Sexual Harassment Subsidiaries Trade Secrets Training Unpaid Interns Whistleblowers Workplace Bullying

Employee Lawfully Terminated for Failure to Undergo Psychological Exam

In Kao v. University of San Francisco, a California appellate court upheld a jury’s verdict that the University of San Francisco (“USF”) lawfully terminated a professor who refused to undergo a fitness-for-duty examination....more

9/22/2014 - Fitness for Duty Exams Hiring & Firing Medical Examinations Termination

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