Daniel J. McCoy

Daniel J. McCoy

Fenwick & West LLP

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No Showing That “Primarily Engaged In” Requirement Met Where Executive Employee Spent More Than 50% Of Time Performing Non-Exempt...

In Guilfoyle v. Dollar Tree Stores, Inc., a federal district court in California held that an employer was unable to meet the “primarily engaged in” requirement of the executive exemption test where the employee spent more...more

2/25/2014 - Classification Employer Liability Issues Exempt-Employees Non-Exempt Employees

Walmart Potentially Liable For Wage Violations As Joint Employer Of Subcontractors’ Employees

Finding that ample evidence existed that Walmart exercised control over the working conditions of the workers employed by Walmart’s warehouse subcontractors, a California federal district court in Carrillo v. Schneider...more

2/24/2014 - Contractors Employer Liability Issues Subcontractors Wage and Hour Wages Wal-Mart

Age Discrimination Claim Survives Dismissal Where Questions Existed Regarding Adequacy Of Job Performance And Employee Presented...

Reversing a trial court’s decision in favor of the employer, a California Court of Appeals in Cheal v. El Camino Hospital held that a former employee may present her age discrimination claim to a jury because there were...more

2/21/2014 - Age Discrimination Appeals Hiring & Firing Poor Job Performance Termination

Access Of Computer System With Log-In Credentials Is Not Unlawful “Hacking”

A California federal court in Enki Corporation v. Freedman held that a former employee’s access of the employer’s computer systems through his log-in credentials did not amount to unlawful hacking under either the Computer...more

2/20/2014 - CFAA Data Protection Hackers

Fenwick Employment Brief - February 2014

A California federal court in Enki Corporation v. Freedman held that a former employee’s access of the employer’s computer systems through his log-in credentials did not amount to unlawful hacking under either the Computer...more

2/19/2014 - Age Discrimination Confidentiality Agreements Exempt-Employees Former Employee Hackers Non-Exempt Employees Unemployment Wage and Hour

New Tax Law—Think Twice Before Agreeing Not to Contest UI Claim

Under amendments to the Unemployment Insurance Integrity Act of 2011 that took effect in late October, employers must now timely and adequately respond to a state unemployment agency’s information request about an employee’s...more

12/20/2013 - Fines Information Requests Penalties Reporting Requirements Unemployment Benefits

No Duty to Explore Cause of Poor Performance Absent Notice of Correlation to Disability

A federal district court in Washington refused to require an employer, absent some notice from an employee of the need to do so, to investigate the cause of the employee’s poor performance to explore whether it might be...more

12/19/2013 - Disability Essential Functions Hiring & Firing Interactive Process Notice Requirements Performance Reviews Reasonable Accommodation

Discrimination Claim—Based on Association to Disabled Relative—Survives Dismissal Request

In Rope v. Auto-Chlor System of Washington, Inc., plaintiff Scott Rope, a former branch manager for Auto-Chlor, sued his employer for violation of the newly-enacted Michelle Maykin Memorial Donation Protection Act,...more

12/18/2013 - Associational Retaliation Disability Discrimination Employer Liability Issues Motion to Dismiss Termination

Class Action Waiver in Arbitration Agreement Survives NLRA Challenge

Finding the National Labor Relations Board failed to give appropriate weight to the Federal Arbitration Act, the federal Fifth Circuit Court of Appeals overturned a Board decision invalidating an arbitration agreement that...more

12/17/2013 - Arbitration Arbitration Agreements Class Action Collective Action Waivers Collective Actions D.R. Horton D.R. Horton v NLRB Federal Arbitration Act NLRB

Fenwick Employment Brief - December 2013

Finding the National Labor Relations Board failed to give appropriate weight to the Federal Arbitration Act, the federal Fifth Circuit Court of Appeals overturned a Board decision invalidating an arbitration agreement that...more

12/16/2013 - Arbitration Arbitration Agreements Class Action Arbitration Waivers Class Certification D.R. Horton Federal Arbitration Act NLRA NLRB

New Trial To Determine Whether Pregnancy Leave Was “Substantial Motivating Reason” For Termination Upon Return

Following the California Supreme Court’s guidance in Harris v. City of Santa Monica (February 2013 FEB) that an employment action is illegal only where bias is a “substantial motivating factor” for the action, a California...more

10/24/2013 - Harris v City of Santa Monica Maternity Leave Pregnancy Pregnancy Disability Leave Law Substantial Motivating Factor Test Termination

Arbitration Agreement Withstands Challenge For Lack of Notice of Arbitration Rules or Mutuality

In Peng v. First Republic Bank, a former employee asserting discrimination and other claims challenged the enforceability of the arbitration agreement she signed as a condition of employment. Specifically, she asserted that...more

10/23/2013 - Arbitration Arbitration Agreements Employment Contract Notice Requirements

Family-Related Legislative and Ordinance Update

California employers should note the following legislative developments related to employees and their familial obligations: SB 770: Governor Brown signed into law a bill that expands the list of family members for...more

10/22/2013 - Caregivers Discrimination Employee Rights Family Members Retaliation Wages

Putative Class Targets Purported Deficiencies in Employer Meal and Rest Break Policies

Following the California Supreme Court’s Brinker ruling (April 2012 Employment Alert) that a California employer satisfies its meal/rest period obligations by “providing” rather than “ensuring” employees take rest and meal...more

10/21/2013 - Class Action Compliance Employee Rights Putative Class Actions Rest and Meal Break

Employer Liable for Disregarding Complaints About Soiled Toilet, Porn, and Retaliation — Possible Punitive Damages

In Davis v. Kiewit Pacific Company, Lisa Davis, a heavy machine operator and one of two female employees at a 100-employee excavation project, prevailed in her claims of gender discrimination, hostile work environment, and...more

10/18/2013 - EEO EEOC Employer Liability Issues Gender Discrimination Hostile Environment Punitive Damages Retaliation

Is an Honor Vacation Policy Right for My Company? [Video]

Companies in California and across the United States are moving away from traditional vacation accrual policies to unlimited vacation policies, or honor vacation policies. What is an honor vacation policy? How can start-ups...more

10/17/2013 - Accrued Benefits Corporate Culture Employee Benefits Leave of Absence Sick Leave Startups Vacation Leave

Fenwick Employment Brief - October 2013

In Davis v. Kiewit Pacific Company, Lisa Davis, a heavy machine operator and one of two female employees at a 100-employee excavation project, prevailed in her claims of gender discrimination, hostile work environment, and...more

10/17/2013 - Arbitration Arbitration Agreements Employer Liability Issues Gender Discrimination Hostile Environment Minimum Wage Pregnancy Retaliation Termination

Fenwick Employment Brief - July 2013: DOMA and Prop 8 Rulings Clear the Way for Same-Sex Marriages in California and Require...

In U.S. v. Windsor, the court struck down a portion of the federal Defense of Marriage Act (“DOMA”) as unconstitutional. DOMA, for purposes of federal tax and benefits laws, defined marriage as only between “one man and one...more

7/26/2013 - DOMA Employee Benefits FMLA Healthcare Hollingsworth v Perry Marriage Proposition 8 Same-Sex Marriage SCOTUS US v Windsor

Fenwick Employment Brief - July 2013: Waiver of Class Action Remedy Enforced Even Though Anticipated Costs of Individual...

In American Express Company v. Italian Colors Restaurant, a non-employment case, the Supreme Court enforced a class action waiver in an American Express (“AMEX”) arbitration agreement despite a restaurant’s objection that the...more

7/25/2013 - American Express American Express v Italian Colors Restaurant American Recovery and Reinvestment Act Arbitration Arbitration Agreements Class Action Arbitration Waivers SCOTUS

Fenwick Employment Brief - July 2013: Employee Claiming Retaliation Must Meet Higher Standard of Proof

In another favorable ruling for employers, the Supreme Court in University of Texas Southwestern Medical Center v. Nassar clarified that employees must satisfy a higher “but for” standard of proof to prevail in a Title VII...more

7/24/2013 - Adverse Employment Action But For Causation Discrimination EEOC Employer Liability Issues Harassment Retaliation SCOTUS Supervisors Title VII UT Southwestern Medical v Nassar

Fenwick Employment Brief - July 2013: U.S. Supreme Court Decides Several Employment and Employment-Related Cases

Employer strictly liable for supervisor’s harassment of employee only if supervisor has hire and fire authority over subordinates - In a favorable decision for employers, the U.S. Supreme Court in Vance v. Ball State...more

7/23/2013 - Adverse Employment Action Discrimination FEHA Harassment Hiring & Firing Racial Discrimination Retaliation Supervisors Vance v. Ball State University

Fenwick Employment Brief - July 2013

In a favorable decision for employers, the U.S. Supreme Court in Vance v. Ball State University ruled that employers are strictly liable for harassment by a supervisor where the supervisor is empowered to take tangible...more

7/22/2013 - Adverse Employment Action Affordable Care Act Class Action Arbitration Waivers Delays DOMA EEOC FEHA Harassment Proposition 8 Retaliation Same-Sex Marriage SCOTUS Supervisors Title VII US v Windsor Vance v. Ball State University Vicarious Liability

Fenwick Employment Brief - May 2013: Software Programmer Criminally Charged For Hacking Former Employer's Network

The federal Department of Justice recently filed criminal charges against a 41-year old software programmer and system manager who hacked into his former employer's computer network, causing $90,000 in damage. The complaint...more

5/16/2013 - Criminal Sanctions Hackers Software Developers

Fenwick Employment Brief - May 2013: Unreimbursed Expense May Result in Minimum Wage Violation, But Not a Labor Code § 450 Private...

In Sanchez v. Aerogroup, the plaintiff alleged that as a condition of her employment she was required to purchase at least eight pairs of shoes from her employer without reimbursement. She asserted violations of both minimum...more

5/16/2013 - Minimum Wage Reimbursements Unpaid Wages Wage and Hour

Fenwick Employment Brief - May 2013: Substantive Fairness Overcomes Elements of Procedural Unconscionability in Mandatory...

In yet another case addressing the enforceability of mandatory arbitration agreements in California, a Southern California federal district court in Williams v. Department of Fair Employment and Housing recently held that...more

5/15/2013 - Mandatory Arbitration Clauses Unconscionable Contracts

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