Daniel J. McCoy

Daniel J. McCoy

Fenwick & West LLP

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Employment Alert: Ninth Circuit Nixes Employee Class and Collective Action Waivers, Calling into Question Future Viability of...

Mandatory employment arbitration agreements suffered a significant blow last week, when the U.S. Court of Appeals for the Ninth Circuit (covering California, Washington, and other western states) found illegal and...more

9/2/2016 - Class Action Arbitration Waivers Collective Action Waivers Employment Contract Mandatory Arbitration Clauses NLRA Protected Activity Severability Doctrine Unenforceable Contract Terms

Employment Alert: DOL Increases Minimum Salary for Exempt Workers

Last week, the federal Department of Labor (“DOL”) announced its long-awaited final rule increasing the minimum salary requirements for certain exempt workers. The DOL announced its final rule on May 18, 2016, and the rule...more

5/24/2016 - DOL FLSA Minimum Salary Wage and Hour White-Collar Exemptions

Bag Checks for Apple Employees Not Compensable Time

Apple Inc. recently convinced a California federal district court to dismiss a certified class action alleging that Apple had a legal duty to pay store workers for time spent on bag checks at the end of shifts....more

12/23/2015 - Apple CA Supreme Court Class Action FLSA Integrity Staffing v Busk Retail Workers SCOTUS Wage and Hour

Fenwick Employment Brief

Bag Checks for Apple Employees Not Compensable Time - Apple Inc. recently convinced a California federal district court to dismiss a certified class action alleging that Apple had a legal duty to pay store workers for...more

12/22/2015 - Arbitration Agreements Class Action Class Action Arbitration Waivers Class Members Compensation Disability Discrimination EEOC Legal Ethics Reasonable Accommodation SCOTUS Summary Judgment Wage and Hour

Legislative Update

Governor Brown recently signed into state law the following employment law bills (among others): SB 358—Referred to as the California Fair Pay Act, this law is directed at closing the pay differential between male and...more

10/30/2015 - Anti-Retaliation Provisions Fair Pay Act Governor Brown New Legislation PAGA

Ninth Circuit Affirms Iskanian Ruling Rendering PAGA Waivers Illegal

In Sakkab v. Luxottica Retail North America, Inc., the Ninth Circuit affirmed the California Supreme Court’s Iskanian v. CLS Transportation Los Angeles, LLC decision (originally summarized in our June 2012 issue), which held...more

10/29/2015 - Civil Monetary Penalty Class Action Arbitration Waivers Federal Arbitration Act Iskanian v CLS Transportation Labor Code Labor Law Violations PAGA Pre-Dispute Arbitration Preemption Waivers

Whistleblower Statute Protects Employees From Retaliation For Reporting Personal Matters

A California Court of Appeal in Cardenas v. M. Fanaian, D.D.S., Inc. held that Labor Code § 1102.5, which protects employees from retaliation for reporting illegal conduct to law enforcement agencies, applies to an employee’s...more

10/27/2015 - Corporate Counsel Labor Code Police Reports Retaliation Whistleblowers Wrongful Termination

Other Employment-Related Bills Awaiting Action by California Governor

In addition to AB 465, California employers should watch for Governor Jerry Brown’s actions as to the following employment-related bills: SB 358: The California Fair Pay Act is directed at closing the pay differential...more

9/28/2015 - California Family Rights Act (CFRA) Employment Policies Family-School Partnership Act Governor Brown New Legislation PAGA

California Legislature Acts to Outlaw Pre-Employment Mandatory Agreements to Arbitrate Labor Code Claims

In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy...more

9/25/2015 - AFL-CIO Arbitration Class Action Arbitration Waivers Federal Arbitration Act Governor Brown Labor Code Mandatory Arbitration Clauses New Legislation Pre-Employment Agreements Preemption

Fenwick Employment Brief

California Legislature Acts to Outlaw Pre-Employment Mandatory Agreements to Arbitrate Labor Code Claims - In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will...more

9/24/2015 - Advance Notice Ban the Box California Family Rights Act (CFRA) DOL EEO-1 Executive Orders Federal Contractors Governor Brown Health Insurance Mandatory Arbitration Clauses Medical Reimbursement PAGA Pre-Employment Agreements Premiums PTO Sick Leave Unpaid Trainee

New Amendments Clarify California Paid Sick Leave

This month, the California Legislature enacted AB 304, an urgency measure that became effective on July 13 and provides much needed clarity on various aspects of California’s mandatory paid sick leave law (Healthy Workplaces,...more

7/30/2015 - Accrual Method Earned Sick Time Paid Sick Leave Act PTO Recordkeeping Requirements Sick Leave Sick Pay

DOL Proposes Exempt Classification Rule

The federal Department of Labor (“DOL”) released a proposed rule to amend the Fair Labor Standards Act’s white-collar employee exemptions (i.e., executive, administrative, professional, outside sales, and computer...more

7/29/2015 - Classification DOL Exempt-Employees Minimum Salary Non-Exempt Employees Over-Time Primary Duty Test Unpaid Overtime White-Collar Exemptions

Fenwick Employment Brief - July 2015

New Amendments Clarify California Paid Sick Leave - This month, the California Legislature enacted AB 304, an urgency measure that became effective on July 13 and provides much needed clarity on various aspects of...more

7/28/2015 - Accrued Benefits Administrative Interpretation Credit Checks DLSE DOL Employee Rights Employment Policies FLSA FMLA Healthy Workplaces Healthy Families Act 2014 Hiring & Firing Independent Contractors Minimum Wage Paid Leave Primary Beneficiary Test Sick Leave Unpaid Interns Wage and Hour White-Collar Exemptions

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 - California Family Rights Act (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 California Family Rights Act (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

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