Michael A. Sands

Michael A. Sands

Fenwick & West LLP

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IRCA Does Not Preempt FEHA, But Limits Available Remedies

In Salas v. Sierra Chemical Co., the California Supreme Court addressed the issue of whether the federal Immigration Reform and Control Act (“IRCA”) preempts the application of the antidiscrimination provisions of...more

7/28/2014 - Discrimination FEHA Immigrants Immigration IRCA

Change To Handbook Arbitration Policy—Adding Class Action Waiver—Was Valid And Enforceable

On the same day that the California Supreme Court issued Iskanian, another important ruling with respect to class action arbitration waivers was issued by the Ninth Circuit Court of Appeals. In Davis v. Nordstrom, the court...more

7/25/2014 - Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers Employee Handbooks Nordstrom Inc.

California Employees Can Waive Class Claims In An Arbitration Agreement, But Not PAGA Claims

Resolving an issue that has created uncertainty for California employers, the California Supreme Court recently held in Iskanian v. CLS Transportation Los Angeles, LLC that class action waivers in employment arbitration...more

7/24/2014 - Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers CLS Transportation Employer Liability Issues Federal Arbitration Act Iskanian PAGA Trucking Industry

Fenwick Employment Brief - July 2014

California Employees Can Waive Class Claims In An Arbitration Agreement, But Not PAGA Claims - Resolving an issue that has created uncertainty for California employers, the California Supreme Court recently held in...more

7/23/2014 - Arbitration Canning v NLRB Class Action Arbitration Waivers CLS Transportation Delivery Drivers Employee Handbooks Employer Liability Issues Employment Contract FEHA Fraud Independent Contractors IRCA Iskanian Newspapers NLRB PAGA Sales Commissions SCOTUS Trucking Industry Waivers

Yelling At Employee And Throwing Book In Her Direction Not Sufficient To Support Hostile Work Environment Claim

In Brooks v. Grundmann, a federal court of appeals in the District of Columbia held that a manager’s conduct amounted to no more than “ordinary tribulations of the workplace” and was thus insufficient to support a minority...more

5/22/2014 - Appeals Employer Liability Issues Hiring & Firing Hostile Environment Title VII Workplace Violence

Employer Can Require Fitness-For-Duty Examination After Return From FMLA Leave

A California appeals court in White v. County of Los Angeles held that an employer could require a fitness-for-duty examination after returning an employee to work based on her medical provider’s certificate, provided that...more

5/21/2014 - Fitness for Duty Exams FMLA Leave of Absence

Disability Accommodation Through Telecommuting More Reasonable In Modern Workplace

In EEOC v. Ford Motor Company, the federal Sixth Circuit appellate court (covering Kentucky, Michigan, Ohio, and Tennessee) recently held that telecommuting may be a reasonable accommodation under the Americans with...more

5/20/2014 - ADA Disability Disability Discrimination Reasonable Accommodation Telecommuting

Fenwick Employment Brief - May 2014

Disability Accommodation Through Telecommuting More Reasonable In Modern Workplace - In EEOC v. Ford Motor Company, the federal Sixth Circuit appellate court (covering Kentucky, Michigan, Ohio, and Tennessee) recently...more

5/19/2014 - ADA Disability Disability Discrimination EEOC Employee Rights Fitness for Duty Exams Ford Motor Internships Minimum Wage Telecommuting Unpaid Interns Wages

Employees May Choose to Use Vacation Instead of FMLA or CFRA Leave for Medical Absences

The Ninth Circuit (California) held in Escriba v. Foster Poultry Farms, Inc. that an employee can choose to use vacation instead of leave under the Family and Medical Leave Act (“FMLA”) or California Family Rights Act...more

3/21/2014 - CFRA FMLA Sick Leave Vacation Leave

U.S. Supreme Court Expands SOX Whistleblower Protection to Employees of Private Contractors

In a landmark whistleblower decision by the United States Supreme Court, Lawson, et al. v. FMR LLC, et al., the Court held that the whistleblower protections under the Sarbanes-Oxley Act of 2002 (“SOX”) apply not only to...more

3/20/2014 - Contractors FMR LLC Lawson v FMR Sarbanes-Oxley SCOTUS Subcontractors Whistleblower Protection Policies Whistleblowers

San Francisco Limits Inquiry into Criminal History of Applicants and Employees

In February, the San Francisco Board of Supervisors passed the Fair Chance Ordinance, which limits when and to what extent employers can inquire into the criminal history of applicants and employees. The ordinance also...more

3/19/2014 - Background Checks Criminal Background Checks Hiring & Firing

Fenwick Employment Brief - March 2014

In February, the San Francisco Board of Supervisors passed the Fair Chance Ordinance, which limits when and to what extent employers can inquire into the criminal history of applicants and employees. The ordinance also...more

3/18/2014 - Barack Obama CFRA Contractors Criminal Background Checks Criminal Records Employee Rights Fair Housing Act FLSA FMLA FMR LLC Job Applicants Lawson v FMR Sarbanes-Oxley SCOTUS Sick Leave Subcontractors Wage and Hour Whistleblower Protection Policies Whistleblowers

Recent EEOC Religious Discrimination Cases Are Reminder of Undue Hardship Standard

Over the last few months, the EEOC has settled various religious discrimination lawsuits against employers across the U.S., including California....more

1/21/2014 - EEOC Religious Discrimination Undue Hardship

One-Sided Discrimination Investigation Inadmissible in Court

In Castelluccio v. International Business Machines, a federal district court in Connecticut held that IBM could not introduce evidence of its investigation into an employee’s age discrimination claim due to the one-sided...more

1/20/2014

Failure to Comply with ADEA/OWBPA Does Not Entirely Invalidate Release

A Ninth Circuit opinion, Harmon v. Johnson & Johnson, held that a release of claims that did not comply with the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection Act (“OWBPA”),...more

1/17/2014 - ADEA Age Discrimination Compliance OWBPA

EEOC Position Statement Comes Back to Bite Employer in Civil Lawsuit

In Kwan v. Andalex Group, LLC, the Second Circuit (covering New York, Connecticut and Vermont) considered the impact of prior inconsistent statements made in the employer’s Equal Employment Opportunity Commission (“EEOC”)...more

1/16/2014 - Compliance EEOC Enforcement Termination

Fenwick Employment Brief - January 2014

EEOC Position Statement Comes Back to Bite Employer in Civil Lawsuit - In Kwan v. Andalex Group, LLC, the Second Circuit (covering New York, Connecticut and Vermont) considered the impact of prior inconsistent...more

1/15/2014 - ADEA Compliance Discrimination EEOC Employer Liability Issues Investigations McDonalds OWBPA Religious Discrimination Undue Hardship

Employee’s criminal conviction affirmed for denying employer’s access to its computer network

A California court of appeal affirmed a criminal conviction of a former employee in The People v. Childs arising out of the employee denying his employer’s access to its own computer systems. Terry Childs worked as a network...more

11/26/2013 - Data Protection Databases Employer Liability Issues

Returning military reservist allowed to invoke USERRA “escalator principle” for failure to reinstate into higher-level job

The federal First Circuit Court of Appeals in Rivera-Melendez v. Pfizer considered a returning veteran’s claim that Pfizer violated the “escalator principle” that is a unique element of the federal Uniformed Services...more

11/25/2013 - Pfizer Reinstatement The Escalator Principal USERRA Veterans

Company allowed to pursue suit against former employee for unfair competition despite absence of trade-secret violation

In Angelica Textile Services, Inc. v. Park, a California court of appeal considered the issue whether Angelica’s common-law claims for breach of contract, unfair competition, and interference with business relations would be...more

11/22/2013 - Breach of Contract Interference Claims Trade Secrets Unfair Competition

Company not required to reinstate temporary employee after FMLA leave of absence where temp agency did not request that employee...

In Cuellar v. Keppel Amfels LLC, the Fifth Circuit Court of Appeals addressed the relatively novel issue of whether a company has an obligation to reinstate a temporary employee returning from FMLA-covered leave. Jessica...more

11/21/2013 - FMLA Leave of Absence Reinstatement Temporary Employees

California Courts Continue to Rule in Favor of Arbitration

California Supreme Court reverses rule that first required administrative hearing by state Labor Commissioner before permitting arbitration of wage and hour claims - In 2011, the California Supreme Court in...more

11/20/2013 - Arbitration Arbitration Agreements Federal Arbitration Act PAGA Wage and Hour

Flurry of New California Employment Statutes Continues

The California Legislature passed and Governor Brown approved the following new statutes impacting California employment law that shortly take effect in 2014....more

11/19/2013 - Compliance Criminal Records Discrimination FEHA Leave of Absence Retaliation

Fenwick Employment Brief - November 2013

Flurry of New California Employment Statutes Continues - The California Legislature passed and Governor Brown approved the following new statutes impacting California employment law that shortly take effect in 2014....more

11/18/2013 - Arbitration Arbitration Agreements Discrimination Employer Liability Issues FEHA FMLA Leave of Absence Misclassification Non-Solicitation Agreements Reinstatement Restrictive Covenants Unfair Competition Unpaid Wages USERRA

Fenwick Employment Brief - September 2013: Wrongful Termination Claims Fail Where Employer Thoroughly Investigated Work...

In Kodwavi v. Intercontinental Hotels Group Resources, Inc., a federal district court in California determined that a hotel employee was not entitled to have his claims of national origin discrimination and retaliation go to...more

9/24/2013 - Discrimination Internal Investigations National Origin Retaliation Termination

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