Michael Newman

Michael Newman

Barger & Wolen

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Must Employers Reimburse Employees For Work Calls On Private Cell Phones?

In Cochran v. Schwan’s Home Service, Inc., the California Court of Appeal for the Second Appellate District dealt with the question of whether employers are required to reimburse employees for work-related calls made on their...more

8/14/2014 - Cell Phones Corporate Counsel Mobile Devices Reimbursements

Same Sex Harassment Is Actionable, California Court of Appeal Affirms

In Lewis v. City of Benicia, the First Appellate District affirmed once again that in California, same-sex harassment is actionable. Brian Lewis, a volunteer and later paid intern at the City of Benecia’s water...more

4/1/2014 - FEHA Sexual Harassment

Evidence of Employee Disqualification Is Relevant Regardless of When It Was Learned

In Horne v. International Union of Painters and Allied Trades District Counsel, 16, Plaintiff Raymond Horne, an African American male, applied for organizer positions within the union of which he was a member on two...more

12/10/2013 - Disqualification Evidence FEHA Racial Discrimination Unions

“Familial Status” (Whatever That Means) May Become FEHA’s Newest Protected Category Under SB 404

California employers are well aware that legislators and regulators, both on the state and federal level, have been burning the candle at both ends to generate laws, regulations, and administrative actions designed to hedge...more

11/12/2013 - Compliance Discrimination Family Members FEHA Protected Class Termination

Arbitration Clause In Collective Bargaining Agreement Doesn’t Cover Statutory Claims, Court of Appeal Rules

In Mendez v. Mid-Wilshire Health Care Center, the California Court of Appeal for the Second Appellate District held that the arbitration provision in a collective bargaining agreement governing a plaintiff’s employment did...more

10/29/2013 - Arbitration Collective Bargaining Discrimination FEHA Mandatory Arbitration Clauses Statutory Interpretation

“Locker Room” Talk In All-Male Workplace Sexual Harassment, Fifth Circuit Rules

In this space, we have reported recently on the series of rebuffs that the EEOC has received from various courts in recent months. But in EEOC v. Boh Brothers Construction Company, the Fifth Circuit Court of Appeals handed...more

10/15/2013 - Discrimination EEOC Gender Discrimination Sexual Harassment Sexual Stereotyping Supervisors Title VII

Certification of Meal Break Employment Class Affirmed By Ninth Circuit

In Abdullah v. U.S. Security Associates Inc., the Ninth Circuit held that the district court did not abuse its discretion by certifying a meal break subclass, defined as all past and present employees who (a) worked more than...more

10/1/2013 - Abuse of Discretion Class Action Class Certification Rest and Meal Break Wages

Class Certification Rules Clarified: Harder for Plaintiffs to Certify Classes

On September 3, 2013, in Wang v. Chinese Daily News, Inc., the Ninth Circuit clarified the restrictions on class certification imposed by Wal-Mart Stores, Inc. v. Dukes. The net effect of this ruling is to make it harder for...more

9/10/2013 - Class Action Class Certification Dukes v Wal-Mart FLSA Rule 23

Strippers’ Suit Alleges They Are Employees, Not Independent Contractors

In a purported class action, Jessica Mason et al. v. Fantasy LLC et al., five adult dancers have sued the Fantasy Gentlemen’s Club in Colorado federal court for misclassifying them as independent contractors, alleging they...more

9/4/2013 - Class Action Employee Benefits Full-Time Employees Independent Contractors Unpaid Overtime Wage and Hour

Employers’ Ability To Collect Attorney’s Fees In Wage Cases Restricted by New Bill

On August 26, 2013, California Governor Jerry Brown signed Senate Bill 462 into law, making it harder for employers to obtain attorney’s fees in certain employment wage claim cases....more

8/30/2013 - Attorney's Fees Bad Faith Jerry Brown New Legislation Wages

Employer’s Right to Compel Arbitration, Even Where Demand Is Delayed, Affirmed By Ninth Circuit

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee. The District Court had...more

8/27/2013 - Arbitration Delays Mandatory Arbitration Clauses Motion to Compel Waivers

District Manager Correctly Classified as Independent Contractor … Not an Employee

The California Court of Appeal for the Second Appellate District (Division Three) recently issued its ruling in Beaumont-Jacques v. Farmers Group, Inc., et al., affirming the trial court’s determination on summary judgment...more

7/22/2013 - Full-Time Employees Independent Contractors Insurers Managers

Retaliation Under Title VII Must Be Proven Under Traditional “But For” Causation Doctrine

Where a person seeks compensation for injury resulting from wrongful conduct, there must be a demonstrated connection between the wrong alleged and the injury — i.e., causation. The default rule, developed in connection with...more

7/12/2013 - But For Causation Civil Rights Act Harassment Retaliation Title VII UT Southwestern Medical v Nassar

Attorney Fees Not Available In Mixed Motive Retaliation Claims Under Title VII, Seventh Circuit Rules

Under Title VII, in “mixed motive” discrimination cases (i.e., discrimination motivated in part, but not entirely, by an impermissible factor), an employer may limit Plaintiff’s recovery where it can show that it would have...more

5/8/2013 - Attorney's Fees Discrimination Mixed Motive Cases Retaliation Title VII

Employment Contract’s Choice-Of-Law Provision Governs Question of Arbitrability, Court of Appeal Rules

In Harris v. Bingham McCutchen, the California Court of Appeal, Second Appellate District held that the drafter of an adhesion contract could not avoid the contract’s choice-of-law provision in determining the enforceability...more

4/8/2013 - Appeals Arbitration Choice-of-Law Contract of Adhesion Disability Discrimination Discrimination Employment Contract

Supreme Court Directs Trial Courts To Look At The Merits In Determining Whether To Certify A Class

Comcast v Behrend is the latest in a series of United States Supreme Court cases in recent years that have restricted the ability of plaintiffs to certify federal class actions. In so doing, it has expanded the scope of the...more

4/2/2013 - Class Action Class Certification Comcast Comcast v. Behrend Damages Dukes v Wal-Mart Expert Testimony Rule 23 SCOTUS

One-Sided Employment Arbitration Agreement Unconscionable, Court of Appeal Rules

In Compton v. Superior Court, the Court of Appeal, Second Appellate District, ruled that an arbitration agreement that the employer required an employee to sign as a condition of employment was unconscionable — and therefore...more

4/2/2013 - Arbitration Arbitration Agreements Contract Drafting Unconscionable Contracts

Denial Of Class Certification As To Alleged Wage And Hour Violations Affirmed by Court of Appeal

In Daily v. Sears, the Fourth Appellate District, Division One, affirmed the trial court's granting of the defendant's motion to preclude class certification....more

3/26/2013 - Class Action Class Certification Wage and Hour

Crowdsourced Workers: Are They Employees or Independent Contractors?

What happens when modern innovations in the workforce (made possible by the advent of the internet) collide with traditional concepts of employment? You get lawsuits like Christopher Otey v. Crowdflower, Inc., filed late...more

3/19/2013 - Class Action Crowdsourcing FLSA Independent Contractors Misclassification

DOL Issues ObamaCare Self-Compliance Checklists For Employers

The Department of Labor has issued a “self-compliance tool,” (complete with a handy checklist) to help employers operating group health plans comply with the Affordable Care Act....more

3/12/2013 - Affordable Care Act Compliance DOL Healthcare

Employers Must Give Breast-Feeding Mothers Time And Privacy Under The Affordable Care Act

Under the Affordable Care Act (ObamaCare), an employer is required to provide the following for breast-feeding mothers who are employees...more

3/5/2013 - Affordable Care Act Breastfeeding FLSA Healthcare

Who is an employee and who is an independent contractor under the employer mandate provisions of the Affordable Care Act...

As we have written in this space in the past, whether a worker is an employee or an independent contractor can have many consequences. The classification can determine whether the principal is liable for the negligent acts...more

2/27/2013 - Affordable Care Act Employee Definition Employer Mandates ERISA Full-Time Employees Independent Contractors IRS Misclassification SCOTUS Shared Responsibility Rule

Exhaustion Of Leave Under the Pregnancy Disability Leave Law Does Not Prevent An Employee From Making A Claim Under The FEHA,...

In Sanchez v. Swissport, the California Court of Appeal, Second Appellate District, determined that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), Gov. Code...more

2/26/2013 - Disability Disability Leave FEHA Hiring & Firing Pregnancy Pregnancy Disability Leave Law Reasonable Accommodation

Exotic Dancers Are Employees, Not Independent Contractors, Kansas Supreme Court Rules

In Milano’s v. Kansas Department of Labor, the Kansas Supreme Court determined that exotic dancers were employees, not independent contractors, for purposes of unemployment insurance....more

2/14/2013 - Employee Benefits Hiring & Firing Independent Contractors Misclassification Right to Control Tips Unemployment Insurance

Why Employers Need To Keep Adequate Records

Here is a pattern that tends to repeat itself often in employment litigation. A disgruntled employee sues an employer for discrimination, harassment, or wrongful termination. A lawsuit is filed. And then, the attorney who...more

2/13/2013 - Attorney's Fees Burden of Proof Discrimination Harassment Recordkeeping Requirements Termination Wage and Hour

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