Civil Procedure Labor & Employment

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Ninth Circuit Addresses When Commuting Time May Be Compensable Under California Labor Code and What Must be Included in a PAGA...

The U.S. Court of Appeals for the Ninth Circuit recently addressed the compensability of commute time under the California Labor Code and the content required in a Private Attorneys General Act of 2004 (PAGA) letter. The...more

PAGA In The News – Ninth Circuit Sides with California Supreme Court On Enforcement of PAGA Waivers and California Amends The...

The Ninth Circuit Decision - Delivering a perhaps unexpected blow to employers, the Ninth Circuit sided with the California Supreme Court earlier this week in upholding the state-court-fashioned Iskanian rule, which...more

Fourth Circuit Grants Review of Use of Statistical Sampling in False Claims Act Case to Prove Liability and Damages

On September 29, 2015, the United States Court of Appeals for the Fourth Circuit agreed to hear on interlocutory appeal the controversial issue of reliance on statistical sampling in a whistle-blower action to prove liability...more

Don’t Throw the Class Waiver Baby Out with the Arbitration Agreement Bathwater

Sound advice that the world has lived with since 1512…until recently flushed by the Ninth Circuit. Not so quick to discard 500 years of wisdom, however, the Supreme Court has agreed to consider whether this idiom will rest in...more

BRING-YOUR-GUN-TO-WORK-DAY? . . . . MAYBE! Swindol v. Aurora Flight Sciences Corporation

Robert Swindol brought his gun to work . . . kind of. He parked his car in the Aurora Flight Services parking lot with his firearm locked inside. Aurora’s mangers learned about the firearm and fired Swindol that day for...more

California Governor Signs Strictest Equal Pay Law in U.S.

Yesterday, October 6, California Governor Jerry Brown signed the California Fair Pay Act, which media observers have called the nation’s most aggressive equal pay law. The Fair Pay Act will be effective January 1, 2016 for...more

HR Influence in Disciplinary Proceedings Can Render Dismissals Unfair

In Ramphal v Department for Transport (EAT – 2015), the EAT has provided guidance on the appropriate level of HR involvement in disciplinary proceedings. The case concerns an employee who was dismissed for gross...more

Supreme Court Denies Stay of DOL’s Home Care Rule

On December 22, 2014, in Home Care Association of America v. Weil, the U.S. District Court for the District of Columbia vacated a key portion of a U.S. Department of Labor (“DOL”) regulation amending the minimum wage and...more

Down The Arbitration Rabbit Hole: Ninth Circuit Refuses To Enforce Employee’s Waiver Of PAGA Claims

On September 28, 2015, the Ninth Circuit held in Shukri Sakkab v. Luxottica Retail North America, Inc. that the FAA does not preempt the rule that the California Supreme Court enunciated in Iskanian v. CLS Transportation that...more

Global Private Equity Newsletter - Fall 2015 Edition: Buyer Beware – Court Lowers Hurdle to Make Claim for Withdrawal Liability...

In Tsareff v. ManWeb Services, Inc., the U.S. Court of Appeals for the Seventh Circuit held that an asset purchaser’s pre-closing knowledge of a seller’s potential multiemployer plan withdrawal liability could be sufficient...more

Cat’s Paw, Part II: “Termination Review” by Independent Decision Makers Can Break the Causal Chain

Last week, we wrote about the “Cat’s Paw” theory of liability —where a person is used unwittingly to accomplish another person’s discriminatory purpose in the workplace. A common example would be when a racist employee...more

California Court Approves Retaliation Protection For Private Police Report

The California Court of Appeal held last week in Cardenas v. M. Fanaian, D.D.S., Inc. that retaliation claims under California Labor Code § 1102.5 need not be based on a report of employer wrongdoing or promote a fundamental...more

Sixth Circuit Reverses Vacatur Of Award Stressing Limited Scope Of Permissible Judicial Review

The district court had vacated an arbitration award that had reinstated a terminated hospital employee under a collective bargaining agreement. The district court based its ruling on its interpretation of the CBA, which it...more

Georgia Wage Garnishments Resume after Revised Order

Nearly one month after Federal Judge Marvin Shoob, of the United States District Court for the Northern District of Georgia, ruled that Georgia's garnishment law is unconstitutional, on Monday, October 5, 2015, Judge Shoob...more

Supreme Court Denies Further Stay of Department of Labor's Home Care Rule; Effective Date is Imminent

On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Department of Labor’s (DOL) Home Care Rule and reversed the lower court’s decisions vacating the new rule. On October 6, 2015, the U.S....more

Home Care Associations Seek Stay by SCOTUS of New Wage-and-Hour Rules, As the Effective Date of DOL Wage-and-Hour Regulations...

Recently, the D.C. Circuit Court of Appeals ruled in Home Care Association of America, et al. v. Weil, that the Department of Labor’s (“DOL”) regulations about the inapplicability of certain statutory exemptions for...more

Commission Federal Sector Appellate Decisions to Use Randomly Generated Names

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today announced a change in the Commission's practices with respect to federal sector appellate decision captions. Beginning on Oct. 1, 2015, all...more

Google’s Strategic Purchase of Rights and Counterclaim Do Not Survive Delaware’s Statute of Limitations - Personalized User Model,...

Addressing the requirements for tolling the statute of limitations (SOL), the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s grant of judgment as a matter of law (JMOL), finding that the district...more

The Ninth Circuit Hammers Out A New Successorship Liability Test Under The MPPAA

The Ninth Circuit, in Resilient Floor Covering Pension Trust Fund Board of Trustees v. Michael’s Floor Covering, Inc., Case No. 12-17675 (9th Cir. Sept. 11, 2015), joined the Seventh Circuit in finding that an asset...more

Sixth Circuit Grants Summary Judgment as to Class, Based on FLSA Agriculture Exemption

Is the saying “fish or cut bait” dead? If you are ever in need of sleep, pull out your copy of the U.S. Code and traipse through the exemptions contained in section 13 of the FLSA, 29 U.S.C. § 213. We’re all familiar with the...more

In Battle Over Employment Compensation, Second Circuit Affirms District Court Decision To Deny Arbitration

On interlocutory appeal, the Second Circuit affirmed a district court decision denying arbitration because a later-signed compensation agreement did not retroactively apply as it contravened the intent of a prior independent...more

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says...

The mere fact that a lawyer prepared an investigation report does not make it privileged, a labour arbitrator has held, granting the union’s request for a subpoena to obtain the report. The Durham Regional Police Association...more

Ninth Circuit Steals a PAGe from California Courts’ Playbook

Since the California Supreme Court’s 2014 ruling in Iskanian v. CLS Transportation that claims under the Private Attorneys General Act (“PAGA”) are not subject to arbitration, California federal district courts have rejected...more

KBR And Maintaining Privilege Throughout Investigations

Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders...more

A Review of Recent Whistleblower Developments

Second Circuit Splits from Fifth Circuit on Whistleblower SEC Reporting Obligations On September 10, 2015, the Second Circuit in Berman v. Neo@Ogilvy LLC, 2015 U.S. App. LEXIS 16071 (2d Cir. 2015), ruled that...more

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