Fenwick Employment Brief - July 13, 2011


In this issue: Recent Federal Cases in California Limiting Wage and Hour Class Actions; Confidentiality Provisions in Employment Agreement Violates Employee Concerted Activity Rights Under NLRA; Denny’s Restaurant To Pay $1.3 Million For Strictly Applying Maximum Medical Leave Policy And Alleged Disability Bias; References To Monkeys, Stray Remarks, And Display Of Confederate Flag On Coworkers’ Clothing Insufficient To Proceed With Title VII Race Claim; NLRB Announces Proposed Rules To Expedite Union Elections; Connecticut Becomes First State To Mandate Paid Sick Leave; Same-Sex Sexual Harassment Claims Fail Because Harassment Was Not Based On Sex; The Happiest Place On Earth? Disney Privacy Class Action; and New OFCCP Directive To Govern Functional Affirmative Action Programs.

Excerpt From 'Recent Federal Cases':

A series of recent cases demonstrate a growing tendency among federal courts in the Northern District of California towards greater scrutiny and limitation of wage and hour class actions. For example, in Lu v. AT&T Services, Inc., the federal court upheld a clause in a severance agreement barring plaintiff, a former employee, from participating in or initiating any Fair Labor Standards Act (“FLSA”) collective action, or any individual or class actions under the California Labor Code or other state laws, against his former employer, AT&T.

Lu filed an action against AT&T under the FLSA, and on behalf of himself and a class under California wage and hour law, for unpaid wages, unpaid overtime, and various wage-related claims. AT&T filed a motion to dismiss the lawsuit, asserting that a waiver of Lu’s claims (signed in his severance agreement) barred him from pursuing the lawsuit. Lu opposed, claiming that the FLSA collective action waiver violated public policy, and was unconscionable and unenforceable. The court held that, although an employee’s rights under the FLSA generally cannot be waived, this restriction only applies to the employee’s substantive (not procedural) rights, and the right to bring a collective action under the FLSA was a procedural right.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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