Take 5: Views You Can Use - October 2011

by Epstein Becker & Green

In This Issue:

1. California Imposes Obligations on Retail and Manufacturing Employers to Evaluate the Risk of Human Trafficking and Slavery in Its Product Supply Chain

On January 1, 2012, the California Transparency in Supply Chains Act of 2010 (the "Act") will go into effect. The Act is codified in California Civil Code § 1714.43. The legislation applies to every retail seller and manufacturer that is doing business in California and has annual worldwide gross receipts in excess of $100 million, even if the company is organized or domiciled outside of California. It is estimated that the Act will impact approximately 3,200 companies....

2. Class and Representative Action Arbitration Agreements and Waivers Remain an Open Issue in California after AT&T Mobility LLC v. Concepcion

In Gentry v. Superior Court, 42 Cal. 4th 443, 450 (2007) ("Gentry"), the California Supreme Court held that class arbitration waivers in employment agreements may not be enforced to preclude class arbitration to pursue overtime claims if the trial court determines that class arbitration would be a significantly more effective than individual arbitration at vindicating rights. This holding effectively terminated California employers' ability to preclude class and representative actions in wage and hour cases through the use of class and representative action arbitration waivers and arbitration agreements. In reaching its decision, the Gentry court relied heavily on the reasoning in Discover Bank v. Superior Court, 36 Cal.4th 148 (2005), where the California Supreme Court held that class action waivers in consumer arbitration agreements were unconscionable in certain circumstances (the "Discover Bank" rule)....

3. Court of Appeal Decision Gives California Employers More Flexibility to Make Pay Arrangements with Non-Exempt Employees

In Arechiga v. Dolores Press, Inc., 192 Cal.App.4th 567, 572-73 (2011) ("Arechiga"), the California Court of Appeal upheld an explicit mutual oral wage agreement that an employee could work 11 hours a day, six days a week for a total of 66 hours per week, at a flat salary of $880.00. This agreement included payment for 26 hours of overtime each week. The employee argued that, because he was a non-exempt employee, Labor Code § 515 governed and his regular hourly rate should have been 1/40th of his weekly salary. The employer, and ultimately the appeals court, disagreed and the appeals court held that California's "explicit mutual wage agreement doctrine" governed. Under this doctrine, the parties may agree to a guaranteed fixed salary as long as the employer pays the employee for all overtime at least one and one-half times the employee's base rate of pay....

4. California Non-Solicits and Overly Expansive Confidentiality Agreements Invite Employer Liability

In 2008, the California Supreme Court decided Edwards v. Arthur Anderson LLP, 44 Cal.4th 937 (2008) ("Edwards"), which signaled the death knell for customer non-solicits in California. The Supreme Court found such clauses to be void and contrary to the public policy of the State under Business & Professions Code ("B&P") § 16600 as contractual restraints on competition. The Supreme Court held that there were no exceptions to B&P § 16600, which renders void "every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind" other than the statutory exceptions set forth in connection with the sale or dissolution of corporations (§ 16601), partnerships (§ 16602), and limited liability corporations (§ 16602.5)...

5. The Ninth Circuit Expands Application of Computer Fraud & Abuse Act

The Computer Fraud & Abuse Act ("CFAA"), 18 U.S. § 1030, is a criminal statute that allows an employer to assert civil claims if an employee accesses a computer without authorization or in excess of authorization, and then takes specific forbidden action, ranging from obtaining information to damaging a computer or computer data. See 18 U.S.C. § 1030(a)(1)-(7) (2004). The CFAA can be a valuable weapon in protecting trade secrets, particularly if it would be tactically advantageous to commence the action in federal court...

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

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.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.