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Arbitration Agreements that Prohibit Class and Collective Actions Violate the National Labor Relations Act

Hunter PyleJune 6, 2016March 13, 2017

A major storm-the biggest in decades- has been brewing for years in the American workplace. At its center is whether employers can require workers to waive their right to bring class, collection, and representative actions. The implications are enormous: As union membership has declined, workers have relied more on litigation to stop companies from breaking the law. If employers succeed in stripping workers of the right to do so, the results will be grim indeed.

Until recently, the field of combat had consisted of, on the workers’ side, the National Labor Relations Board, which held in D.R. Horton that such agreements violate Section 7 of the National Labor Relations Act (NLRA). On the employers’ side is a series Circuit Court decisions, D.R. Horton v. NLRB (5^th Cir. 2013); Owen v. Bristol Care, Inc. (8^th Cir. 2013); Sutherland v. Ernst & Young LLP (2d Cir. 2013); and Richards v. Ernst & Young, LLP (9^th Cir. 2013). Each of those cases, to some degree, rejected the NLRB’s decision in D.R. Horton.

That field shifted dramatically on May 26, 2016. In Lewis v. Epic Systems Corporation, the Court of Appeals for the Seventh Circuit held that an arbitration agreement that prohibited class and collective actions violates Section 7 of the NLRA and was therefore not enforceable. [In a post dated February 2, 2016, I discussed a similar ruling by the Hon. Dolly M. Gee, a courageous federal judge.] As the first Circuit Court to reach this holding, Lewis changed the legal landscape significantly in a manner that benefits workers. Continue reading “Arbitration Agreements that Prohibit Class and Collective Actions Violate the National Labor Relations Act” →

Are Truck Drivers Entitled to Overtime Pay?

Tanya TamblingMay 31, 2016December 22, 2020

Many truck drivers work more than eight hours in a day or more than forty hours in a week. Based on the number of hours they work, are these truck drivers entitled to overtime pay? Maybe. There are several factors that impact whether truck drivers get overtime, such as: 1) the route the trucker is […]

Hunter Pyle to speak about Workers’ Rights at Swiss Conference

Hunter PyleMay 22, 2016March 13, 2017

I will be speaking at two conferences in Lausanne, Switzerland on May 27 and 27, 2016, along with a colleague, Todd Jackson, of Feinberg, Jackson, Worthman & Wasow. We have been invited by a Swiss attorney and law professor, Bettina Kahil. Professor Kahil audited our employment law course at Berkeley Law School in 2015. Continue reading “Hunter Pyle to speak about Workers’ Rights at Swiss Conference” →

Article III Standing and the U.S. Supreme Court

Hunter PyleMay 19, 2016March 13, 2017

One of the big picture struggles playing out in federal courts is how much injury a plaintiff must suffer in order to have standing to sue under Article III of the U.S. Constitution. This issue is important because many laws provide rights to employees that are procedural in nature. For example, California Labor Code section 226 requires companies to provide certain information on an employee’s pay stub. Similarly, California’s Investigative Consumer Reporting Agencies Act (ICRAA) requires that companies give notice before running a background check on an employee. A heightened standing requirement could impact the ability of employees to pursue such claims in federal court. Continue reading “Article III Standing and the U.S. Supreme Court” →

Representative Evidence May Be Used to Prove Class Action Wage Claims

Chad SaundersMay 19, 2016March 13, 2017

In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Standards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages. Continue reading “Representative Evidence May Be Used to Prove Class Action Wage Claims” →

Is Your Employer Required to Provide You With a Seat?

Hunter PyleApril 29, 2016

California employers require many employees to stand all day, despite the fact that they could provide seats if they wanted to. This practice is common in the retail industry, among others. But is it legal?

For certain employees, under certain circumstances, the answer is no. Many of the California wage orders contain language requiring that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” They also provide that “[w]hen employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

When an employer fails to meet either of these requirements, it may be subject to penalties under California’s Private Attorney General Act (“PAGA”). Although the wage orders themselves do not provide for penalties for violating seating requirements, California Labor Code section 1198 prohibits employers from violating the wage orders. PAGA permits employees to bring claims for civil penalties based upon violations of the Labor Code. Therefore, employees can bring PAGA claims for failure to provide suitable seating in violation of the wage orders. Continue reading “Is Your Employer Required to Provide You With a Seat?” →

9th Circuit follows Supreme Court: Paying Off Lead Plaintiffs Doesn’t Moot Class Actions

Hunter PyleApril 26, 2016March 13, 2017

In Chen v. Allstate Insurance Co., the first decision to take up the matter since Campbell-Ewald Co. v. Gomez, the Ninth Circuit has held that a company cannot pick off lead plaintiffs in a class action by paying them a full settlement. This is an important ruling because some companies were attempting to argue that while Campbell-Ewald held that […]

The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?

Hunter PyleApril 25, 2016March 13, 2017

Two questions have bedevilled practitioners representing workers in California ever since the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court in 2012: In a shift that qualifies for two rest breaks and one meal break, are employers required to provide one rest break before the meal break and the other one after? And, on a related note, can an employer combine multiple rest breaks into one long rest break?

In Rodriguez v. E.M.E., Inc. (April 22, 2016), the employees worked eight hour shifts. The defendant provided them with one meal break and one 20 minute rest break that fell either before or after the meal break. The Second District Court of Appeal used this scenario to provide some critical guidance with respect to when and how employers must schedule rest breaks. Continue reading “The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?” →

Is a Public School Teacher Protected by the First Amendment When Communicating with School Administrators or Parents?

Tanya TamblingMarch 25, 2016March 13, 2017

What happens if a public school teacher complains about the administration of a program? Would the teacher’s complaints be protected by the First Amendment? Not necessarily.

The Ninth Circuit Court of Appeals reviewed the district court’s summary judgment in an action brought by a public school teacher who alleged she was wrongfully terminated in violation of her First Amendment rights after voicing concerns about her school’s special education program. (Coomes v. Edmonds Sch. Dist. No. 15, No. 15, 2015 U.S. App. LEXIS 5372 (9th Cir. Wash., Mar. 23, 2016)). Plaintiff contended that her First Amendment rights were violated when the school district took adverse employment actions against her for expressing her views about the treatment of students in a program she managed. The panel affirmed the portion of the decision regarding Plaintiff’s First Amendment claim.

Continue reading “Is a Public School Teacher Protected by the First Amendment When Communicating with School Administrators or Parents?” →

Supreme Court Limits Companies’ Ability to Pick-Off Class Action Plaintiffs

Dan MahoneyMarch 11, 2016March 13, 2017

If a defendant offers to settle a class action plaintiff’s individual claims in full, but the plaintiff rejects the offer, is the class action moot?

In Campbell-Ewald Co. v. Gomez (Case No. 14-857), the plaintiff brought a class action consumer protection lawsuit under the Telephone Consumer Protection Act (TCPA) against a government contractor. Prior to class certification, the defendant extended a settlement offer to the individual named plaintiff which would have provided full relief of the plaintiff’s claims. The plaintiff refused the offer. The defendant argued that the settlement offer mooted the plaintiff’s class action claims because it provided him with complete relief, even though the offer was rejected.

The Supreme Court said no. Continue reading “Supreme Court Limits Companies’ Ability to Pick-Off Class Action Plaintiffs” →