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January 22, 2014 Los Angeles, California Sponsored by Jackson Lewis P.C. Moderator: Kristi Ashman

Employment Law Update WHERE WE’VE BEEN… AND WHERE WE’RE GOING: A look back at 2013 and a look forward to 2014. January 22, 2014 Los Angeles, California Sponsored by Jackson Lewis P.C. Moderator: Kristi Ashman Panelists: Elisabeth Lilly, Mindy S. Novick , and Adam Y. Siegel. #IHCC12.

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January 22, 2014 Los Angeles, California Sponsored by Jackson Lewis P.C. Moderator: Kristi Ashman

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  1. Employment Law Update WHERE WE’VE BEEN… AND WHERE WE’RE GOING:A look back at 2013 and a look forward to 2014 January 22, 2014 Los Angeles, California Sponsored by Jackson Lewis P.C. Moderator: Kristi Ashman Panelists: Elisabeth Lilly, Mindy S. Novick, and Adam Y. Siegel #IHCC12

  2. Panelists • Kristi Ashman • BakerCorp/Assistant General Counsel • kashman@bakercorp.com • Elisabeth B. Lilly • Northrop Grumman/Senior Counsel • elisabeth.lilly@ngc.com • Mindy S. Novick • Jackson Lewis P.C./Shareholder • novickm@jacksonlewis.com • Adam Y. Siegel • Jackson Lewis P.C./Shareholder • siegela@jacksonlewis.com

  3. Agenda • The Year In Review • California Cases • Federal Cases • What To Expect In The Year Ahead • California Pending Cases • California Statutes For 2014 • Federal Outlook

  4. Agenda The Year In Review: California Cases

  5. Harris v. City of Santa Monica 56 Cal.4th 203 • Does the “mixed motive” defense apply to employment discrimination claims under FEHA? • Yes: To establish liability employee must show unlawful discrimination was a substantial factor motivating the adverse employment decision, instead of simply a motivating factor. • If employer proves it would have made the same adverse employment decision absent such discrimination: • Employee prevails but • Employee recovers nothing • But employee’s attorneys fees will be paid by employer

  6. Sonic-Calabasas A, Inc. v. Morena (Sonic 1)51 Cal.4th 659 (9/2013) • CA Supreme Court held: • (1) it is against public policy and unconscionable to require employee to waive right to a Berman hearing and • (2) rule is not preempted by FAA. • US Supreme Court granted cert., vacated and remanded to CA Supreme Court for further consideration in light of AT&T Mobility LLC v. Concepcion.

  7. Sonic-Calabasas A, Inc. v. Morena (Sonic 2)2013 Cal. LEXIS 10220 (10/17/2013) • After remand to CA Supreme Court • FAA preempts state-law rule categorically requiring Berman hearing before arbitration • Unconscionability – procedural or substantive - remains a viable contract defense; not preempted by FAA • Rule that does not discriminate against arbitration on its face “must not disfavor arbitration as applied by imposing procedural requirements that interfere[] with fundamental attributes of arbitration….”

  8. Yanez v. Plummer 213 Cal.App.4th 1331 (11/5/2013) • Joint representation of company and employee witness for deposition by in-house counsel • Possibility of conflicting testimony exists but is not explained to employee – no joint rep letter • Examination at deposition by plaintiff does not expose a conflict • Company attorney at deposition asks questions that calls the credibility of witness into question

  9. Happy Nails & Spa v. Su, as Labor Commissioner 217 Cal. App. 4th 1459 (7/19/13) • Issue: Does Unemployment Insurance Appeals Board decision that plaintiffs are not employees collaterally estop the Labor Commissioner from assessing penalties for inaccurate wage statements? • Yes.

  10. Williams v. Sup. Ct. (Allstate Ins. Co.)___ Cal.App.4th ___, B244043 (12/6/2013) • Trial court certified “off-the clock” class • Rehearing based on Dukes v. Wal-Mart - trial court decertified class • Plaintiffs appealed to CA Supreme Court • court granted review and returned case to appellate court with directions to issue OSC why class should be certified • Holding on remand: writ of mandate to trial court to vacate decertification and re-instate class certification

  11. Benton v. Telecom Network Specialists, Inc. B242441, ___ CA4th ___ (10/16/2013) • Plaintiff filed complaint against Defendant (staffing agency) alleging failure to provide meal and rest breaks, failure to pay overtime • Plaintiff alleged a common practice was the failure to adopt and implement policies in compliance with Labor Code • Trial court denied class certification relying on Brinker • Reversed and remanded for consideration of class certification • Defendant filed motion for re-hearing; fully briefed

  12. Purton v. Marriott International 218 Cal.App.4th 499 (7/31/2013) • Appeal from summary judgment granted in favor of defendant; reversed and remanded for trial • Employee (bartender) became intoxicated at annual holiday party • Employee drove home but then left to drive another employee home • Accident resulted in death of 3rd party • If proximate cause of injury occurred within scope of employment, ER may be held liable

  13. Agenda The Year In Review: Federal Cases

  14. Chavarria v. Ralphs Grocery Co.__ F3d ___ (9th Cir. 10/28/2013) • Issue: Is state law preempted by FAA? • No. • Issue: Is arbitration agreement unconscionable under state law? • Yes. Motion to compel arbitration denied. • Procedurally unconscionable – take it or leave, terms not provided until 3 weeks after employee agreed to be bound • Substantively unconscionable – arbitrator selection process unfair, precluded institutional arbitration administrators, arbitrator fee-apportionment provision prohibitive

  15. What To Expect In The Year Ahead • Duran v. US Bank Ass’n • Wage & hour class action • Iskanian v. CLS Transportation • Arbitration agreements in class actions • Ayala v. Antelope Valley Newspapers, Inc. • Independent contractors in class actions • Peabody v. Time Warner Cable (9th Cir.) • Allocation of commission payments • Salas v. Sierra Chemical Co.; Richey v. AutoNation • Defenses available when after-acquired evidence found

  16. Sanchez v. Swissport, Inc.213 Cal.App.4th 1331 (2013)) • Once PDLL expires – does ER have additional obligations? • Employee had high risk pregnancy, required long bed rest. • Employer provided 19 weeks of leave, including vacation days and time off under the PDLL and CFRA. • Employee fired after expiration of PDLL and CFRA. •  Yes. Employer must engage in interactive process and determinate whether further leave is a reasonable accommodation • So, 4 month PDLL is the beginning, not end, of accommodation process for pregnant employees.

  17. Kilby v. CVS Pharmacy, 9th Cir. No. 12-56130, No. S215614Henderson v. JP Morgan, 9th Cir. No. 13-56095, No. S215614 (12/31/13) • Certified questions to CA Supreme Court • (1) Does “nature of the work” refer to specific EE’s tasks or job title’s tasks? • (2) To determine if the nature of work “reasonably permits” the use of a seat, may ER use business judgment? • (3) If employee denied seat, does employee have to prove what would constitute “suitable seats”?

  18. Agenda for 2014 Federal Outlook

  19. Federal Outlook • OFCCP finalizing regulations that will require federal government contractors to move toward a 7% disabled workforce and to hire more veterans. • CRIMINAL BACKGROUND CHECKS: • Employers told to consider: • Nature or gravity of offense or conduct • Time elapsed since offense, conviction, release • Nature of job sought • OFCCP’s Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” issued on January 29, 2013

  20. Agenda for 2014 California Statutes For 2014

  21. California Disability Regulations • Support animals are a reasonable accommodation – and it’s not just dogs! • Definitions now include examples – broad examples – of disabilities and reasonable accommodations • Expands definition of “health care providers to include (M&F therapists, acupuncturists, podiatrists, dentists, clinical psychologists, chiropractors, midwives and PAs)

  22. “Whistleblower” Law, SB 496; eff. 1/1/14 • An employee who complains internally about alleged violation of law or threat to public safety is protected • Before, employee had to make a complaint to an outside agency • What can you expect? A LOT MORE WHISTLEBLOWING SUITS

  23. California Statutes For 2014 • SB 435 Missed “cool down” and “recovery” periods added to missed meal and rest breaks for which denial results in penalty of one hours pay

  24. Significant Take-Aways • Draft arbitration agreements with clarity and certainty • Review current policies to ensure compliance with new or amended statutes • Ensure managerial/supervisory employees are trained on what to do regarding policies, procedures, statutes

  25. Questions?

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