Attorney fees not Available in Mixed Motive Retaliation Claims Under Title VII, Seventh Circuit Rules

Under Title VII, in “mixed motive” discrimination cases (i.e., discrimination motivated in part, but not entirely, by an impermissible factor), an employer may limit Plaintiff’s recovery where it can show that it would have made the “same decision,” regardless of the impermissible motive. But the employer may still be compelled to reimburse the plaintiff’s costs and attorney fees. More ›

mployment Contract’s Choice-Of-Law Provision Governs Question of Arbitrability, Court of Appeal Rules

In Harris v. Bingham McCutchen, the California Court of Appeal, Second Appellate District held that the drafter of an adhesion contract could not avoid the contract’s choice-of-law provision in determining the enforceability of an arbitration provision.

Harris sued her employer, alleging it had wrongfully terminated her employment after she requested reasonable accommodations for a disabling sleep disorder. More ›

One-Sided Employment Arbitration Agreement Unconscionable, Court of Appeal Rules

In Compton v. Superior Court, the Court of Appeal, Second Appellate District, ruled that an arbitration agreement that the employer required an employee to sign as a condition of employment was unconscionable — and therefore unenforceable — because its terms were asymmetrical in the extreme, favoring the employer over the employee.

Among other things, the arbitration agreement required the parties to arbitrate common law contract and tort claims, statutory discrimination claims, and claims for violation of statutes and/or regulations. However, the arbitration agreement excluded workers compensation and unemployment benefit claims. It also excluded injunctive or equitable claims arising from alleged unfair competition and trade secret or confidential information disclosures. More ›

Denial of Class Certification as to Alleged wage and hour Violations Affirmed by Court of Appeal

In Daily v. Sears, the Fourth Appellate District, Division One, affirmed the trial court’s granting of the defendant’s motion to preclude class certification.

Plaintiff Dailey was a former employee of Sears, who asserted wage and hour claims individually and on behalf of a proposed class of similarly situated managers and assistant managers.

Dailey argued that Sears uniformly categorized Managers and Assistant Managers as exempt from overtime and meal/rest break requirements, but nonetheless implemented policies that had the effect of requiring the proposed class members to work at least 50 hours per week, spending the majority of their time on nonexempt activities. Sears argued that determining how the class members actually spend their time requires individualized evidence and cannot be proven on a classwide basis. The trial court granted Sears’ motion. More ›

Crowdsourced Workers: Are they Employees or Independent Contractors?

What happens when modern innovations in the workforce (made possible by the advent of the internet) collide with traditional concepts of employment?  You get lawsuits like Christopher Otey v. Crowdflower, Inc., filed late last year in the Northern District of California. More ›

Exhaustion of Leave Under the Pregnancy Disability Leave Law does not Prevent an Employee from Making a Claim Under the FEHA, Court of Appeal Rules

In Sanchez v. Swissport, the California Court of Appeal, Second Appellate District, determined that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), Gov. Code 12945, can also state a cause of action under the California Fair Employment and Housing Act (FEHA), Gov. Code 12900 et seq. More ›

Exotic Dancers are Employees, not Independent Contractors, Kansas Supreme Court Rules

In Milano’s v. Kansas Department of Labor, the Kansas Supreme Court determined that exotic dancers were employees, not independent contractors, for purposes of unemployment insurance.

Milano’s had purchased the club in 2002. In 2004, Milano’s began treating the exotic dancers as independent contractors, rather than employees. The Supreme Court, affirming the rulings of the Court of Appeal, the trial court and Kansas Department of Labor, found that the dancers were, in fact, employees under Kansas law. More ›

You’re Out of Luck, Appellate Court tells Casino Card Dealers

Avidor v. Sutter’s Place, Inc., decided January 23, 2013, California Court of Appeal, Sixth Appellate District, involved a class action brought on behalf of card dealers employed by Sutter’s Place, a casino.

The dispute arose from a practice by which the employer required its dealers to contribute a set amount of the gratuities they received from players to a common account, which was distributed to other casino employees on payday.

Plaintiff alleged that this practice violation California Labor Code section 351, which provide that gratuities are the sole property of the employee or employees to whom they are given, and prohibits an employer from taking the gratuity of an employee or deducting that amount from wages. More ›

Federal Appeals Court Strikes down President Obama’s NLRB Appointments

In a decision that could have an enormous impact on employers, a federal appeals court has ruled that President Barrack Obama violated the Constitution when he appointed three members to the National Labor Relations Board (“NLRB”) without Senate approval.

The unanimous ruling from the three-member panel of the Court of Appeals for the District of Columbia Circuit could invalidate hundreds of NLRB regulations and decisions issued since January 4, 2012. President Obama is expected to appeal the ruling to the Supreme Court. More ›

No Disability Discrimination Where Employee Cannot Competently Perform Job, Ninth Circuit Holds

In Lawler v. Montblac North American LLC, the plaintiff, Cynthia Lawler, a store manager at a boutique retail store, was diagnosed with psoriatic arthritis.  Lawler initiated the action after Defendant employer terminated her employment.

Lawler asserted four claims: (1) disability discrimination, (2) retaliation, (3) harassment, and (4) intentional infliction of emotional distress. The first three causes of action were brought under the California Fair Employment and Housing Act (“FEHA”).

The trial court granted summary judgment for Defendant as to all causes of action, and the Ninth Circuit affirmed. More ›