Author: Andrew Friedman

Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City. He received his B.A. from Vanderbilt University and his J.D. from Cornell Law School, where he was an Editor of the Cornell Law Review. He clerked for the Honorable Judge John T. Nixon (U.S. District of Tennessee). He represents individuals and groups of individuals in employment law and consumer rights cases and is author of Litigating Employment Discrimination Cases (James Publishing 2005-2015).
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Supreme Court Allows Statistical Evidence In Class Actions

In Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), a 6-2 opinion written by Justice Kennedy, the Supreme Court took a (small) step back from that draconian anti-class action bulwark – Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541 (2011). The Supreme Court made clear that plaintiffs may use “representative evidence,” not specific as to each individual involved, to show that the group could have had the same legal claim, without having to prove it individually – “a representative or statistical sample, like all evidence, is a means to establish or defend against liability.” It is allowed into a trial, of a class action or other type of case, depending “on the degree to which the evidence is reliable in proving or disproving the elements” of the legal claim at stake, the opinion added. “It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases.”

“In many cases,” according to the Court majority, “a representative sample is ‘the only practicable means to collect and present relevant data’” to prove that the company or entity being sued was legally at fault. The opinion went on to provide some guidance to when such evidence would be allowed into a class action case: that is, when each member of the class could rely on the sample to establish that he would have won the case, if he had filed it individually, rather than along with others.

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Important New California Employment Laws For 2016

California passed a bevy of new employment laws in 2016. Here is a summary of the most important ones.

Minimum Wage Increases (SB 3)

Beginning on January 1, 2017, employers with 26 or more employees will have to pay a minimum wage of $10.50 per hour. This minimum wage rate will gradually increase to $15.00 per hour by 2022 as shown below:

January 1, 2017 – 10.50
January 1, 2018 – 11.00
January 1, 2019 – 12.00
January 1, 2020 – 13.00
January 1, 2021 – 14.00
January 1, 2022 – 15.00
January 1, 2023 – 15.00

Smaller employers (with 25 or fewer employees) will be required to pay the higher minimum wage rates starting in 2018 as shown below:

January 1, 2017 – 10.00
January 1, 2018 – 10.50
January 1, 2019 – 11.00
January 1, 2020 – 12.00
January 1, 2021 – 13.00
January 1, 2022 – 14.00
January 1, 2023 – 15.00

Equal Pay Act Expanded To Cover Race And Ethnicity (SB 1063)

In 2015, the California Legislature enacted and Governor Brown signed Labor Code Section 1197.5 into law which made it the Nation’s most protective equal pay act. Section 1197.5 didn’t just require employers to pay employees of opposite genders equal pay for equal work but, instead, required equal pay for substantially similar work. This year, the Legislature enacted and Governor Brown signed into law amendments to the Equal Pay Act which prohibit wage differences based upon race or ethnicity for substantially similar work when viewed as a composite of skill, effort, responsibility, and performed under similar working conditions.  Exceptions include where the payment is made based on any bona fide factor other than sex/race/ethnicity, such education, training, or experience.

Employers Prohibited From Using An Employee’s Prior Salary To Justify Wage Differences (AB 1676)

Employers often try to justify differences in pay between men and women by explaining that they based the differences on the employees’ prior salaries. This new law prohibits employers from using an employee’s prior salary, by itself, to justify any compensation disparity.

Employer’s Required To Provide Employees With Notice Regarding Domestic Violence, Sexual Assault And Stalking Protections (AB 2337)

California law prohibits employers from terminating or in any other manner discriminating or retaliating against an employee who takes time off from work to address domestic violence, sexual assault, or stalking. This new law mandates that employers must inform each employee of his or her rights established under these laws by providing certain information in writing to new employees upon hire and to other employees upon request.

Settlement Agreements Can No Longer Prevent The Disclosure Of Information Regarding Certain Sex Offenses (AB 1682)

Existing law allows parties to enter into a settlement agreement requiring the nondisclosure of information regarding sex offenses. This new law now prohibits parties from entering into settlement agreements (on or after January 1, 2017) that would prevent the disclosure of factual information that establishes a cause of action for civil damages for a felony sex offense, an act of childhood sexual abuse, an act of sexual exploitation of a minor, or an act of sexual assault against an elder or dependent adult.

Employees Of Temporary Services Employers Must Be Paid Weekly (AB 1311)

Current law (Labor Code Section 201.3) requires that temporary services employers must pay their employees weekly and that a violation of these provisions is punishable as a misdemeanor. This new law extends this weekly pay requirement to security guards employed by those who are both private patrol operators and temporary services employers.

Employers Can Not Ask An Applicant To Disclose Certain Criminal History Information (AB 1843)

Section 432.7 of the Labor Code prohibits employers (both public and private) from asking applicants for employment to disclose, or from utilizing as a factor in determining any condition of employment, information regarding an arrest or detention that did not result in a conviction.  Certain information concerning a referral or participation in any pretrial or post-trial diversion program is also prohibited from disclosure.

This new law now prohibits an employer from asking applicants for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred in juvenile court. In addition, this law provides that “conviction,” as used in the statute, excludes an adjudication by a juvenile court or any other court order or action taken involving a person who is under the jurisdiction of the juvenile court.

Employers Prohibited From Engaging In Certain Unfair Immigration-Related Practices (SB 1001)

Employers are prohibited from: (a) request more or different documents than are required under federal law; (b) refuse to honor documents or work authorization based upon the status or term of status that accompanies the authorization to work; or (c) reinvestigate or reverify an incumbent employee’s authorization to work.  Applicants are authorized to file a complaint with the Division of Labor Standards Enforcement.

California Employees Guaranteed Access To California Law And Forum (SB 1241)

This bill applies to contracts entered into, modified, or extended on or after January 1, 2017 and prohibits an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to adjudicate outside of California a claim (in either litigation or arbitration) arising in California or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. The bill specifies that injunctive relief is available as a remedy and authorizes a court to award reasonable attorney’s fees. The bill exempts a contract with an employee who was represented by legal counsel.

 

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Helmer Friedman LLP Takes Cases To U.S. Supreme Court

Helmer Friedman, Crystal Lightfoot presents case to U.S. Supreme Court. On November 8, 2016, the U.S. Supreme Court heard oral argument in a case Helmer Friedman LLP successfully convinced the high court to hear.  The case — Lightfoot v. Fannie Mae, Cendant Mortgage Corporation case (14-1055) — concerns whether individual homeowners who have been wrongly or fraudulently foreclosed upon by Fannie Mae have the right to sue the mortgage giant in the state courts.

According to the Supreme Court, approximately 7,000-8,000 petitions for a writ of certiorari are filed each Term and the Court grants and hears oral argument in merely 80 of those cases – about 1%.

If you want to check out our petition for a writ of certiorari which got the ball in motion for this oral argument, you can read it here http://www.helmerfriedman.com/docs/Petition-Writ_Crystal-Lightfoot-v-Cendant-Mortgage.pdf

If you care to read all of the documents and commentary about the case,you can check it out here https://www.helmerfriedman.com/us-supreme-court-grants-petition-certiorari/

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Consumer Attorneys Association of Los Angeles Publish Article by Andrew H. Friedman about the Best and Worst Employment Cases of 2015

The June 2016 edition of The Advocate Magazine – published by the Consumer Attorneys Association of Los Angeles – features an article which overviews the “best” and “worst” employment cases (from the perspective of the plaintiff employee). The article covers cases from 2015 (and early 2016) including four opinions from the U.S. Supreme Court — in three of which Justice Scalia surprisingly took the side of the employees. The article can read here – http://www.helmerfriedman.com/docs/Best-Worst-Employment-Law-Cases-June-2016-CAALA.pdf

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“Take this Job and Shove it” – Supreme Court Considers When The Clock Starts to Run on Constructive Discharge Claims

Status of limitation - time is running out - the clock is ticking away.

In Green v. Brennan, 2016 WL 2945236 (U.S. May 23, 2016), the U.S. Supreme Court considered when the clock starts to run on a constructive discharge claim. Before discussing the Supreme Court’s decision, a little background information is in order.

Generally, employees only have limited amounts of time to bring their employment-related claims against their employers. How much time is determined by various laws called “statutes of limitation.” For example, in California, employees have one year to file a complaint of discrimination with the California Department of Fair Employment and Housing (“DFEH”). Then, employees have an additional year from the date of the DFEH’s Right-To-Sue Letter to file a lawsuit in court.

Under California state law, the statutes of limitation on a wrongful termination claim begin to run on actual termination date, rather than the date when employer informs the employee that discharge was inevitable. Romano v. Rockwell Internat., Inc., 14 Cal. 4th 479 (1996). Under federal law, the statutes of limitation begin to run when the employer notifies the employee that his or her employment will be ending. Delaware State Coll. v. Ricks, 449 U.S. 250, 259, 101 S. Ct. 498, 504 (1980).

But, when does the clock begin to run on a constructive discharge claim (a claim that the employer forced the employee to resign)? Say that on November 1st the employee gives her employer two weeks notice that she will be resigning on November 15th. Do the statutes of limitations begin to run on November 1st or November 15th?  In Green v. Brennan, 2016 WL 2945236 (U.S. May 23, 2016), the U.S. Supreme Court examined this very issue. The Supreme Court concluded that the statutes begin to run on the date the employee gives notice of his or her intent to resign (rather than his or her last day of employment).

Green v. Brennan involved a former U.S. Postal Service Employee, Marvin Green, who claimed that he was discriminated against on the basis of his race (African-American).  Green worked for the Postal Service for nearly 35 years. Green complained that he was denied a promotion because of his race. Not surprisingly, following his complaint, his relations with his supervisors crumbled. Relations hit a nadir on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail—a criminal offense. On December 16, 2009, Green and the Postal Service signed an agreement whereby the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post. The agreement gave Green a choice: effective March 31, 2010, he could either retire or report for duty in another location at a considerably lower salary. Green chose to retire. He submitted his resignation to the Postal Service on February 9, 2010, effective March 31.

Eventually, Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint. He alleged that the choice he had been given effectively forced his resignation in violation of Title VII.

Subsequently, Green filed suit in the Federal District Court for the District of Colorado, alleging, inter alia, that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR § 1614.105(a)(1). The District Court granted the Postal Service’s motion for summary judgment. The Tenth Circuit affirmed holding that Green’s claim was time-barred because the date Green signed the settlement agreement was the Postal Service’s last discriminatory act triggering the filing deadline that Green failed to meet.

In a 7-1 decision, the Supreme Court held the time period for filing a constructive discharge claim “begins running only after the employee resigns.”  The Court explained that this means the clock begins to run when the employee gives definite “notice” of his or her resignation, not the date the resignation is effective. In other words, if an employee gives two weeks notice, the clock starts to run on the date of the notice, not two weeks later on the employee’s last day of work.

Employees considering resignation due to intolerable working conditions should consult with employment counsel before submitting their resignation.  The courts have made it very difficult for employees to successfully bring a constructive discharge claim. Employment counsel can help employees properly place their employers on notice as to the intolerable working conditions.