On July 22, 2019, a three-judge panel for the Ninth Circuit withdrew its holding that Dynamex Operations West, Inc. v. Superior Court—the landmark California Supreme Court decision that makes it harder for companies to rely on independent contractors—applies retroactively. The panel held instead that the question should be decided by the state’s highest court.

Continue Reading

On July 10, 2019, the California Senate Labor Committee voted in favor of Assembly Bill (AB 5). As we previously reported (see HERE), AB 5 would make it harder for companies to rely on independent contractors because it presumes a worker is an employee unless a hiring entity passes a difficult three-part test. Supporters

Historically employers could not restrict labor organizing activity in employer-owned, publicly accessible spaces. But, last month, in UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB reversed nearly 40 years of precedent holding that employers violate the National Labor Relations Act (NLRA) if they prohibit nonemployee labor organizers from publicly-accessible spaces.

Post UPMC, employers may adopt and implement neutral policies regulating the use of employer-owned spaces open to the public (such as cafeterias) and may lawfully apply those policies to exclude nonemployee union organizers. Employers with spaces open to the public should consider whether to adopt and enforce a content neutral (nondiscriminatory) bar to nonemployee solicitation or distribution in the publicly accessible spaces on their property.


Continue Reading

In June, a federal district court in New York ruled that the Federal Arbitration Act (FAA) preempts a recent state law prohibiting mandatory arbitration agreements in sexual harassment cases. Latif v. Morgan Stanley & Co. LLC  marks the first time that a federal court has ruled on this issue.

Continue Reading

Baker McKenzie’s Mike Leggieri and Robin Samuel were recently interviewed on how best to avoid class arbitration in light of the US Supreme Court April 2019 Lamps Plus, Inc. v. Varela decision.

In Lamps Plus, the Supreme Court held that when an arbitration agreement is ambiguous on the availability of class arbitration, courts

While the benefits of arbitration clauses in employment documents with US employees are highly publicized and well known, arbitration clauses with employees outside of the US (OUS) are much less prevalent due to enforceability issues and administrative hurdles.

Unlike in the US, where arbitration can often be quicker, limit opportunities for appeal, and affords greater confidentiality, this is not always the case OUS.


Continue Reading

On June 10, 2019, the United States Supreme Court unanimously held that state law does not apply to the Outer Continental Shelf (OCS) in situations when federal law addresses the relevant issue at hand.

In Parker Drilling Management Services, Ltd. v. Newton, the Supreme Court declined to extend California’s wage and hour laws to employees working on offshore drilling platforms subject to the Outer Continental Shelf Lands Act.

The OCSLA extends federal law to the subsoil and seabed of the outer continental shelf and to all structures permanently or temporarily attached to the seabed for the purpose of developing, producing or exploring for oil. Under the OCSLA, the laws of an adjacent state only apply to the OCS to the extent “they are applicable and not inconsistent with” federal law.

Here, the US Supreme Court ruled that because the federal Fair Labor Standards Act (FLSA) addressed the relevant issues, the adjacent state law was inapplicable.


Continue Reading

Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

  1. Arbitration is a matter of consent, not coercion; and
  2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.


Continue Reading

On April 1, the US Department of Labor proposed a new rule seeking to narrow the application of joint employer status under the Fair Labor Standards Act (FLSA). A finding of joint employer status can impose joint and several liability on a business along with the hiring employer for the employee’s wages. By narrowing the test, the proposal brings potential good news to franchise businesses in particular.

The proposal outlines a “four-factor balancing test” for the Department to apply collectively in its assessment of whether a business is a joint employer with another.


Continue Reading