Welcome news for employers: companies can require their workers go through arbitration to pursue any legal claims against their employers, rather than go to court or join together in class lawsuits or grievances, the US Supreme Court held today in a 5-4 vote.

Writing for the majority in three consolidated cases (Epic Systems Corp. v. Lewis, NLRB v.  Murphy Oil  USA, Inc., and Ernst & Young LLP v. Morris), Justice Neil Gorsuch said the Federal Arbitration Act sets a strong policy favoring the enforcement of arbitration agreements, and employees of the three companies failed to show they had any right to disregard the arbitration agreements they signed.

The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.

The ruling means the various companies can enforce their class action waiver agreements and their employees will have to pursue their claims in individual arbitration proceedings. Please stay tuned for more to come from us on the actions employers should take now in response to this important decision.

  With all the discussion around California’s salary history ban, it’s easy to forget that some cities have adopted their own regulations. For companies with operations in San Francisco, it is important to be aware of the city’s salary history ordinance.

Here’s what you need to know:

Continue Reading Quick Reminder Regarding San Francisco’s Salary History Ban (Effective July 1, 2018)

The California Supreme Court’s decision in Brinker v. Superior Court unleashed a flood of single-plaintiff and class-action lawsuits involving alleged violations of California’s meal and rest period laws. Under California law, employees are entitled to take at least one 30-minute uninterrupted, off-duty meal break no later than the end of their 5th hour of work. If employees work over 10 hours, they must be provided a second 30-minute meal period. Similarly, employees must also receive 10-minute rest periods for each 4 hour-period worked or major fraction thereof.

Continue Reading Take A Break To Remember Your Meal And Rest Period Obligations Under California Law

As we previously posted, on January 5, 2018, the Department of Labor did away with its previous six-factor test and announced a new “primary beneficiary” test to determine whether interns and students working for “for-profit” employers are entitled to minimum wages and overtime pay under the Fair Labor Standards Act. See our previous post HERE, as well as the DOL’s Fact Sheet #71 HERE. While employers are required to pay employees for their work, in some circumstances, interns may not actually be employees under the FLSA, and therefore, can be unpaid.

Whether your company is already planning to bring on unpaid interns, or to the extent your company would like to explore the possibility of a new unpaid internship program, you will want to consider the DOL’s new primary beneficiary test so as to guard against potential costly claims for pay and/or overtime.

Please reach out to your Baker McKenzie lawyer for more details.

Baker McKenzie partner Susan Eandi introduces Rowan McKenzie to discuss  employment laws in Hong Kong and give an overview of what changed in 2017, as well as what we can expect in 2018.

Key Takeaways:

  1. Increase in minimum wage – came through in May 2017
  2. Be aware of what right to reinstatement may end up looking like
  3. Cognizant of potential changes in work hours and overtime for low wage earners
  4. Abolition of the Mandatory Provident Fund offset upon termination and any potential relief that may be provided to employers
  5. Staying ahead of potential changes to immigration policy

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Baker McKenzie partner Susan Eandi introduces Chris Burkett from Toronto to talk about employment laws in Canada and give an overview of what’s changed in 2017 as well as what we can expect in 2018.

Key Takeaways:

  1. Employers must review their workplace health and safety policies to ensure that anti-harassment polices are up to date and that training is in place, particularly around sexual harassment.
  2. Review termination clauses in employment agreements to ensure compliance with ESA and clarity of language and intent.
  3. Implement the minimum wage and equal pay obligations that are now in force.
  4. Be proactive in managing the use of cannabis in the workplace, particularly where accommodation requests come into play.
  5. Prepare for expanding supply chain + ESG transparency and global corporate human rights obligations. If operating globally, ensure you have a policy and due diligence program in place to mitigate adverse human rights impacts and lower risk of exposure to human rights lawsuits and reputational damage.

Download now on iTunes | Android | Stitcher | TuneIn | Google Play.

The NLRB’s roller coaster ride that is its joint employer standard took another sharp turn Monday, when the Board unanimously agreed to vacate its recent employer-friendly joint employer decision and to restore the joint employer standard adopted in Browning-Ferris.

Continue Reading NLRB Vacates Employer-Friendly Joint Employer Decision Over Conflict Of Interest Concerns

On February 8, 2018, in what is believed to be the first time a gig economy case has been fully decided on the merits, a California federal judge ruled in favored in favor of the company and held that the delivery driver was properly classified as an independent contractor.

The opinion of US Magistrate Judge Jacqueline Scott Corley states that “[a]fter considering all of the Borello factors as a whole in light of the trial record, the Court finds that Grubhub has satisfied its burden of showing that Mr. Lawson was properly classified as an independent contractor.”

In rejecting the driver’s claim that he was actually an employee entitled to minimum wage, overtime and other benefits associated with employee status, the Court awarded the gig economy a significant victory.

Continue Reading Score One For The Gig Economy: California Federal Judge Upholds Independent Contractor Status Of Grubhub Delivery Driver

In our latest podcast, Baker McKenzie partner Joe Deng introduces Tomohisa Muranushi to discuss employment laws in Japan and give an overview of what changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. Reduce excessive overtime
  2. Encourage greater female participation
  3. Watch out for developments regarding fixed term contracts

Download now on iTunes | Android | Stitcher | TuneInGoogle Play.

We are pleased to report that a California federal judge put to rest claims by a proposed class of Kiewit Infrastructure West Co. workers that they weren’t given adequate meal breaks and rest periods, saying the company was exempted from liability by a valid collective bargaining agreement.

In reconsidering a portion of his November ruling that granted the construction and engineering services provider partial summary judgment over various wage and hour claims brought by lead plaintiff Peter Zayerz under the California Labor Code, Judge Gutierrez acknowledged he had mistakenly failed to consider in his earlier decision whether the company was exempt from liability for the meal and rest period claims by a collective bargaining agreement that was in place between 2012 and 2015, the time period in which Zayerz’s claims arose.

“The court concedes that it failed to consider a material issue of law in its prior order, namely that the governing CBA exempts defendant from liability under the labor code for the meal and rest period claims,” Judge Gutierrez said.

With that, Judge Gutierrez awarded Kiewit summary judgment on all remaining claims and closed the case. Kiewit is represented by our own Arthur J. Rooney, Todd K. Boyer, Benjamin R. Buchwalter, Alexis Hawley and Melissa Logan.

The case is Peter Zayerz v. Kiewit Infrastructure West Co. et al., case number 2:16-cv-06405, in the U.S. District Court for the Central District of California.

Find the write-up in Law360 HERE.