- Tue, 12 Jun 2018 16:25:45 +0000: Employee Bears Burden Trial Proving Available ADA Accommodation - Kingsley and Kingsley
On May 11, 2018, the Ninth Circuit Court of Appeals ruled that the plaintiff, not the employer, maintains the burden of proving the availability of a reasonable accommodation, even if the employer did not take advantage of the interactive process under the Americans with Disabilities Act (ADA). [Snapp v. Burlington Northern Santa Fe Railway Co.] […]
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- Sun, 03 Jun 2018 17:12:03 +0000: ICE to Increase Worksite Investigations This Summer - Kingsley and Kingsley
Form I-9 Audits Have Already Increased Significantly U.S. Immigration and Customs Enforcement (ICE) has already commenced twice as many worksite investigations in 2018 than it completed in all of 2017, according to a recent ICE news release. Since October 2017, Homeland Security Investigations (HSI) has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made […]
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- Tue, 29 May 2018 04:18:28 +0000: EEOC, Estee Lauder Reach Deal Parental Leave Lawsuit - Kingsley and Kingsley
Estée Lauder and EEOC Agree to Settle Sex Discrimination / Parental Leave Case Summary California employers must understand the multitude of laws affecting time off for the birth of and bonding with children. At the federal level, it all started with the Family and Medical Leave Act, or FMLA which provides for 12 weeks of […]
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- Fri, 18 May 2018 04:40:36 +0000: New Classification Test California’s Independent Contractors - Kingsley and Kingsley
Employee or Independent Contractor On Monday, April 30, 2018, the California Supreme Court issued a landmark decision establishing the presumption that a worker is an employee and not an independent contractor in California unless the employer meets a new three-prong test. In Dynamex Operations West Inc., v. The Superior Court of Los Angeles County, the state’s highest court rejected […]
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- Wed, 16 May 2018 17:54:39 +0000: Ninth Circuit Rules on Equal Pay Act Case - Kingsley and Kingsley
Bottom Line While the Equal Pay Act (EPA) permits “a differential based on any other factor other than sex,” the Ninth Circuit Court of Appeals issued an important decision on April 9, 2018 in Rizo v. Yovino, holding that an employee’s prior compensation is not a “factor other than sex.” Specifically, the Court held that […]
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- Arzate v. Bridge Terminal Transport, Inc. sets new light of IC agreements
In a case that just came down today from Division 8 of the Los Angeles Appellate District, the court reversed Judge O’Donnell’s grant of summary judgment in favor of the employer. The facts of the case are straightforward. Plaintiffs were truck drivers who had signed independent contractor agreements. They sought to invalidate those agreements and claim overtime wages and meal break premiums as a class action. The defendant moved for summary judgment which was revered.The court made it clear and reiterated over 22 years of precedent that these types of disputes are fact intensive. While following the six part test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, the court made clear that at least in this case the trier of fact would need to determine if the plaintiffs were employees or independent contractors. They seemed to imply that if even small showings were made on any of the factors that the court might be constrained from granting a summary judgment motion. As such the conservative jurist Elizabeth Grimes who wrote the majority opinion, opined that the case had to be reversed so that a jury could determine these issues. She made it clear that the court was not saying that there were employees but that the summary judgment motion was not the vehicle to determine this, a trial on the merits would need to decide this.This will make IC cases much more difficult to defend by employers and will put much more pressure on defense firms to settle them,. We are currently handling a few such cases on behalf of exotic dancers. We expect trucking cases will also be brought in the future based on this ruling. We can be reached at KingsleyKingsley.com or via email here.
- CA Supreme Court Grants Chipotle
Yesterday, the California Supreme Court issues a grant and hold in the case of Hernandez v. Chipotle. This was another case that dealt with the issue of meal breaks and what standard should be applied to the merits and to class certification motions. There are now a slew of cases that the California Supreme Court has granted and held pending the decision in Brinker v. Superior Court. Brinker has been fully briefed for close to 2 1/2 years with no formal argument date set. The state still waits. There are likely in the neighborhood of hundreds of cases that are awaiting guidance on this issue. Our firm has 7 cases that are stayed by various courts waiting to hear how the court will rule in Brinker. WE expect a decision this year, but there is no way to know for sure. Once the argument is set the court is required to issue a decision within 90 days.
- Kwikset Decesion Due Tomorrow
Tomorrow, the California Supreme Court will issue its decision in Kwikset v. SuperiorCourt. This is a very important decision for consumer cases in California and potentially throughout the United States. In Kwikset the company labeled its lock sets as made in America despite the fact that they were made in China. The California Supreme Court will decide if this gross misrepresentation can form the basis of any harm. It is clear that such practices by companies should not be tolerated and consumers should clearly vote with their feet. The problem, however, is that this is sometimes difficult to verify. Therefore, we are hopeful that the court will allow consumers to pursue remedies for violation of law that harm consumers if not tangibly then intangibly the society as a whole.
- AT&T Case set for Oral Argument on Tuesday
The end of class actions may take place in Washington, D.C. at 10:00 am. EST on Tuesday November 9, 2010. At that time the U.S. Supreme Court will take up the issue of arbitration and pre-emption under federal law. In a recent decision of Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp., the court took a very strong view on the arbitability of class arbitration claims by indicating that silence in an agreement did not give consent to class arbitration. The AT&T case goes much further in that if the AT&T case is reversed it would mean that an arbitration agreement even with a class action waiver or a silent construction would be forced into arbitration on an individual basis. This would mean the end of employment and consumer claims in a real sense. Any savvy corporation would draft these arbitration agreements so that they could only be pursued by way of individual arbitration. With the Republicans in control of the House of Representatives, it would be unlikely for at least two years and perhaps longer for any legislative fix. We should hope that our esteemed jurists Scalia and Thomas who believe strongly in federalism will not impose blanket federal pre-emption to stop California from regulating arbitration agreements.We shall see.
- GSK and JNJ in the 9th Cir.
The 9th Cir. has an opportunity to weigh in on the overtime debate. They were concerned about the fact that a Circuit split could be created with the 2nd Cir. decision in Novartis. The argument was spirited with the DOL arguing on behalf of the reps. The judges focused on the degree of deference they had to give the Department of Labor in its interpretation of the statutory language. While there were comments that could support both sides from all of the judges, it seems to me that they were leaning toward the reps. The judges were fixated on the selling concept in the industry. The lawyers for the reps were clear to point out that the sales occur through the wholesalers and to the pharmacies, this was not satisfying to at last two of the judge. At the end though I think all three judges will adopt the Department of Labor view and give the agency Auer deference and order that overtime should be paid to the reps when they work over 40 hours in a week. A decision could come down in the next few weeks though I would expect it may take several months for a fully elaborated opinion. Check back early next year for updates. If other issues arise in other cases of course we will keep you updated on those as well.The California law firm of Kingsley & Kingsley serves individuals and families in Los Angeles, San Diego, San Francisco, Sacramento, and throughout California. Since 1981, we have been dedicated to helping people across the state who have been harmed by the negligence or wrongdoing of corporate America.