Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics.

Tuesday, September 13, 2022 at 12:30pm ET
Pay Equity & Transparency: Rising Workplace Trends

New York, which has over 9.3 million workers and counting, will soon join other jurisdictions in a growing trend of state and local pay transparency requirements for employers across the country. Currently there are 17 states (and numerous cities) that have laws requiring pay transparency and/or prohibit salary inquiries by current/prospective employers. Additionally, the recent focus on pay equity laws, both state and federal, has served as a catalyst for increased scrutiny by government agencies and resulted in an uptick in related class action lawsuits in recent years.  While transparency is generally a virtue, compliance with the ever-evolving pay transparency and pay equity laws across multiple jurisdictions can create a quagmire of issues in attracting and retaining talent—not to mention the HR and legal landmines.

This webinar will cover:

  • New pay transparency laws
  • Review of pay equity and salary history ban laws
  • Insights on compliance
  • Practical implications for talent acquisition and retention


Continue Reading Complimentary L&E Webinar Series

A few weeks ago, we hinted at the possibility that the United States Supreme Court may overturn parts of the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (Cal. 2014). Our prediction was spot on as the US Supreme Court did just that in a big win for employers.

BACKGROUND

Historically, California employees could avoid their arbitration clauses in part by asserting claims brought under California’s Private Attorney General Act (“PAGA”). PAGA allows employees to stand in the shoes of the State of California to enforce particular Labor Code violations that were – before the enactment of PAGA – only enforceable by the California Labor Workforce Development Agency.

Continue Reading US Supreme Court Overturned CA Supreme Court Decision

Employers use arbitration agreements to avoid costly and protracted litigation. And, in turn, employers can often rely on courts to enforce their arbitration clauses, either dismissing or staying the case pending completion of arbitration. A California-based employee, however, recently convinced the California Courts of Appeal that his arbitration agreement was too unfair to be enforced, and the court agreed. In Nunez v. Cycad Mgmt. LLC (“Nunez”), 77 Cal. App. 5th 276 (Cal. Ct. App. 2022), the California Courts of Appeal held that an employer’s arbitration clause was unconscionable—that is, too unfair—and, as a result, the arbitration clause was invalid and unenforceable.

That decision was rooted in the doctrine of unconscionability. Originally a contract defense, the doctrine unconscionability excuses a party from compliance with a particular contractual provision when that provision both was negotiated in an oppressive manner and would involve an overly harsh or one-sided result. A plaintiff invoking the doctrine of unconscionability must demonstrate both procedural and substantive unconscionability.
Continue Reading California Arbitration Agreements: Greater Hurdles To Enforceability

Courts have little leeway to avoid enforcement of an arbitration clause. Indeed, the United States Supreme Court has spilt much ink reinforcing the power and scope of the Federal Arbitration Act (“FAA”), the legislation requiring that courts compel arbitration of claims subject to an arbitration clause. In California, however, employees can circumvent their arbitration clauses by asserting Private Attorneys General Act (“PAGA”) claims, a loophole that two California Courts of Appeal decisions have recently reinforced. The United States Supreme Court, nonetheless, appears poised to step-in and potentially close this loophole for good.
Continue Reading CA Courts Still Reluctant to Enforce Arbitration Agreements For PAGA Claims

President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.

What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.

What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.

What does the Me Too law say?

The main provision of the law is short enough to reproduce here:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel as they share practical advice for employers looking to keep employees

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.

Continue Reading Managing Your Workforce During COVID-19

With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:


Continue Reading Employer Survival Kit: Coronavirus Edition

On October 13, 2019, California Governor Gavin Newsom signed into law Assembly Bill 51 (“AB 51”).  In a momentous upheaval of existing law, AB 51 prohibits California employers from requiring employees to agree to arbitrate certain disputes as a condition of new or continued employment.  AB 51 also prohibits employers from retaliating against any employee who refuses to agree to arbitration.  AB 51 takes effect January 1, 2020.

AB 51 is one of many bills to pass the desks of California governors since the beginning of the #MeToo movement.  This bill specifically forbids employers from requiring employees to “waive any right, forum, or procedure” for claims arising from the Labor Code or the California Fair Employment and Housing Act (“FEHA”), California’s principal statute outlawing employment and housing discrimination.  While AB 51 is a response to the #MeToo movement, and gained popularity as a measure aimed at bringing to light workplace sexual misconduct, AB 51’s reach is extensive, and touches any mandatory employment agreement which compels arbitration of any claim brought pursuant to the Labor Code or the FEHA.

Continue Reading California Employers Forbidden to Require Employees to Agree to Arbitrate Certain Disputes