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Entries in class action litigation (3)

Tuesday
Aug302016

The Curious Case of Employment Arbitration Agreements

Lawyer for EmployersLawyer for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

Oh boy, what a year 2016 is shaping up to be! Employers faced some daunting changes to: Sick Leave, California Minimum Wage, the DOL final rule  re salary thresholds and now – class action waivers. We feel like doing a Liz Lemon style “12 month rap wrap up”. But unlike Avery Jessup in 30 Rock, reading some US Weeklies won’t resolve the situation. (If you don’t understand, go watch ”The Return of Avery Jessup”. It’s hilarious!) 

Class Action LawsuitMeanwhile, in the real world, we noticed a trend in California to limit the scope of employment arbitration agreements. Two years ago the California Supreme Court ruled that PAGA (Private Attorneys General Act) representative claim waivers in employment arbitration agreements are unenforceable (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348).

And last year the legislature attempted to pass AB-465 which would have prohibited employers from requiring employees to sign arbitration agreements as a condition of employment. Governor Brown however, vetoed the bill opining, in part, that “[A] blanket ban on mandatory arbitration agreements is a far-reaching approach...”

Last week the Ninth Circuit took part in the “arbitration debate” and held that Class Action Waivers in employment arbitration agreements are unenforceable. In Morris v. Ernst & Young LLP (9th Cir. 8/22/2016) No. 13-16599 plaintiffs brought a class action against the accounting firm Ernst & Young for misclassification,  FLSA (Fair Labor Standards Act) and California labor laws violations.

The professional services firm moved to compel arbitration pursuant to the arbitration agreements signed by plaintiffs, which contained a “concerted action waiver” requiring employees to pursue legal claims against E&Y exclusively through arbitration, and arbitrate only as individuals and in “separate proceedings.”  Plaintiffs argued the class action waiver was unenforceable as it violated the National Labor Relations Act (NLRA).

Section 7 of the NLRA guarantees the right of employees to engage in concerted activities. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the NLRA.

The Ninth Circuit in a majority decision agreed with plaintiffs and sided with the National Labor Relations Board (NLRB) position in Horton I, 357 NLRB No. 184, which held that an employer violates the NLRA “when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial.”

The Majority opined that a lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is “concerted activity” under Section 7 of the NLRA and reasoned that “an employer violates § 8 (...) by conditioning employment on signing a concerted action waiver.” [Emphasis added]. 

Employment ArbitrationWith this decision, the Ninth Circuit teamed up with the Seventh Circuit which recently held that a class action waiver in arbitration agreements was unenforceable as it violated employees’ rights under the NLRA. Other circuits (the Second, the Eighth and the Fifth) held to the contrary, validating class action waivers in employment arbitration agreements. Due to the circuit split, it is likely the matter will be taken up to the U.S. Supreme Court. 

It will be interesting to see how California courts would handle the matter (if at all). Notably, while the California Supreme Court prohibited PAGA waivers in employment arbitration agreements it rejected the argument that class action waivers are unlawful under the NLRA (Iskanian, supra, 59 Cal.4th at 372). “As the Fifth Circuit explained, neither the NLRA’s text nor its legislative history contains a congressional command prohibiting such waivers.” 

Thus, on its face, it appears the California Supreme Court position regarding the enforceability of class action waivers currently differs from the Ninth Circuit’s recent ruling.

To be continued . . .

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Nov202015

Header Rules: Class Action Lawsuit Changes Youth Soccer

Injury AttorneyConcussion Attorney

 

 

by Thomas Cecil

(818) 907-3292

 

 

Recently, the United States Soccer Federation (USSF) and other youth soccer leagues agreed to issue new guidelines, including recommending the banning of “headers” for players under 10, in settlement of a class action lawsuit over concussions brought by parents of several youth soccer players.

Concussion LawyerNational Institute of Mental Health, National Institutes of Health, Department of Health and Human ServicesThe lawsuit arose out of mounting evidence that youth soccer players, especially girls, are at risk of significant brain injury from concussions suffered while playing soccer. According to the lawsuit: “soccer ranks among the top sports in the number of concussions per game. Female soccer players have a higher per-game concussion rate than male players.” 

Unique to soccer is the use of the head to direct the ball towards another player or to the goal, an action known as a header. The plaintiffs contend:

"Headers" can be a violent striking of the ball, sometimes with such violent impact that spectators wince and the sound of the impact carries through the stands. At least 30 percent of concussions in soccer are caused by heading the ball or by attempting to head the ball and colliding with a player, object, or the ground. 

According to the Centers for Disease Control (CDC), a concussion is:

a type of traumatic brain injury—or TBI—caused by a bump, blow, or jolt to the head or by a hit to the body that causes the head and brain to move quickly back and forth. This fast movement can cause the brain to bounce around or twist in the skull, creating chemical changes in the brain and sometimes stretching and damaging the brain cells. 

As stated in its Concussion Information Sheet made available as part of the CDC’s Heads Up Concussion program,

Children and teens who show or report one or more of the signs and symptoms listed below—or simply say they just “don’t feel right” after a bump, blow, or jolt to the head or body—may have a concussion or other serious brain injury. 

The observed behavioral signs include: 

  • Appears dazed or stunned.
  • Forgets an instruction, is confused about an assignment or position, or is unsure of the game, score, or opponent.
  • Moves clumsily.
  • Answers questions slowly.
  • Loses consciousness (even briefly).
  • Shows mood, behavior, or personality changes.
  • Can’t recall events prior to or after a hit or fall. 

Symptoms include: 

  • Headache or “pressure” in head.
  • Nausea or vomiting.
  • Balance problems or dizziness; or double or blurry vision.
  • Bothered by light or noise.
  • Feeling sluggish, hazy, foggy, or groggy.
  • Confusion, or concentration or memory problems.
  • Just not “feeling right,” or “feeling down.” 

Impact of Youth Sports

Scientific evidence shows that the brain of a child or teenager is more vulnerable to long term damage from repetitive concussions, yet youth and high school sports tend not to provide adequate medical supervision. A New York Times health writer states:

The young brain is especially susceptible to concussion, and sports-related concussions account for more than half of all emergency room visits by children aged eight through 13, according to the National Athletic Trainers’ Association. A child who suffers a concussion is one and a half times more likely to experience another, and those who have had two concussions have a threefold greater risk of the same injury happening again.

According to the class action lawsuit, “about half of all high schools have access to an athletic trainer, but very few have an athletic trainer present on the sidelines or on call to help identify concussions during play.” 

Sports Injury AttorneyIn the terms of settlement, the USSF, US Youth Soccer Association (USYSA), and American Youth Soccer Organization (AYSO), among others, will issue new guidance including a recommended ban on headers for U-11 and younger players, and a time limit on heading for U-11 to U-13.

Concussion education for coaches, referees, parents and athletes will be established. Some guidelines will be mandatory – such as the removal of a youth player from practice or a game where the player may have suffered a concussion and the need to follow certain protocols before that player will be allowed to return to play. Return to play and new substitution guidelines are also included in the settlement.

While the results of the class action lawsuit are a step forward in protecting young athletes from serious long term brain injuries, it remains to be seen whether banning heading will appreciably reduce the number of concussions.

Again, from the New York Times:

Among girls, soccer is associated with the highest risk — 6.7 concussions per 10,000 athletic exposures, according to the academy study. Although many focus on the hazards of heading the ball, a new study of high school soccer players found that contact with another player was by far the most frequent cause of concussions among female and male players. 

Excellent helpful concussion resources for youth and high school sports, including brain injury basics and a number of relevant fact sheets for identifying and managing concussions, are found at:

CDC Heads Up

http://www.cdc.gov/headsup/index.html

HEADS UP to Youth Sports: Parents

http://www.cdc.gov/headsup/youthsports/parents.html

Concussion Information Sheet

http://www.cdc.gov/headsup/pdfs/youthsports/parent_athlete_info_sheet-a.pdf

Thomas Cecil is a Brain Injury Attorney and Shareholder at our firm. Contact him via email: tcecil@lewitthackman.com, or by phone: (818) 907-3292.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Feb102015

Employers: CA Court of Appeal Rules On-Duty Rest Breaks Permitted

Lawyer for EmployerClass Action Defense Attorney

 

by Nicole Kamm

818.907.3235

 

 

 

In late January, a California Court of Appeal issued a ruling in Augustus v. ABM Security Services, Inc., overturning a $90 million award against the company because ABM required its security guards to keep their radios and pagers on during rest breaks, remain vigilant, and respond as needed.

Wage and Hour Law California

The ruling came nearly three years after a trial court certified a class of thousands of current and former security guards, and awarded summary judgment to the plaintiffs following a lengthy legal battle. The lower court held California law requires employers to relieve workers of all duty during rest breaks.

The facts of the case were not in dispute: ABM provided – and security guards took – regular rest breaks. 

Plaintiffs alleged, however, the breaks were not compliant with California law because the guards were required to remain “on-call” during rest breaks.  They contended California law requires employees be relieved of all duties during such breaks.

Rest Breaks Distinguished From Meal Breaks

On appeal, the Court held California law only requires employees be relieved of working during rest breaks.  Contrary to meal breaks – which are unpaid time – the law does not require employees be relieved of being on duty or all employer control during paid rest breaks. 

The Court considered the nature of a rest break, and whether being on-call means performing work, and found that it did not. The Court noted ABM security guards engaged in various activities while taking breaks, including surfing the net, making personal phone calls, etc.  "Admittedly, an on-call guard must return to duty if called to do so, but remaining available to work is not the same as actually working.”

As noted above, the Court distinguished the law regarding California’s meal break requirement and that relating to rest breaks.  While meal breaks specifically require employees be “relieved of all duty,” there is no similar language for the provision of rest breaks.

The Appellate Court reiterated that being on-call does not necessarily mean that employee is performing work, and remaining available to work is not the same as actually working

Employer Takeaway

Prior rulings and Department of Labor Standards Enforcement opinions were contradictory as to the extent of control employers could impose on employees during rest breaks. 

This case provides helpful guidance for employers regarding obligations pursuant to California’s rest break requirements.  Pursuant to this case, employers may not require employees to work, but are not required to relieve employees of all duty, during rest breaks.

 

 

Nicole Kamm is an Employer Defense Attorney experienced in wage and hour and other employee class action law suits. Contact her via email: nkamm@lewitthackman.com or by phone: 818.907.3235 for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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