Labor & Employment Law Blog

In Zullo v. Superior Court, the California Court of Appeal once again struck down an employer-employee arbitration agreement based on the court's conclusion that the arbitration agreement was both procedurally and substantively unconscionable and therefore unenforceable. The decision serves as a reminder to employers that arbitration provisions considered to be overly one-sided in favor of the employer are likely to be struck down by California courts.

Today, the California Court of Appeal held in Brown v. Ralph's Grocery Company that the decision of the trial court denying enforcement of a class action waiver contained in an arbitration agreement between Ralph's Grocery Company and its employees was not supported by substantial evidence but held, also, that a provision of that arbitration agreement barring employees from pursuing claims under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") is unenforceable because, according to that court, the recent decision of  Supreme Court of the United States in AT&T Mobility v. Concepcion, previously discussed here, does not apply to representative actions brought under PAGA. Further, the Court of Appeal remanded the case back to the trial court for a determination of whether the arbitration agreement is enforceable except for the PAGA waiver or is unenforceable in its entirety because of the PAGA waiver.  

The Daily Journal issued today its annual list of leading California Labor and Employment Law attorneys. We are pleased to report that two AALRR attorneys were recognized on this year's list, Nate J. Kowalski, a partner in the Firm's Employer Services Practice Group, and Howard A. Sagaser, also a partner in the Firm's Employer Services Practice Group.

In another of several recent decisions in class action cases issued by California appellate courts, the Second District Court of Appeal last week upheld the denial of class certification in a case brought on behalf of accountants for unpaid overtime. (Soderstedt v. CBIZ, July 7, 2011).  The court found that because the responsibilities of each of the alleged class members differed with their levels of experience, the particular engagements they worked on, the clients and clients’ industries, and the other accountants they worked with, common questions of law and fact did not predominate and the proposed class could not be certified.

The National Law Journal announced today it named Atkinson, Andelson, Loya, Ruud & Romo to The National Law Journal's 2011 Midsize Hot List.  The National Law Journal reports it "settled on 20 firms that demonstrated excellence in the courtroom or boardroom; that spotted a niche that eluded their competitors or that excelled on many fronts . . . firms that clearly stand apart from your everyday law firm."

This week proposed changes in the rules affecting labor relations have come from two federal agencies.

As we previously reported here, on April 26, 2010, in Dukes v. Wal-Mart Stores, Inc., a divided Ninth Circuit Court of Appeals decided 6-5 en banc to affirm the decision of the trial court to grant class certification in a discrimination lawsuit alleging Wal-Mart Stores discriminates against its women employees. The nationwide class is reputed by the Los Angeles Daily Journal to number upward of 1.6 million women employees, which would make the class the largest class in United States history.

MSNBC reports today that a Pennsylvania appellate court affirmed a $187.6 Million verdict against Wal-Mart Stores, Inc., in a class action lawsuit for allegedly denying hourly employees meal and rest breaks. Although the appellate court affirmed the damages verdict, it did order the trial court to recalculate the $45.6 Million award of attorneys fees to the employees' attorneys, indicating the trial court erred by "double-counting" some factors when calculating the attorney's fees award. Click here to read the story. 

As we previously reported here, the National Labor Relations Board (NLRB) issued on May 18, 2011, a press release announcing the NLRB issued a complaint against a non-profit employer for allegedly violating the National Labor Relations Act (NLRA) by terminating five employees who posted on a co-worker's Facebook page comments critical of their working conditions. According to the NLRB's press release," The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels."

As many of our readers know, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.