California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

In Sullivan v. Oracle, No. S170577 (Cal. June 30, 2011) (pdf), the California Supreme Court today resolved three important questions posed by the federal Court of Appeals for the Ninth Circuit regarding California law:

(1) Does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

(2) Does California’s unfair competition law (UCL), Business and Professions Code section 17200, apply to the overtime work described in question one?

(3) Does section 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act (FLSA)?

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In Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (U.S. June 20, 2011), the Supreme Court vacated class certification of a gender discrimination lawsuit brought by 1.5 million current and former Wal-Mart employees because the plaintiffs failed to identify a specific, company-wide policy or practice of discrimination. Additionally, the Court held unanimously that the employees’ backpay claims could not be certified as a class action because Wal-Mart was entitled to individual proceedings so that it could present defenses as to each claim.

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Campbell v. PricewaterhouseCoopers LLP, 2011 WL 2342740 (9th Cir. June 15, 2011) (pdf)

The U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s grant of partial summary judgment in favor of the plaintiff-junior accountants, noting that the district court’s holding would produce “significantly troubling results” and create “highly problematic precedent affecting several non-accounting professions.” The plaintiffs, a class of approximately 2,000 current or former junior accountants resident in six California offices of PricewaterhouseCoopers LLP (“PwC”), claimed that PwC improperly classified them as “exempt” employees and failed to provide them overtime pay in accordance with California’s rigid overtime pay requirements. As “junior accountants,” the plaintiffs occupied the bottom two tiers of their department’s seven-tier hierarchy and performed, among other accounting functions, audits of financial records. While Certified Public Accountant (“CPA”) licenses were required for the five levels above them, the plaintiffs were unlicensed.

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As the federal government wades deeper into the realm of mobile "apps" (among the most useful, of course, the Smithsonian Institution’s “MEanderthal” app, which enables users to morph personal photos into prehistoric images of themselves), various U.S. agencies are promoting new apps that allow the public to access official information from “the palm of [one's] hand.”

Not to be left behind, the U.S. Department of Labor (DOL) recently rolled out a smartphone app to help employees independently track the hours they work. The “DOL-Timesheet,” as the app has been dubbed, is currently available in English and Spanish for use on the iPhone, iPod Touch, and iPad. The app is designed to assist employees in recording their hours worked and calculating the wages – including overtime – that they're owed. (Overtime pay is computed at a rate of one and one-half times the employee’s regular rate for all hours worked each week in excess of 40 – though California also has a daily overtime requirement for hours worked in excess of eight.) Users are currently able to view and email summaries of their logged hours and gross pay, and additional features have been promised, including the ability to track tips, commissions, bonuses, deductions, holiday and weekend pay, shift differentials, and paid time off.

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On Wednesday, June 22, from 12:00 to 1:00 p.m., Anthony Oncidi of Proskauer and plaintiff-side attorney, Andrew Friedman of Helmer Friedman LLP, will summarize the latest developments and discuss the practical implications of this year’s most significant employment decisions. Among other developments, attendees will hear about the new U.S. Supreme Court rulings regarding the “cat’s paw” liability theory (Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)), third-party retaliation claims (Thompson v. North Am. Stainless, LP, 131 S. Ct. 863 (2011)), whether state limitations on arbitration agreements are preempted by federal law (AT&T Mobility v. Concepcion, 2011 WL 1561956 (2011)), and whether an employee who complained orally about a FLSA violation is protected from retaliation (Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)). And, of course, our panelists will cover the latest developments in the ongoing deluge of wage-and-hour cases including new cases holding that the “explicit mutual wage doctrine” barred a janitor’s claim for additional unpaid overtime (Arechiga v. Dolores Press, Inc., 192 Cal. App. 4th 567 (2011). They also will discuss how employees who misuse their employer's computer system to set up a competing business may be in violation of the federal Computer Fraud and Abuse Act (U.S. v. Nosal, 2011 WL 1585600 (9th Cir. 2011)) and the latest from the California courts on whether an allegedly "bi-polar" employee who threatened co-workers can assert a disability discrimination claim once she's been fired (Willis v. Superior Court, 194 Cal. App. 4th 312 (2011)).

The presentation will earn attendees 1 hour of participatory CLE credit. To register, see 2011 Employment Law Update: A Mid-Year Review of Recent Developments or go to http://www.legalspan.com/calbar/catalog.asp and select Tele-Seminars and Webinars.

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