New FLSA Decision Sheds Light On Employee “Off-The-Clock” Claims

New FLSA Decision Sheds Light On Employee “Off-The-Clock” Claims

Over the past decade, employers have been daunted with increased litigation, including overtime cases filed under the Fair Labor and Standards Act (“FLSA”).  Indeed, in the 2016 Fiscal Year, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor determined that there were violations in 10,884 FLSA overtime cases (84% of cases) with $171,917,225 in back wages owed.  This is an increase from the 2015 Fiscal Year where the WHD determined there were violations in 10,496 FLSA overtime cases (78% of cases) and $137,701,703 in back wages owed.

Aug 17, 2017 Client Update

LCW Attorneys Lead Agency to Victory in Race Discrimination and Retaliation Case

San Francisco partner Suzanne Solomon and associate attorney Juliana Kresse obtained a complete summary judgment of all claims by a former employee of the California Public Utilities Commission who alleged that he was terminated from his employment because of his race and retaliation for his alleged whistleblowing. The employee had worked for the Commission for seven years.  During that period, the employee had refused to follow instructions, did incomplete and poor quality work, and made false and threatening statements to co-workers.  His performance did not improve after counseling and progressive discipline, and he was ultimately terminated.  The court granted summary judgment in favor of the Commission and dismissed the entire action.  The court found that the employee did not provide sufficient evidence that he was performing satisfactorily or that he was treated less favorably than any employees of a different race who engaged in similar conduct.  The employee’s retaliation claim failed because the Commission had legitimate, non-retaliatory reasons for his termination, that were based on his conduct that occurred over a period of years and before his alleged protected activity.   

Aug 17, 2017 Client Update

Sexual Orientation Claim Survives Summary Judgment Because of Comments About Personal Appearance

Joseph Husman was a 14-year, openly gay employee of Toyota before he was fired from his executive-level management position.  Husman sued Toyota, for violation of the Fair Employment and Housing Act (FEHA), claiming that the company discriminated against him because of his sexual orientation and retaliated against him because he criticized Toyota’s commitment to diversity.  On the employer’s motion for summary judgment, the court allowed Husman’s discrimination lawsuit to proceed but dismissed his retaliation claim. 

Aug 17, 2017 Client Update

PERB Finds Union Factfinding Request Untimely

PERB addressed for the first time whether a union that declares an impasse but fails to timely request factfinding, may still timely request fact-finding if the employer has not imposed its last, best and final offer and negotiations have continued. PERB confirmed that in this scenario, the union’s request for fact-finding was untimely. The City of Watsonville, the Watsonville Police Officers Association and Watsonville Public Safety Mid-Management Union (“Unions”) were meeting and conferring over successor memoranda of understanding (“MOUs”) but were unable to reach an agreement.  The Unions provided the City with a written declaration of impasse for the first time on June 1, 2015, and PERB appointed a mediator on June 9, 2015.  On August 5, 2015, the Unions requested fact-finding but withdrew the request prior to receiving a ruling from PERB.  At that time, the City maintained the status quo but did not unilaterally impose its last, best, final offer. Rather, the parties continued to meet and confer and exchange proposals through November 2015 and February 2016 but failed to reach an agreement. The Unions then declared impasse again and requested PERB fact-finding a second time on July 7, 2016.  

Aug 17, 2017 Client Update

Union Representation Allowed During Interactive Process Upon Request

The Public Employment Relations Board (PERB) found that employees covered by the Trial Court Act have a right to Union representation during an “interactive process” meeting with their employer – a meeting to determine whether the employer can provide the employee with a reasonable accommodation of the employee’s disability.  An employer may be required to hold interactive process meetings to fulfill its obligations under California’s Fair Employment and Housing Act, a statute enforced by the Department of Fair Employment and Housing.

Aug 17, 2017 Client Update

Charter City Cannot Abridge Employees' Rights to Participate in Sympathy Strikes

The Public Employment Relations Board recently confirmed that public sector employee organizations enjoy a right to engage in sympathy strikes under the MMBA that cannot be abridged by local rules adopted by a charter city. 

Aug 17, 2017 Client Update

No Disclosure of Brady List to Prosecutors Absent Compliance with Pitchess Statutes, but Agency May Transfer Officers or Change Officer Duties for Non-Punitive Purposes

The California Court of Appeal held, among other things, that the Los Angeles County Sheriff’s Department (LASD) was prohibited from sharing with prosecutors the names of deputies on its “Brady list”, absent a court order after a Pitchess motion.  A Brady list contains the names of officers whose personnel file likely contains evidence of dishonesty or bias that could be used to impeach the officer. The Court also found, however, that a law enforcement agency may transfer or change the duties of an officer on a Brady list to compensate for the officer’s reduced credibility if allegations of the officer’s misconduct are disclosed.