A recent Ninth Circuit ruling that Uber’s arbitration agreements did not violate the National Labor Relations Act provides a major victory to Uber by requiring each plaintiff to separately arbitrate his or her claims.

Christine M. Fitzgerald, writing in the Jackson Lewis California Workplace Law Blog, explains that plaintiffs filed a putative class action against Uber for failure to remit gratuity paid by customers, and for misclassification of the drivers as independent contractors and failing to pay their business expenses. The O’Connor plaintiffs sought an order declaring Uber’s 2013 arbitration agreements unconscionable.

The panel rejected plaintiffs’ argument that the lead plaintiffs constructively opted out of arbitration on behalf of the entire class.

Read the article.

Above the Law reports that women in the Jones Day Business and Tort Litigation group have been “encouraged” to tell management if they were pregnant or planning on becoming pregnant within the next year.

ATL executive editor Elie Mystal writes:

We’re told that partner Stephen Sozio, who is co-leader of the firm’s health care practice and chair of the firm’s litigation department in Cleveland, added that he understood if women who were in their first trimester were uncomfortable talking to him. He encouraged those women to contact his administrative assistant and tell her about their plans.

The women were told that the information would help the group plan its budget.

Read the Above the Law article.

Dan Harris of Harris Bricken, LLP, writing in China Law Blog, updates his earlier discussion of the dangers of relying on China employment contracts that split the salaries of expatriate employees working in China.

He explains that Chinese company employers may hire expats with the promise that they will get paid 30 percent in China and 70 percent in Hong Kong or some other country, and then the worker never gets the 70 percent.

“Both you and them are engaging in tax fraud but all that should matter for you is that you are engaging in tax fraud — assuming your employer actually pays you outside China, which they often do not,” Harris writes.

The takeaway is that a less than fully legal, truly enforceable contract is no contract at all.

Read the article.

The Chicago Tribune tells the story of a former general counsel who had been unemployed and job hunting for three years when he came across a position that seemed promising, but for this part of the ad: “3 to 7 years (no more than 7 years) of relevant legal experience,” it said.

The story of Dale Kleber, who was 58 at the time, illustrates a bigger story of the critical question about whether job applicants can pursue lawsuits at all in such cases, explains reporter Alexia Elejalde-Ruiz.

“The federal Age Discrimination in Employment Act prohibits discrimination against people over 40, but there is dispute about whether Congress intended for the law to protect external job applicants, not just current or former employees, against policies that appear to be neutral but have a disproportionate adverse effect on older people,” she writes.

Kleber’s experience includes a stint as general counsel at Dean Foods and, most recently, as CEO of a dairy products trade group.

Read the Chicago Tribune article.

A federal appeals court Tuesday ruled that Uber can force its drivers into individual arbitration over pay and benefit disputes, voiding an effort by thousands of drivers to join in a class-action suit against the ride-hailing company, according to the Los Angeles Times.

The U.S. 9th Circuit Court of Appeals in San Francisco overturned a lower-court order that had certified the drivers’ class-action effort.

The court’s opinion cited a 5-4 U.S. Supreme Court decision in May that employers could enforce arbitration agreements that require workers to give up the ability to collectively pursue claims that they were shortchanged or treated unfairly.

Read the LA Times article.

Image by NY Photographic

Employers should review and revise their employee non-compete/non-solicitation agreements to decrease the risk that a court holds such agreements to be unenforceable, advises J. Lane Crowder in a web post on the website of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.

“In 2018, there is a growing trend to invalidate non-compete and non-solicitation agreements. State and federal courts, as well as state legislatures, are pushing for enhanced scrutiny of the ‘reasonableness’ of these agreements,” she writes.

Companies should consider the reasonableness of the restrictions and consider whether the restrictions can be tied to legitimate protectable business interests.

Read the article.

Following the abrupt halftime retirement of Buffalo Bills defensive back Vontae Davis, his former agent has confirmed that the decision voids nearly all the guarantees in Davis’ contract. He will only be paid for two games because he was signed in the offseason and his contract only guaranteed the full amount if he played all 16 games.

But Dallas labor and employment attorney Rogge Dunn of Rogge Dunn Group, PC, says that the NFL veteran legally had the freedom to make the move.

“The law does not require a professional athlete or executive to continue working despite an employment contract,” says Dunn. “Surprising as it seems, an NFL football player, a CEO or a partner in a partnership can generally walk off the job at any time. It’s another example of one of the few big hammers that professional athletes have. As we’ve seen many times, players skip organized team activities or hold out during camp – even when they are under contract and facing the financial consequences.”

Carothers DiSante & Freudenberger LLP will present a webinar discussing new developments in California wage and hour laws that provoke class action litigation and will offer ways to avoid, manage and resolve these issues to help minimize the risk of a costly wage and hour class action lawsuit.

The complimentary event will be Sept. 26, 2018, at 10 a.m. PDT.

Employing people in California means dealing with California’s unique and complex wage and hour regulations, the firm points out on its website. California employers are increasingly finding themselves having to defend against costly wage and hour class actions and PAGA lawsuits. These lawsuits frequently cost large sums of money to resolve, either through litigation or settlement.

This webinar will review:

• New developments in California wage and hour laws that have been driving class action litigation
• What you should know about the class action process if you are facing a putative wage and hour class action and/or a PAGA claim
• How to avoid potential class action and PAGA claims and strategies to minimize potential damages
• Drafting arbitration agreements with class action waivers post Epic Systems, Inc.

Register for the webinar.

Image by Patrick

USA Today reports that a class-action lawsuit was filed Monday against IBM on behalf of three former employees alleging age discrimination.

Reporter Swapna Venugopal Ramaswamy explains: “The lawsuit alleges that the plaintiffs are among thousands of IBM employees to be laid off recently as the result of a shift in IBM’s focus to recruit millennials ‘in order to make the face of IBM younger, while at the same time pushing out older employees.'”

“IBM has discriminated, and continues to discriminate, against its older workers, both by laying them off disproportionately to younger workers and by not hiring them for open positions,” the lawsuit alleges.

The three name plaintiffs are 55, 59 and 67, and have worked for IBM for periods ranging from 15 to 34 years.

Read the USA Today article.

A former partner at Manatt has filed a charge with the Equal Employment Opportunity Commission and California’s Department of Fair Employment and Housing, on behalf of herself and those similarly situated alleging gender discrimination and retaliation at the Biglaw firm, reports Above the Law.

Rebecca Torrey’s filing details allegations of a “boys’ club” an environment that weighs “heavily in the favor of male partners.”

Torrey also alleges the compensation structure for partners is dictated by a group hand-selected by outgoing firm managing partner, William Quicksilver, and who rarely challenge his recommendations.

Read the Above the Law article.

The battle between the White House and Omarosa Manigault over the scope of her disclosures brings the issue of Non-Disclosure Agreements (NDA), and their efficacy and enforceability to the forefront, points out a blog post for Obermayer Rebmann Maxwell & Hippel.

“Employers frequently seek to use NDAs as a sword once the employment relationship is broken or a termination takes place,” writes Dove A.E. Burns. “However, employers often require such agreements in order to broadly limit disclosure far beyond what is legally enforceable. Reaching in this manner can lead to legal liability, nullification and an ethical quagmire.”

Her article discusses the law regarding NDAs for government employees and for non=government employees.

Read the article.

Image by Ben Sutherland

JPMorgan Chase has reached a settlement with financial advisers who say they were treated poorly because they’re black, reports Bloomberg News via the Chicago Tribune.

Reporter Max Abelson explains: “Six current and former employees at the largest U.S. bank filed what they asked to be a class action, alleging discrimination that’s ‘uniform and national in scope.’ Instead of fighting it in court, the bank agreed to pay $19.5 million to the members of the class, according to Friday filings. It will also put $4.5 million into a fund that will back recruitment, bias training, a review of branch assignments and a coaching program for black advisers.”

In the settlement, the bank denied any “wrongdoing of any kind whatsoever.”

Read the Bloomberg article.

Holland & Hart will present a complimentary half-day seminar on the latest developments in labor and employment law.

The in-person event will be Thursday, Sept. 13, 2018, beginning with registration and breakfast at 8 a.m. The address is 555 17th Street, Suite 3200, Denver, CO 80202.

Highlights of the program include:

Significant L&E Updates:
– Class action waivers
– Immigration
– NLRB reversals
– Colorado developments

Harassment and Discrimination: #MeToo and More
– Prevention: policies and training
– Investigations
– Working with/against the EEOC and CCRD
– Mediation, arbitration, or litigation?
– Should you settle?

Managing Leaves, Accommodations, and Terminations
– Intersection of FMLA and ADA
– Handling indefinite leaves and work restrictions
– Pregnancy accommodations under the new Colorado law
– Discharging employees who’ve exercised their rights
– Documenting your actions to aid your defense

Agenda: THURSDAY, SEPTEMBER 13, 2018
Registration and Breakfast | 8:00 – 8:30 AM
Presentations | 8:30 – 12:00 PM

Speakers:
Steve Gutierrez
sgutierrez@hollandhart.com

Emily Hobbs-Wright
ehobbswright@hollandhart.com

John Husband
jhusband@hollandhart.com

Jeremy Merkelson
jbmerkelson@hollandhart.com

Roger Tsai
rytsai@hollandhart.com

Mark Wiletsky
mbwiletsky@hollandhart.com

Location: Holland & Hart
555 17th Street
Suite 3200
Denver, CO 80202

CLE and SHRM credit pending

Register for the seminar.

Litigation pitting Morgan Stanley against one of its former sales assistants could have implications for its employees and those of other wirehouses, warns Financial Advisor IQ.

Miriam Rozen explains:

“That will be particularly true if the wirehouse employees receive — but don’t always read — emails sent by their employers to set employment conditions.

“The wirehouse contends that if they’ve sent you an emailed contract, you’ve essentially agreed to the contract just by continuing to work.”

A lower court had ruled that an employment-arbitration agreement between Morgan Stanley and the employee was enforceable, even though the former sales assistant claimed she never read a 2015 email that the wirehouse sent notifying her she would be entered into such a contract.

Read the article.

When operating its business, an employer should consider whether and when to implement employment agreements with certain employees, explains Judy Yi in a post for Polsinelli.

When considering whether an employee should execute an employment agreement, employers should consider five factors.

Yi discusses those five factors, which include complex or specialized compensation, restrictive covenants, employment for a definite term, change in control, and specific post-termination provisions.

Read the article.

Bloomberg Law is reporting that a law partner who sued her firm, Proskauer Rose, for $50 million over allegations of gender discrimination and unequal pay has settled the case.

Details of the settlement between Connie Bertram and the firm weren’t disclosed.

Bertram, who headed the firm’s labor practice in Washington, sued last year, alleging she was underpaid in relation to her male colleagues and that she was excluded from projects after complaining about it, writes Stephanie Russell-Kraft.

Bertram has remained at the firm since filing the lawsuit in May 2017.

Read the Bloomberg Law article.

The practice of “no-poach” agreements in the fast food industry is under scrutiny with a group of Democratic state attorneys-general announcing that they are seeking information on them from eight fast food chains, reports the Wharton School of the University of Pennsylvania.

The chains include Arby’s, Burger King, Dunkin’ Donuts, Wendy’s and Panera Bread.

The legality of non-poaching agreements is suspect, and franchisors take on conveniently conflicting positions when a franchisee is treated as part of their company, said Wharton management professor Peter Cappelli.

Read the article or listen to the podcast.

Bruce “Chip” Morris of Kane Russell Coleman Logan has posted a new podcast in the firm’s Energy Law Today blog about the top 10 mistakes employers can make—in the oilfield, and beyond—when drafting non-compete agreements.

Morris, a director in the firm’s Houston office, is the head of the firm’s Intellectual Property Group.

The 10 mistakes involve such areas as overbroad restrictions, choice of forum clauses, agreements that aren’t appropriate for all employees, and agreements that haven’t kept up with technology.

Listen to the podcast.

An employee invention assignment agreement is a crucial tool for protecting intellectual property, but the laws governing them contain traps for the unwary, warns Jeffrey A. Simmons in Foley & Lardner’s Labor & Employment Law Perspectives.

“If the agreement is too narrow or ambiguous, it may allow inventions to slip away. Further, if the agreement fails to include certain provisions, it may be invalid in certain states,” he explains.

Patentable inventions and copyrightable works are the most significant forms of employee-created intellectual property, but the default rules for those creations are polar opposites, Simmons writes.

Read the article.

The Labor & Employment Law Perspectives blog of Foley & Lardner discusses the increased attention paid to restrictive covenants and the increase in litigation as employers seek to protect their confidential information and prevent a loss of business.

Don Schroeder asks and answers the question: What does this mean if you are considering a new hire who is saddled with an employment agreement that contains non-competition and/or non-solicitation provisions?

“As a threshold matter, you should know that regardless of the states where you operate, if you are faced with litigation by the former employer, the judge assigned to the case will look very closely at your new employee’s pre-hire conduct as he/she exited the former employer,” Schroeder explains.

Read the article.