Dartmouth Basketball Unionization and What’s Next

March 21, 2024Samuel Rose Leave a comment

By: Samuel Rose

As March Madness officially begins in college basketball, it seems like the perfect opportunity to discuss the recent unionization buzz amongst college basketball athletes.

Background

College athletes have attempted to unionize before. On March 26, 2014, the Regional Director of the Chicago District of the NLRB ruled that Northwestern University scholarship football players were employees under the National Labor Relations Act (the “Act”) and directed an election to take place. The players held a secret election, the results of which remained under seal while Northwestern appealed the decision to the full Board. On August 17, 2015, the Board dismissed the players’ petition, finding “that it [would] not effectuate the policies of the Act to assert jurisdiction in this case,” predominantly because public universities are not subject to the Act. The Board never ruled on the merits of whether the players were employees. Continue reading →

California Supreme Court Resolves Split Among Courts of Appeal, Finding Trial Courts Do Not Have the “Inherent Authority” to Strike a PAGA Claim Based on Manageability

February 12, 2024February 12, 2024Samuel Rose Leave a comment

By Andrea Chavez

On January 18, 2024, the California Supreme Court made a significant ruling in the case of Estrada v. Royalty Carpet Mills, Inc., finding that the trial court lacked the inherent authority to dismiss a California’s Private Attorneys General Act (PAGA) claim based on manageability grounds. Manageability considerations are often used in the class action context, but the Supreme Court has now found it has no applicability in the PAGA context.

PAGA provides for civil penalties for various Labor Code violations and authorizes “aggrieved employees,” acting as private attorneys general, to recover those penalties. A PAGA plaintiff will often seek penalties for violations involving aggrieved employees other than the PAGA plaintiff. Civil penalties recovered on a PAGA claim are split between the state and aggrieved employees, with 75 percent going to state labor law enforcement agency and 25 percent going to aggrieved employees.

“Manageability” in this context refers to a Continue reading →

California Court of Appeals Issues New Decisions on Sexual Harassment

ImageDecember 7, 2023Samuel Rose Leave a comment

Sexual harassment in the workplace has been front and center in California this year. In April, we wrote about the landscape of employer liability under California’s FEHA for a supervisor’s sexual harassment after a California Court of Appeals decision seemingly limited the bounds of liability. Earlier this week, the California Court of Appeals issued two new decisions related to sexual harassment in the workplace.

Argueta v. Worldwide Flight Services, Inc.

Continue reading →

EEOC Proposes Updates to Workplace Harassment Guidance

LinkOctober 9, 2023Samuel Rose Leave a comment

The Equal Employment Opportunity Commission (EEOC) has proposed updated guidance for employers on workplace harassment. This article will point out some, but by no means all, of the most significant changes in the proposed guidance. Importantly, these guidance documents, even when final, are not law. Rather, they serve as a roadmap for how the EEOC will enforce the laws it is tasked with enforcing.

The new guidance, which covers a range of topics, incorporates explicit protections for reproductive choices and for LGBTQ+ workers. The guidance includes as sex-based harassment “harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.” It also includes as sex-based harassment “…intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Continue reading →

NLRB Puts the Microscope on Employee Handbooks

August 10, 2023Samuel Rose Leave a comment

By: Samuel Rose

Recently, the National Labor Relations Board (NLRB) issued its decision in Stericycle Inc., which changes the analysis for evaluating work rules challenged under Section 8(a)(1) of the National Labor Relations Act (NLRA).

In order to fully understand the impact of this decision, we must go back to some prior decisions by the NLRB in order to analyze how the law in this area has evolved.

In 2004, the NLRB issued its decision in Lutheran Heritage Village-Livonia, which held that “employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities if the rules would be ‘reasonably construed’ by an employee to prohibit the exercise of NLRA rights.” Continue reading →

The Story That Just Won’t End: Employment Arbitration Agreements

July 27, 2023July 27, 2023Samuel Rose Leave a comment

Last year, the United States Supreme Court in Viking River decided, in part, that where a valid arbitration agreement existed, individual PAGA claims could be compelled to arbitration and the remaining representative PAGA claims could be dismissed for lack of standing. For the full background on Viking River, our blog article on that decision can be found here.

At the time, we predicted that this would not be the last we heard about PAGA standing because the U.S. Supreme Court left open the possibility that it misunderstood PAGA and that the California courts would have the last word on the subject. Now the California Supreme Court has weighed in on the scope of PAGA standing.

Last week, the California Supreme Court issued its decision in Adolph v. Uber Technologies, Inc. The Court, disagreeing with Viking River, found that PAGA plaintiffs retain standing to pursue representative claims on behalf of aggrieved employees in court, even when their individual claims have been compelled to arbitration. As the final arbiter of what PAGA requires, the California Supreme Court made it clear that PAGA standing “is not affected by enforcement of an agreement to adjudicate a plaintiff’s individual claim in another forum. Arbitrating a PAGA plaintiff’s individual claim does not nullify the fact of the violation or extinguish the plaintiff’s status as an aggrieved employee.”

Continue reading →

NLRB Throws Its Hat Into the Non-Compete Provision Conversation

June 8, 2023June 23, 2023Samuel Rose Leave a comment

By Samuel S. Rose

On May 30, 2023, Jennifer Abruzzo, General Counsel at the National Labor Relations Board (NLRB), issued Memorandum GC 23-08 regarding Non-Compete Agreements. While the guidance memo is not law, it provides employers with context for the NLRB’s enforcement position and future policy decisions. This is the latest development on the issue of non-competes, with the FTC already considering a rule that would essentially prevent employers from entering into non-compete agreements with employees.

What Does the Memo Say? Continue reading →

The Current Landscape of Employer Liability for Supervisor Sexual Harassment under California’s FEHA

April 13, 2023April 13, 2023Samuel Rose Leave a comment

By Samuel S. Rose

The California Court of Appeal has once again weighed in on employer liability for a supervisor’s sexual harassment under the California Fair Employment and Housing Act through its decision in Atalla v. Rite Aid Corporation (2023) 89 Cal.App.5^th 294.

In Atalla, Plaintiff and a district manager for Rite Aid had developed a years-long friendship prior to Plaintiff joining Rite Aid as a staff pharmacist. The friendship began in 2017 and Plaintiff began employment at Rite Aid in 2018. The district manager supervised staff pharmacists. Plaintiff and the district manager had frequently and consistently engaged in conversation over text message regarding a variety of topics, including vacations, family, personal matters, and work.

In 2019, during a late-night text message conversation, the district manager sent an inappropriate photo to Plaintiff. The district manager sent a text message about being drunk and that he meant to send the photo to his wife. Plaintiff deleted the photo and the text. The district manager then sent another inappropriate photo and Plaintiff sent a text asking him to stop.

The trial court granted Rite Aid’s summary judgment motion. In affirming the trial court’s ruling, the Court noted that Plaintiff did not raise a triable issue of fact that the district manager was acting as a supervisor during the text exchange. The Court noted that Plaintiff and the district manager had a prior texting relationship, and the photos were sent as a result of that personal relationship. It also pointed out that the texts occurred outside of the workplace and well after working hours.

The Court notes that its decision is consistent with the current landscape of the law on point. It points to the following four cases, which we have listed with a brief discussion of their facts and holdings. Continue reading →

CA Laws Take Aim at Sexual Assault and Human Trafficking

December 1, 2022December 9, 2022Samuel Rose Leave a comment

Sexual assault and human trafficking was one of the top issues for the California Legislature and Governor Gavin Newsom in the most recent legislative session. At least six (6) bills will go into effect in 2023 that relate in various ways to sexual assault and human trafficking. While some of the new bills apply generally (including to employers), many of them are industry-specific (i.e. hotels, cosmetology, barbering, etc.) Below is a summary of some of the laws that will soon be going into effect.

Human Trafficking

AB 1788

AB 1788 allows for a civil penalty to be imposed against a hotel if a supervisor knew of or acted with reckless disregard of activity constituting sex trafficking within the hotel and failed to inform law enforcement. It would also allow for such penalties if the supervisor was acting within the scope of employment and benefited from participating in a venture that the employee knew or should have known constituted sex trafficking.

The penalties can range from $1,000 to $10,000, depending on the number of violations in a calendar year. Continue reading →

California Confirms Meal and Rest Period Claims are a Hook for Attorney’s Fees Awards

September 23, 2022Samuel Rose Leave a comment

By Samuel Rose and Megan Shaked

A few months ago, we wrote a blog article on the California Supreme Court’s decision in Naranjo v. Spectrum Security Services, Inc., which held that premium pay for meal and rest break violations is considered “wages,” paving the way to award waiting time and wage statement penalties based on meal/rest period violations alone. We noted that the practical impact of the Naranjo decision could be to encourage class action and PAGA (Labor Code Private Attorneys General Act) litigation within California by providing further remedies in meal and rest period litigation and inflating the settlement value of these cases.

Now, we are starting to see the real impacts of the Naranjo decision. The California Court of Appeal has issued its decision in Betancourt v. OS Restaurant Services, LLC after remand from the Supreme Court with instructions to reconsider its initial opinion in light of Naranjo. Originally, the Court of Appeal decided in Betancourt that, based on Kirby v. Inmoos Fire Protection, Inc. (2012) 53 Cal.4^th 1244, an action brought for failure to provide meal and rest breaks is not based on nonpayment of wages. That meant that the Plaintiff could not recover for waiting time penalties and wage statement violations, and that the Plaintiff could not recover attorney fees under Labor Code section 218.5(a).

In applying Naranjo, the Court of Appeal in Betancourt had to reverse course, confirming that Continue reading →