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

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.4th 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

[Webinar] How to Best Ensure ADA Compliance for Your Property’s Website

On Wednesday, September 21, 2022 at 1 p.m. EST, join Jordan B. Schwartz and Megan S. Shaked for a webinar regarding How to Best Ensure ADA Compliance for Your Property’s Website.

Another year has gone by, and yet the lawsuits filed against hotels and other places of public accommodation alleging violations of the Americans with Disabilities Act (“ADA”) continues to increase. We still see hundreds of lawsuits filed each month against hotels for their failure to identify and describe accessible features at their properties in sufficient detail on their websites. Many of these lawsuits continue to allege that Online Travel Agencies (“OTAs”) such Expedia, Hotels.com, or Orbitz fail to provide information about the accessible amenities of the hotel, including its rooms, to individuals with disabilities, or fail to allow an individual with a disability to book an accessible guestroom. While it may seem counterintuitive that a Hotel would be responsible for the information provided on the OTAs website, that often is the case.

A ton of ADA lawsuits also continue to be filed every day alleging that hotel websites cannot be used by individuals with visual or hearing impairments (in particular websites that utilize PDFs). Thus, it is extremely important that businesses ensure the accessibility of their websites while also providing an appropriate “accessibility statement” explaining to users the steps you have taken to improve your website’s accessibility.

During this webinar, participants will learn about: Continue reading

Ninth Circuit Continues to Write the Story of Employment Arbitration Agreements in California

By: Samuel S. Rose

For our readers who are following the ongoing battle over employer arbitration agreements in California, you have probably been following the legal battle over AB 51 (2019), which added section 432.6 to the California Labor Code. When AB 51 was first signed by the governor, we expected that it would be challenged based on preemption by the Federal Arbitration Act. Litigation did ensue and, as we wrote about in this article, the district court issued a preliminary injunction preventing AB 51 from going into effect. Continue reading

What Employers Need to Know About the Monkeypox Virus

On Tuesday, September 6, 2022 at 1 p.m. EST, join Kara M. Maciel, Eric J. Conn and Ashley D. Mitchell for a webinar regarding What Employers Need to Know About the Monkeypox Virus.

On July 23rd, the World Health Organization declared Monkeypox a Public Health Emergency of International Concern. By late July, the U.S. surpassed 10,000 total cases, and the Biden Administration declared it a public health emergency. While the Monkeypox Virus is less transmissible than COVID-19 and rarely fatal in its current form, there are still workplace safety and health considerations employers will have to address.

Participants in this webinar will learn: Continue reading

Preparing for the Virginia Consumer Data Protection Act

Beginning June 1, 2023, the Virginia Consumer Data Protection Act (CDPA) will come into effect for Virginia businesses and consumers.

What is the CDPA?

At its core, the CDPA is a data privacy law intended to provide guardrails on how businesses use and store the data of Virginia consumers. Virginia was the second state to pass a state data privacy law after California’s California Consumer Privacy Act (CCPA).

The CDPA will apply to covered businesses that conduct business in Virginia or affect Virginia commerce through targeting products and/or services to Virginia residents.  For the CDPA to apply to a company, it must either:

  • Control or process the personal data of at least 100,000 consumers during a calendar year; or
  • Process the personal data of at least 25,000 consumers and derive more than 50 percent of their gross revenue from selling personal data.

Personal data in this context includes “any information that is linked or reasonably linkable to an identified or identifiable natural person.”

What are the CDPA requirements?

The CDPA draws on concepts from the California Privacy Rights Act, CCPA, and the General Data Protection Regulation (GDPR) by establishing consumer rights relating to Privacy.

The main areas of the CDPA that businesses should prepare for are as follows:

Continue reading

CMC Spotlight Series – Meet Ashley D. Mitchell!

As an Associate in Conn Maciel Carey LLP’s Chicago office, Ashley D. Mitchell supports both the OSHA and Labor and Employment practice groups. She represents and advises clients in employer-employee relationship issues, including wage and hour disputes, Title VII discrimination claims, compliance with the Americans with Disabilities Act (ADA), workplace policies and procedures, harassment training, and employee handbooks.

In support of the OSHA • Workplace Safety Practice Group, Ashley represents employers during federal OSHA and State OSH Plan inspections and investigations. She also guides clients in responding to workplace safety complaints and litigates contests of OSHA citations.

Ashley brings valuable experience in employee-side employment litigation. Prior to joining the firm, she interned at the Chicago Park District’s Law Department as a Student Attorney. While at the Domestic Violence & Immigration Clinic, she guided clients through the U-Visa application process.

In 2018, Ashley received her J.D. from the University of Illinois College of Law. She also has a B.A. in Government, cum laude, from Georgetown University.

In her spare time, she volunteers by tutoring students preparing for the bar exam.

Get to Know Ashley!

Where is your favorite vacation spot?  

My favorite vacation spot is Cancún. It was my first international vacation and since then, I’ve been several times with family and friends. While I’ve been several times, I’ve never repeated an experience. You can relax, shop, ride an ATV, or explore the culture. Whatever you’re looking for, it’s there—adventure, rest, learning something new.

It’s also a chance for me to practice my Spanish. I often say that I’m proficient in Spanish, not fluent because I learned in academia, so I speak more like an academic than a native speaker. Vacations to Cancún are a great opportunity for me to practice. Keeping up my Spanish language skills is incredibly important to me. My ability to speak Spanish afforded me the opportunity to represent Spanish speaking clients in my law school’s domestic violence and immigration clinic and has proven invaluable in my current practice counseling employers who may have Spanish-speaking employees.

What was your first job?  

My first job was Continue reading

Its Back to the Drawing Board on Browning-Ferris…Again

As the definition of a joint employer shifts with each change in Administration, so too does the holding of Browning-Ferris – a case that has been fluctuating between the National Labor Relations Board (“NLRB”) and the United States Court of Appeals for the District of Columbia (“D.C. Circuit Court”) for nearly ten years.

Court,Of,Law,And,Justice,Trial,Session:,Imparcial,Honorable,JudgeIn 2013, the Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (the “Union”) kicked off this almost decade-long controversy by petitioning the NLRB for representation of workers that it asserted were joint employees of Leadpoint Business Services and Browning-Ferris Industries of California, Inc. (“BFI”). Since then, the NLRB and the DC Circuit Court have issued numerous and, more often than not, contradictory rulings, culminating with this most recent decision from the D.C. Circuit Court.  Here, the Court challenged the Trump Administration’s NLRB’s reasoning that BFI was not a joint employer using what the NLRB termed “a clear rule of law requiring proof of direct and immediate control” that had been in place “for at least 30 years.” Essentially, the D.C. Circuit Court vacated the NLRB’s ruling because “the [NLRB] made multiple overlapping errors” in its analysis, which the Court asserted failed to support the NLRB’s ultimate decision.

Timeline of the Case

To better understand the D.C. Circuit Court’s most recent decision, below is a timeline of the prior decisions and related action from the NLRB related to the joint employer standard: Continue reading

[Webinar] Wage and Hour Best Practices

On Thursday, August 11, 2022 at 1 p.m. EST, join Andrew J. Sommer and Ashley D. Mitchell for a webinar regarding Wage and Hour Best Practices.

Employers are subject to numerous federal and state laws governing employee wages, the hours of work for which an employee must be paid, and the frequency and duration of breaks an employee is entitled to during the workday. Wage and hour issues are further complicated by a shift to remote work during the pandemic. Even the best-intentioned employers could face a multimillion-dollar wage and hour class action. This webinar will give you a blueprint for best practices and common pitfalls to avoid and mitigate the risk of future wage and hour litigation.

Participants in this webinar will learn about: Continue reading

DC Walks Back Certain Aspects of its Pending Ban on Non-Compete Agreements

DC employers may be aware of the District of Columbia’s impending ban on non-compete agreements, which originally was scheduled to become effective on October 1, 2021 and which was set to become one of the most explicit bans on non-compete agreements in the nation.

"upset,At,You,For,Breaching,The,Non-compete?,Of,Course,Not."The initial iteration of the law, titled the “District of Columbia Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), prohibited employers from requiring employees who perform work in Washington D.C. (or a prospective employee whom the employer reasonably anticipated would perform work in Washington, DC), from signing any agreement that included a non-compete provision.  The Act also made it unlawful for employers to have any workplace policy prohibiting employees from (i) being employed by another person; (ii) performing work or providing services for pay for another person; or (iii) operating their own business.  In other words, the Act rendered virtually all non-compete provisions unenforceable and forbade employers from instituting workplace policies, such as anti-moonlighting rules, that limit employees’ ability to work for other people or start their own business.

However, along with the effective date of the Act being delayed several times (first to April 1, 2022 and now to October 1, 2022), the D.C. Council recently passed the Non-Compete Clarification Amendment Act of 2022 (the “Clarification Amendment Act”), which tempers certain aspects of the law.

First, the Clarification Amendment Act explains that Continue reading

[Webinar] Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias

On Wednesday, July 20th at 1 p.m. EST, join Aaron R. Gelb and Ashley D. Mitchell for a webinar regarding Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias.

Appearance-based discrimination occurs when someone is treated differently based on how they look. Although there is no federal law that prohibits “appearance discrimination” in employment, claims involving such issues are typically brought in the context of prohibited race, sex, or disability discrimination allegations. While there was a case several years ago that garnered a good deal of media attention involving a female bank employee who claimed she was told she was “too sexy” for her position, it is more common to encounter claims by women (and men) that they were treated less favorably than a coworker whom the boss found attractive. Obese workers have alleged that they were perceived as disabled because of their weight and employees who wear certain garments and/or jewelry as part of their religion have also filed claims of discrimination. Meanwhile, hairstyles and types are now on the cutting edge of fair employment law compliance.

For years, savvy employers recognized that there may be a need to accommodate certain religious beliefs pertaining to hairstyles, but a growing number of jurisdictions have passed or are considering laws that prohibit race-based hair discrimination such as the CROWN Act (“Creating a Respectful and Open World for Natural Hair”) which is focused on ending the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.

Participants in this webinar will learn: Continue reading