- Posts by M. Brett BurnsPartner
Brett’s practice focuses on employment class actions, wage and hour class and collective actions, complex public accommodations litigation, and state and federal agency pattern or practice actions. For more than thirty years ...
California law requires employers to provide employees written wage statements listing gross and net wages earned, hourly pay rates, hours worked, and other employment-related information. (Lab. Code, § 226.) If a claimant demonstrates that an employer has failed to comply with this requirement, the claimant is entitled to an injunction compelling compliance and an award of costs and reasonable attorney’s fees. (Id., subd. (h).)
On August 29, 2023, the California Court of Appeal issued a new opinion that, once again, changes how parties litigate and settle claims brought under California’s Private Attorneys’ General Act (“PAGA”). See Robert Lacour v. Marshalls of California, LLC, et al., 94 Cal.App.5th 1172, 313 Cal.Rptr.3d 77.
While the intent of Title III of the Americans with Disabilities Act was to improve equality of access to goods and services offered by places of public accommodation, the Plaintiffs’ bar has seized on the law to recruit serial litigants—also known as “professional plaintiffs” or “paid testers”—to repeatedly sue businesses for minor, technical violations without actually seeking to purchase anything at all.
Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.
Employers operating in California often ask employees to agree to arbitrate employment-related disputes as a term and condition of employment. In its recent Chamber of Commerce v. Bonta decision, the Ninth Circuit took a significant step toward prohibiting such mandatory employment arbitration agreements. However, the combination of a 2-1 panel decision (authored by a visiting judge from the Tenth Circuit), a scathing dissenting opinion, and a holding that splits with decisions from the First and Fourth Circuits all but ensures more litigation. As a result, the case is far from over, so while employers eventually may have to consider changing their arbitration agreement practices, they very likely have some time to let the dust settle before doing so.
Due to the novel coronavirus (COVID-19), many San Francisco businesses have closed in order to contain the spread of the pandemic, resulting in declining revenues and widespread business interruption. These economic conditions have led to employee layoffs across San Francisco. As San Francisco employers work to restore their business operations in the wake of COVID-19, they should be aware of new rules that may affect how they rebuild their workforce.
Could the onslaught of anticipated accessibility litigation surrounding Braille Gift Cards in 2020 be limited by a strict construction of the ADA Title III standing requirement? Maybe so.
The cottage industry of accessibility litigation in New York was recently dealt a blow when the Eastern District of New York dismissed a serial plaintiff’s class action accessibility complaint by strictly construing the standing requirement and finding that the court lacked subject matter jurisdiction.
The California Department of Fair Employment and Housing (“DFEH”) recently updated its Sexual Harassment Prevention Training FAQ guidance to address some of the questions surrounding SB 1343, which requires employers with five or more employees to provide classroom or “other interactive training” for all California employees (not just supervisors) every two years. SB 1343 was initially set to go into effect on January 1, 2020. But in 2019, Governor Newsom signed two amendments to SB 1343 that push the effective date out to January 1, 2021. The deadline to comply with SB 1343 does not change the obligation of an employer with 50 or more employees to train new supervisory employees within six months of their promotion or hire.
As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA). Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.
Does an individual who receives a single text message, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), have standing to sue in federal court? The answer, for now, depends on where the lawsuit is filed.
In Corona Regional Medical Center v. Sali, No. 18-1262 (May 3, 2019), the Supreme Court recently dismissed a petition for a writ of certiorari that would have resolved a circuit split as to whether expert testimony must be admissible to be considered at the class certification stage. As a result, the Ninth Circuit remains one of only two circuits that have ruled workers are not required to submit admissible evidence to support a motion for class certification. In contrast, the Second, Third, Fifth, and Seventh Circuits have all held that expert testimony must be admissible to be considered at the class certification stage.
Each year, the California Chamber of Commerce (“Chamber”) identifies proposed state legislation that the Chamber believes “will decimate economic and job growth in California.” The Chamber refers to these bills as “Job Killers.” In March, the Chamber identified the first two Job Killers of 2019: AB 51 and SB 1. Both bills would negatively impact retailers in California. You can view the Chamber’s Job Killer site here.
What must a private business do to ensure that its website complies with Title III of the Americans with Disabilities Act (“ADA”), which requires that places of public accommodation provide “full and equal enjoyment” to individuals with disabilities? As discussed in a previous post, the ADA was enacted before widespread use of the Internet and does not directly address whether websites are places of public accommodation, or what a business must do so that its website complies with the ADA. The U.S. Department of Justice (“DOJ”) has publicly stated that websites must be accessible to individuals with disabilities, but has yet to articulate specific technical requirements for websites.
We recently highlighted DOL opinion letter 2018-27, which rescinded the 80/20 rule and was a welcome change for employers in the restaurant industry. However, less than two months after the DOL’s policy change, the U.S. District Court for the Western District of Missouri rejected the DOL’s new guidance, claiming it is “unpersuasive and unworthy” of deference.
As a refresher, the 80/20 rule requires businesses to pay tipped workers at least minimum wage (with no tip credit) for non-tip generating tasks when these tasks take up more than 20% of the tipped workers’ time.
As the new year gets off to a start, employers in the retail industry will be making wage adjustments to meet current and future minimum wage increases. Employees in 21 states around the country will see their state’s minimum wage increase.
The Department of Labor (“DOL”) recently published an Opinion Letter (FLSA-2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA-2009-23) and reversing its Obama-era position on the 20% tip credit rule. This opinion letter marks another major shift in DOL’s policy and presents a welcome change for employers in the restaurant industry.
The U.S. District Court for the Northern District of California is a popular venue for class action lawsuits. As of November 1, 2018, it is also the first to require parties settling such lawsuits to make broad public disclosures regarding the settlements.
As website accessibility lawsuits continue to surge, places of public accommodation oftentimes battle multiple lawsuits filed by different plaintiffs represented by different attorneys. Even after entering into private settlements, which include detailed website remediation plans, defendants may continue to be the target of these lawsuits by copycat plaintiffs. The Eleventh Circuit recently addressed this dynamic head-on, and held that a private settlement entered into by Hooters and a first-filed plaintiff did not moot a nearly identical, later-filed website accessibility lawsuit by a different plaintiff. This case underscores the importance of quickly remediating website accessibility issues, as well as taking care to draft settlement agreements to maximize arguments that future lawsuits are barred.
Oregon’s Fair Work Week Act (also known as Oregon’s predictive scheduling law) (the “Act”) is proceeding full speed ahead and will add significant challenges and costs for retailers. The majority of the Act goes into effect on July 1, 2018. Following similar ordinances regulating employee hours passed at municipal levels in Emeryville, California; New York City; San Francisco; San Jose; Seattle; and Washington, D.C., Oregon becomes the latest jurisdiction and the first state to enact a predictive scheduling law.
The Sixth Circuit recently affirmed a district court’s summary judgment decision finding that an employer, Plastipak Holdings, Inc., Plastipak Packaging, Inc., Plastipak Technologies, LLC, Plastipak, and William C. Young (collectively, “Plastipak”) properly had paid employees using the “fluctuating workweek” method and dismissing plaintiffs’ claims for underpayment of wages under the Fair Labor Standards Act (“FLSA”).
On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620). Title III of the Americans with Disabilities Act was enacted to ensure access for persons with disabilities to public accommodations. Too often however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access. By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses.
It should come as no surprise that California, known for regulating work, also regulates rest. Section 551 of the California Labor Code states that, subject to certain exceptions, all employees are entitled to “one day’s rest” from labor “in seven” and Section 552 states that employers shall not “cause [] employees to work more than six days in seven.” The Ninth Circuit Court of Appeals asked the California Supreme Court in Mendoza v. Nordstrom, Inc. these three specific questions:
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- Mark Pearce
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- mask
- Mass Layoff
- Massachusetts
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- McLaren Macomb
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- Meal and Rest Breaks
- meal breaks
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- Meat Processing
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- Member Kaplan
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- Memo
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- Mere Negligence
- Mexican Ministry of Foreign Affairs
- Michael Levine
- Michele Beilke
- Micro Units
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- Military Leave
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- Miller & Anderson
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- Musculoskeletal Disorders
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- New York Law
- New York Local Law 50
- New York Paid Vaccination Leave
- News & Events
- Ninth Circuit
- NLRA
- NLRB
- NLRB Poster
- NLRB; NLRA; Labor Law; Union; Collective Bargaining; Workplace Rights
- NLRB; Property Rights; Misclassification
- NLRB; Union; Collective Bargaining Agreement
- No-Poach Agreements
- No-Rehire
- Noah’s Ark
- Noel Canning
- non-binary
- Non-Compete
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- Non-Competes
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- Non-discrimination
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- Notice 2010-84
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- notice requirements
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- NYC
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- Obesity
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- ODEP
- OFCCP
- OFCCP Compliance; Affirmative Action; Agency Developments; Veteran Hiring
- OFCCP Developments
- OFCCP v. Florida Hospital of Orlando
- Off Duty Conduct
- Off-label Marketing
- Off-the-Clock Work
- Offer Of Judgment
- Offshoring
- OLMS
- omicron
- Ondray Harris
- Ondray T. Harris
- Online Accessibility
- Opinion Letters
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- Ordinary Disease of Life
- Oregon
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- OSHA
- OSHA Developments
- Outbreak
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- overtime exemption
- Overtime Exemptions
- Overtime Pay
- Overtime Regulations
- Overtime Rule
- Overtime Wages
- OWBPA
- Oxford Health Plans
- PAGA
- Paid Family Leave
- Paid Family Medical Leave
- Paid Interns
- Paid Leave
- Paid Sick Leave
- paid time off
- Paid Vaccine Leave
- Pandemic
- Pandemic Unemployment Assistance
- Parental Leave
- Patent
- Patient Protection and Affordable Care Act
- Patricia Shiu
- Pattern and Practice
- Paulsen v. Renaissance Equity Holdings
- Pay
- Pay and Promotions
- Pay Data
- pay disclosure
- Pay Discrimination
- Pay Equity
- Pay Reporting
- pay scale
- Pay Secrecy
- Pay Transparency
- Pay/Compensation
- Paycheck Deductions
- Paycheck Fairness Act
- Paycheck Protection Program
- Payroll Audit Independent Determination Program
- Payroll Debit Cards
- Payroll Taxes
- PBGC
- PCA
- PCC Structurals
- PCORI
- PDLL
- Penalties
- Penalty
- Pennsylvania
- Pennsylvania Minimum Wage Act
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- Peoplemark
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- Perfectly Clear Doctrine
- Perfectly Clear Successor
- Performance and Accountability Report
- Period of Restoration
- Personal Jurisdiction
- Personal Jurisdiction; FLSA; Class Actions; Collective Action; General Jurisdiction; Specific Jurisdiction; Rule 23
- Personnel Policies
- Personnel Records
- Persuader Activity
- Persuader Agreements
- Persuader Rule
- Peter B. Robb
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- Petition
- PEUC
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- Philadelphia
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- Pizza Hut
- PLA
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- POWADA
- Poway Academy
- PPACA
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- Pre-Adverse Action Notice
- Pre-Adverse Action Requirements
- Precedent
- Predictable Scheduling
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- Pregnancy Disability Leave
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- Pregnancy Discrimination Act
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- Pregnant Workers Fairness Act
- Preliminary Injunction
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- Prescription Drugs
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- Prevailing Wage
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- Privacy
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- provision
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- Purchase Agreements
- Purple Communications
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- Qualified Plans
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- Questioning
- Quickie Election
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- Race Discrimination
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- Range
- Raytheon
- Reasonable Accommodation
- Reasonable Accommodations
- Recess Appointments
- Recordkeeping
- recruiting
- Reduction-in-Force
- Register Guard
- Regular Rate
- Regular Rate of Pay
- Regulation
- Regulations
- Regulatory Compliance
- Rehabilitation Act
- Reilly Moore
- Reimbursement
- Reimbursements
- release
- Religion
- Religious Accommodation
- Religious accommodation; Title VII; SCOTUS; Supreme Court; Third Circuit
- Religious Accommodations
- Religious Beliefs
- Religious Discrimination
- Religious Freedom Restoration Act
- Religious Institutions
- remedies
- Remote Work
- remote workforce
- Reopen Workplace
- Reopening Business
- Reopening Workplace
- Repeal
- report
- Reporting
- Reporting of Group Health Plans
- Reporting Pay
- Representation Election
- Representation Elections
- Representation Fairness Restoration Act
- Reprisal
- Reproductive Loss Event
- Reproductive Loss Leave
- Reproductive Rights
- Rescind
- RESPECT Act
- rest breaks
- Restaurant
- Restaurant Industry
- Restaurants
- Restoring Balance and Fairness to the National Labor Relations Board
- restriction
- Restrictive Covenants
- Restrictive Covenants Act
- Retail
- Retail Litigation Center
- Retaliation
- Retirement Plans
- Retirement Savings
- Return to Work
- Revenue Procedure 2013-12
- Revenue Ruling 2014-9
- Ricci v. DeStefano
- Richard Griffin
- RICO
- RIF
- RIFs
- right of first refusal
- Right to Disconnect
- Right to Know
- Right to Work
- Right-To-Sue
- Rising Star
- Rite Aid and Lamons Gasket
- Robert Quackenboss
- Roland Juarez
- Roland Juarez; Los Angeles Business Journal
- Roland M. Juarez
- Rollovers
- Roth
- Rounding Policy
- Rounding Time
- Rule 23
- Rule 68 Offer
- Rule-Making
- Rulemaking
- Ryan A. Glasgow
- Ryan Bates
- Ryan Glasgow
- Sabbath
- Safety
- Safety Incentives
- Salary
- Salary Basis Test
- Salary History
- Salary History Bans
- Salary History Inquiries
- Salary Inquiry
- Salary Reduction
- Sales Commissions
- Same-Sex
- Same-sex couples
- San Francisco
- San Francisco Fair Chance Ordinance
- Sanjee Weliwitigoda
- Sara Harlow
- Sarbanes-Oxley
- SB 459
- SB 553
- SB 95
- SB-973
- SBA
- SBC
- SCA
- Scabby
- Scale
- Scheduling Letter
- Schneiderman
- School Closings
- Scope Of Coverage
- Scott Brown
- Scott H. Kimpel
- Scott Nelson
- SCOTUS
- Sealed Records
- SEC
- Second Circuit
- Secondary Boycotts
- Section 125
- Section 1557
- Section 1983
- Section 203
- Section 2802
- Section 302
- Section 7
- Section 7 Rights
- Secure Scheduling
- Security
- Security Screenings
- Seff v. Broward County
- SEIU
- Self-Insured Health Plans
- Senate Bill 1162
- Separation Agreements
- Settlement
- Settlement Agreement
- Settlement Agreements
- Settlement Disclosure
- Seventh Circuit
- severance
- Severance Agreements
- Severance Payments
- Severe Injury Report
- Sex Discrimination
- Sexual Harassment
- Sexual Orientation
- SFFA
- Shaena Rowland
- Shannon S. Broome
- Sharon Block
- Sharon Goodwyn
- Shelter in Place
- Short-Time Compensation Program
- Shutdowns
- Sick Leave
- Sick Pay
- Silica Standards
- Single employer
- SIR Dashboard
- Sixth Circuit
- Slow the Spread
- Social Distancing
- Social Media
- Social Media Evidence
- Social Media Policy
- Solicitation Policy
- Solicitation/Distribution Policy
- Southern California Pizza Co.
- Speak Out Act
- Specialty Healthcare
- Specific Jurisdiction
- Spirituality Programs
- Spokeo
- Spoliation
- Spousal Rights
- Standard of Review
- Standing
- Staples
- Starbucks
- state court
- state legislation
- Statistical Audits
- Statute of Limitations
- Statute of Repose
- Statutes of Limitations
- Staub v. Proctor Hospital
- Stay Violations
- Steering Claims
- STEM
- Stengart v. Loving Care Agency
- Stephen Pattison
- Stewart Acuff
- Stillborn
- Strategic Objectives
- Strategic Plan
- Stray Markings
- Stray Remarks
- Strike
- Strike Plans
- Strike Tactics
- Students for Fair Admissions
- SUB Payments
- Subcommittee on Health
- Subject-Matter Jurisdiction
- Subpoena
- Subpoena Duces Tecum
- Substantial Compliance
- Successor Bargaining Duty
- Successor Company
- Successor Employer
- Successor Employer Duty to Bargain
- Successor Liability
- Suitable Seating
- Summary of Benefits and Coverage
- Super Lawyers
- Supervisor
- Supplemental Paid Sick Leave
- Supply Chain
- Supreme Court
- Susan Wiltsie
- Suspension
- Suzan Kern
- Systemic Discrimination
- Systemic Enforcement
- Taxpayer Responsibility Accountability and Consistency Act
- TCPA
- Technatomy Corporation
- Telecommuting
- Telephone Consumer Protection Act
- Telework
- Temporary Employees
- Temporary Reinsurance Program
- Temporary Workers
- Tenth Circuit
- Terence Connor
- Terrence Flynn
- Tesla
- Test Factor
- Testing
- Texas
- Texas Constitution
- Texas Lawyer
- Texas Legal Awards
- Texas Mutual v. Ruttiger
- Texas Regulatory Consistency Act
- Texting
- The Board
- The Boeing Company
- The Opportunity to Work Ordinance
- Third Circuit
- Third-party Liability
- Thompson v. North American Stainless
- Thriving in Their 40s
- Time Rounding
- Timekeeping
- Tip
- Tip Credit
- Tip Pooling
- Tip Sharing
- Tipped Employees
- Tipped Workers
- Tipping Policies
- Tips
- Title III
- Title IX
- Title VII
- Title VII of the Civil Rights Act of 1964
- Tolling
- Top Insurance Cases
- TRAC
- Trade Secrets
- Trade Secrets & Non-Competes
- Trademark
- Traditional labor
- Trailblazer
- Training
- Training Programs
- Transgender
- Transgender Rights
- Transparency
- TransUnion
- Tratree
- Traxler v. Multnomah County
- Trial Management
- TRICARE
- Trucking Industry
- Trump Administration
- Trump Rule
- Tyler S. Laughinghouse
- Typicality Requirement
- U.S. Senate
- U.S. Senate Finance Committee
- UAW
- Uber
- Uber Drivers
- ULP
- ULP Charge
- UNC
- Unconscionability Doctrine
- Undocumented Workers
- undue hardship
- Unemployment
- Unemployment Benefits
- Unemployment Compensation
- Unemployment Discrimination
- Unemployment Insurance
- Unfair Labor Charge
- Unfair Labor Practice
- Unfair Labor Practices
- Uniform Glossary
- Unilateral Change
- Union
- Union Apparel
- Union Button
- Union Dues
- Union Election
- Union Elections
- Union Information Request
- Union Insignia
- Union Logo
- Union Organizing
- Union Organizing and the NLRB
- Union Rat
- Union Representation
- Union Representation Elections
- Union Sticker
- Unions
- United States v. Windsor
- University of North Carolina
- Unlawful Insistence
- Unlimited Vacation
- Unsuccessful Assisted Reproduction
- UPMC Braddock
- US Chamber of Commerce
- US Supreme Court
- USAction
- USCIS
- USDA
- Use or Lose Rule
- USERRA
- Vacation
- Vacation Pay
- Vacation Scheduling
- Vaccination
- Vaccine
- Vaccine Incentives
- Vaccines
- Valley Hospital Medical Center
- Variant
- VBA
- VCP
- Venue
- Veterans Preference Act
- VETS-100A
- VETS-4212
- VEVRAA
- Victoria Lipnic
- Video
- Viking River
- Virginia
- Virginia Business Magazine
- Virginia Center for Inclusive Communities
- Virginia Employment Legislation
- Virginia Human Rights Act
- Virginia Labor Law
- Virginia Law
- Virginia Lawyers Weekly
- Virginia Marijuana Laws
- Virginia Overtime Wage Act
- Virginia Wage Payment Act
- Virginial Lawyers Weekly
- Virus
- Visa Waiver
- Vital Industry
- Volks Rule
- Voluntary Incentive
- Voter List
- VW
- Wage & Hour
- Wage and Hour
- Wage and Hour Exclusion
- Wage Equality Act
- Wage Fixing
- Wage Inquiries
- Wage Investigation
- Wage Payment
- Wage Penalties
- Wage Reduction
- Wage Statement
- Wage Theft
- Wage Theft Prevention Act
- Wage Transparency
- Waiter
- Waiting Period Rules
- Waiver
- Waivers
- walk around
- Walling v. Portland Terminal
- Wang v. Chinese Daily News
- WARN
- WARN Act
- Washington DC
- We Can Help
- Weapons
- Web Accessibility
- Web Designer
- Webinar
- Website
- Website Accessibility
- Weight Restrictions
- Weingarten
- Wellness Programs
- Wesson
- West Virginia Workplace Freedom Act
- WHD
- Whistleblower
- Whistleblowers
- White Collar Exemption
- William Emanuel
- William J. Emanuel
- Wilma Liebman
- Windsor Decision
- Withdrawal of Recognition
- withholding requirements
- Witness Statements
- Women
- Women In Leadership
- Women of Influence
- Women’s Equality Act
- Work Schedule
- Work Transfers
- Work-Sharing
- Worker Misclassification
- Worker Protection
- Worker Safety
- Workers Bill of Rights
- Workers Compensation
- Workers' Compensation Insurance
- Workplace AI
- Workplace Diversity
- Workplace Investigations
- Workplace Monitoring
- Workplace Policies
- Workplace Privacy
- Workplace Rules
- Workplace Safety
- Workplace Technology
- Workplace Violence
- Workplace Violence Prevention
- WR Reserve
- Wrongful Discharge
- Year In Review
Authors
- Jessica N. Agostinho
- Walter J. Andrews
- Ian P. Band
- Ryan M. Bates
- Christy E. Bergstresser
- Theanna Bezney
- Jesse D. Borja
- Brian J. Bosworth
- Jason P. Brown
- M. Brett Burns
- Daniel J. Butler
- Christopher J. Cunio
- Jacqueline Del Villar
- Kimberlee W. DeWitt
- Steven J. DiBeneditto Jr.
- Robert T. Dumbacher
- Raychelle L. Eddings
- Elizabeth England
- Juan C. Enjamio
- Karen Jennings Evans
- Geoffrey B. Fehling
- Jason Feingertz
- Katherine Gallagher
- Ryan A. Glasgow
- Sharon S. Goodwyn
- Meredith Gregston
- Eileen Henderson
- Kirk A. Hornbeck
- J. Marshall Horton
- Roland M. Juarez
- Keenan Judge
- Suzan Kern
- Elizabeth King
- Stephen P. Kopstein
- Torsten M. Kracht
- James J. La Rocca
- Kurt G. Larkin
- Jordan Latham
- Tyler S. Laughinghouse
- Crawford C. LeBouef
- Michael S. Levine
- Michelle S. Lewis
- Brandon Marvisi
- Lorelie S. Masters
- Reilly C. Moore
- Michael J. Mueller
- J. Drei Munar
- Alyce Ogunsola
- Christopher M. Pardo
- Michael A. Pearlson
- Adriana A. Perez
- Kurt A. Powell
- Robert T. Quackenboss
- D. Andrew Quigley
- Michael Reed
- Jennifer A. Reith
- Amber M. Rogers
- Alexis Zavala Romero
- Zachary Roop
- Adam J. Rosser
- Katherine P. Sandberg
- Elizabeth L. Sherwood
- Cary D. Steklof
- C. Randolph Sullivan
- Veronica A. Torrejón
- Debra Urteaga
- Emily Burkhardt Vicente
- Kevin J. White
- Holly H. Williamson
- Susan F. Wiltsie