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Most employers are well aware that the Americans with Disabilities Act (and similar state laws) require employers to engage in the “interactive process” when an employee requests a disability accommodation. But in actual day-to-day practice, human resources professionals and others tasked with fulfilling this obligation often find themselves stumped. “Interactive process” is a vague term, and there is a lack of clarity regarding what it means for an employer to engage in this process. As…
The #MeToo movement has spawned several bills, many of which are aimed at prohibiting private arbitration of sexual harassment claims or outlawing confidentiality provisions in settlement agreements addressing sexual harassment claims.…
Yesterday (April 30, 2018) the California Supreme Court issued an opinion on the appropriate test to employ when assessing “independent contractor” classification under state law. The Court’s unanimous decision throws out the prior multi-factor test for determining independent contractor versus employee status for claims based on the California Industrial Welfare Commission’s Wage Orders. This new decision squarely places the burden on employers to establish, through a three-part “ABC Test,” that a worker is an independent…
Any employer who has been on the receiving end of a lawsuit filed by the EEOC or a similar state agency is aware that a standard requirement of settling this type of case is entering into a “consent decree.” A consent decree is a public record (which the agency will publicize on its website) that sets forth specific remedial measures an employer agrees to take as part of settling the dispute. Consent decrees typically…
The California Supreme Court just threw employers a serious curveball with respect to how employers must calculate overtime. And it did so by claiming employers should have known of this calculation method even though the same California Supreme Court declared it void over 20 years ago.…
In many states, the practice of paying nonexempt employees a “day rate,” “shift rate” or “job rate,” is gaining in popularity. A day rate occurs when a set amount of pay is guaranteed for a shift without regard to the hours worked. The appeal is obvious. For the employee, a guaranteed day rate means the employee is paid for a full shift even if he or she completes work early. For the employer, overtime…
Class action waivers in arbitration agreements exist in a legal gray zone, with the federal appellate courts split on their enforceability. Many employers believe that by forcing employees who sue them to do so only individually, they can avoid the prospect of very large judgements. The Ninth Circuit and Seventh Circuit have held that class action waivers in arbitration agreements violate the National Labor Relations Act (NLRA) and therefore are unenforceable. Three other federal circuit courts  (the Fifth,…