Likewise, federal circuit and district courts repeatedly upheld class certification or reversed certification denial orders or denied motions to stay court actions and compel individual arbitration of claims, defeating companies’ hope that Concepcion, Stolt- Nielsen, and/or Wal-Mart v. Dukes would doom employees’ concerted activity. For the knowledge of breach of contract CACI check over the internet.
On top of these developments, the National Labor Relations Board’s (NLRB’s) progressive D.R. Horton, Inc., a decision from January 2012 reinvigorates a couple of other old statutes - the National Labor Relations Act (NLRA) of 1935, long ignored by all but the pure union lawyers, and the Norris-LaGuardia Act of 1932, 29 U.S.C. §§ 102, et seq., articulating a public policy to protect unorganized workers’ right of association. The NLRB reminded workers’ rights advocates that the protections for employees engaged in concerted activities under Section 7 of the NLRA and association covered by the Norris-LaGuardia Act are valuable outside the union context.
California’s Legislature also enacted new workers’ rights bills, with the “Wage Theft Prevention Act of 2011”(effective January 1, 2012), adding Labor Code section 2810.5, requiring that employers provide non-exempt workers with notice at the time of hire containing extensive information affecting their wages and working conditions, with a host of new civil and criminal penalties for wage violations or any failure to pay a Labor Commissioner judgment. Moreover, effective January 1, 2013, employees’ commission agreements must be transparent, written contracts.
Now, in the fall of 2012, the once- bleak outlook for wage/hour class-action litigators seems not only more hopeful but presents a host of new opportunities for plaintiffs’ attorneys. With the remainder of this article, I will discuss in more detail five particularly hot battle-grounds in the refreshed struggle for workers’ wages: 1) arbitration class waiver issues 'posX.-Concepcion and Stolt-Nielsen; 2) how Wal-Mart v. Dukes is affecting class certification; 3) new challenges and opportunities in misclassification cases where employers claim administrative, professional, and outside sales exemptions; 4) what is the next likely “shoe to drop” from the U.S. Supreme Court’s march to stomp out wage/hour class litigation; and, 5) the implications of Brinker and our battle yet to be won insurance, to continue allowing courts to be flexible in determining fair and efficient means to hear class-wide proof, through statistical and representative evidence, as has long been permitted under Sav-On.
In Stolt-Nielsen, the Supreme Court held that employers could not be required to engage in class arbitration where the arbitration agreement was silent regarding whether such was permitted and where no evidence proved the parties’ intent to agree to class arbitration. Plaintiffs’ advocates feared the Court had created the default position that where an employer forgot to prohibit class prosecution of claims against it in its arbitration provision, the employer would remain immune to class suit or arbitration since it had not overtly agreed to be subject to class claims. Then, the Court sought to finish the job in Concepcion, using the FAA to preempt California’s Discover Bank v. Superior Court (2005) 36 Cal.4th 148, with its presumption that a class waiver in an adhesion contract is unconscionable, as dis-criminatory against arbitration. In other words, we worried that companies after Concepcion and Stolt-Nielsen would feel free to prohibit wage/hour class litigation against themselves, explicitly, or by default.
- New details on Capitols day of terror are devastating indictment of Trump Impeachment prosecutors took senators on a wrenching journey