Employment Law Observer

When assessing potential exposure for their employer-clients under federal labor and employment statutes, employment and health care attorneys often must start with the basics. That determination of employment status becomes even more important in medical facilities, such as hospitals, which have multiple and complex levels of workers with varying levels of skills and responsibilities. This is especially true with independent medical staff members who may have other contractual relationships with hospitals—such as recruitment agreements or administrative services contracts—which can complicate these questions.

Nearly 60 years after the passage of the Equal Pay Act of 1963, we find that the gender pay gap is not only alive and well, but also remains a subject of controversy. This was apparent in the Ninth Circuit's ruling in Aileen Rizo v. Jim Yovino, which we've been following since the Ninth Circuit heard the case. This is the highest-profile court to address the use of salary history—and its intersection with the Equal Pay Act—in the employment setting.

In a major victory for franchisors, a panel of the Ninth Circuit recently held that McDonald's Corporation cannot be liable as a joint employer for the wage and hour violations of its franchisees. Importantly, the court held that McDonald's involvement with its franchises and franchise workers is focused on maintaining brand standards and "does not represent control over wages, hours or working conditions." However, uncertainty remains over the liability of franchisors that impose more than just branding and marketing standards on its franchisees.

Last year, the U.S. Supreme Court (SCOTUS) handed employers a major win in Epic Systems v. Lewis, when it ruled that employees must submit claims to arbitration on an individualized basis when their employment agreements require it, even when those claims could be brought as class or collective action under federal legislation. More recently, in Lamps Plus Inc. et al. v. Frank Varela, SCOTUS addressed the issue of whether a worker can pursue class arbitration when an arbitration agreement does not explicitly address class arbitration. By a 5-4 vote, the court said class arbitration is also barred in such circumstances, holding that "[u]nder the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration[.]"

Use of one's last salary or salary history to determine compensation can be a proxy for sex discrimination. Once considered a legitimate "factor other than sex," some jurisdictions are banning the use of a job candidate's salary history to determine compensation as it has perpetuated pay inequities between the sexes. The Ninth Circuit Court of Appeals is the highest-profile court to address, and ban, use of salary history in the employment setting in most (but not all) cases.

The California Supreme Court may soon provide health-care providers rare and much needed clarification concerning their wage and hour practices. It will do so in response to the Ninth Circuit’s request for guidance on the following wage and hour issues touching upon the meal and rest period rights of ambulance attendants:

In Guido v. Mount Lemmon Fire District, the Ninth Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) applies to public employers of any size.

The restaurant and gaming industry lost a battle in the Ninth Circuit over whether employers that pay their workers at least the minimum wage are subject to Department of Labor regulations restricting tip pooling arrangements.

In recent years, the courts and state legislatures across the country have been interpreting and enforcing laws regarding arbitration more strictly. What this means is that a lot of existing arbitration agreements no longer pass muster and must be revised in order to be compliant with the ever-changing laws. In this particular case, the employee's agreement to arbitrate employment disputes stood up, and it was because the employer had the right language in its policy documents. Read on.

In Abdullah v. U.S. Security Associates Inc., the Ninth Circuit held that the district court did not abuse its discretion by certifying a meal break subclass, defined as all past and present employees who (a) worked more than six hours, (b) were not provided a meal break, and (3) were not compensated for the meal break.

On September 3, 2013, in Wang v. Chinese Daily News, Inc., the Ninth Circuit clarified the restrictions on class certification imposed by Wal-Mart Stores, Inc. v. Dukes. The net effect of this ruling is to make it harder for plaintiffs to certify classes.

In Rodriguez v. AT&T Mobility Services LLC the Ninth Circuit cited recent United States Supreme Court precedent to make it more difficult for class action plaintiffs to pursue their claims in state court.

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee.

In Lawler v. Montblac North American LLC, the plaintiff, Cynthia Lawler, a store manager at a boutique retail store, was diagnosed with psoriatic arthritis.  Lawler initiated the action after Defendant employer terminated her employment.