Lauren Teukolsky Publishes "Wage And Hour Case Notes" in the California Labor & Employment Law Review
In the March 2022 edition of the California Labor & Employment Review, Lauren Teukolsky published the "Wage and Hour Case Notes," describing five new decisions from California's appellate courts that impact wage-and-hour law. The column includes a discussion of notice requirements for Private Attorneys General Act ("PAGA") cases, the application of California's paystub requirements to flight attendants, the legal standard for reviewing PAGA settlements, whether pizza delivery drivers are exempt from arbitration, and whether non-profits may use unpaid volunteers.
Wage-and-hour law is a dynamic field, with new appellate decisions that regularly reshape the legal landscape. Ms. Teukolsky is an expert in California wage-and-hour law, and speaks regularly on wage-and-hour topics at national and state conferences.
If you would like to consult with Ms. Teukolsky on a wage-and-hour matter, you can use this page to get in touch.
U.S. Senate passes landmark law to protect victims of sexual assault and harassment from arbitration
Last week, the United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, signaling a huge victory for victims of sexual assault and harassment across the country. The law prevents employers from using forced arbitration clauses to protect themselves from lawsuits alleging sexual assault and harassment. The bill invalidates forced arbitration clauses in “any dispute or claim that arises or accrues” after the date it is signed into law. This appears to mean that it applies to existing agreements that an employee has already signed, but does not revive sexual assault or harassment cases that have already been arbitrated.
Employers often include forced arbitration clauses in their employees’ employment contracts to ensure that employees’ claims of sexual assault or harassment are resolved through private arbitration, rather than normal court. Many employers do this because the employees tend to fare worse in private arbitration than they do in court. According to a paper published by the Economic Policy Institute, employees in private arbitration win only about a fifth of the time (21.4 percent), whereas employees in federal court win over one-third (36.4 percent) of the time. Employees also tend to be awarded less in damages in mandatory arbitration than in federal courts.
The new bill, H.R. 4445, has not been signed into law yet, but has now been passed by both chambers of Congress with strong bipartisan support. President Biden has indicated support for the bill in the past and is expected to sign it into law soon.
If you believe you have faced sexual assault or harassment at work, or have questions about arbitration, contact Teukolsky Law today for a free consultation.
Whistleblowers whose employers retaliate against them received some good news recently from the California Supreme Court. On January 7, 2022, the Court handed down a decision in Lawson v. PPG Architectural Finishes, Inc., holding that whistleblowers may prove their claims by a “preponderance of the evidence,” and that employers can defeat such claims only by showing “by clear and convincing evidence” that they would have taken the same adverse action even if the employee had not engaged in whistleblowing. A “preponderance of the evidence” standard is relatively low – it simply means that it was more likely than not that the employer engaged in unlawful retaliation. By contrast, the “clear and convincing evidence” standard is far higher, meaning that the employer will have a difficult time proving its defense than the employee will have in proving that retaliation occurred.
The Court rejected the employer’s argument that whisteblower claims should be evaluated using a more stringent test that is typically used in federal lawsuits.
This victory for whistleblowers comes on the heels of the California Legislature’s decision in 2021 to permit whistleblowers who prevail on their claims to recover their attorneys’ fees from a losing employer. Previously, prevailing whistleblowers had to bear their own attorneys’ fees.
Associate Justice Leondra Kruger, who is rumored to be a contender for a U.S. Supreme Court seat after Justice Stephen Breyer announced he will retire, authored the unanimous decision.
Jeffrey Thornton, a Black job applicant in San Diego, has filed the first discrimination lawsuit in California invoking the CROWN Act, a relatively new California law that went into effect in January 2020. CROWN (Create a Respectful and Open Workplace for Natural Hair) prohibits companies and public schools from using grooming policies targeting Black people’s natural hairstyles, including cornrows, dreadlocks, and twists.
In late November 2021, Thornton sued an event production company called Encore Global, which has an office in San Diego, alleging that Encore violated the CROWN Act when they asked him to cut his dreadlocks as a condition of employment. Thornton says Encore told him he would need to cut his dreadlocks to comply with the company’s standards. The lawsuit alleges that Encore required Thornton to cut his hair so that it was off his ears, eyes and shoulders, and that he would not be in compliance by simply tying back his hair.
Since California passed the first CROWN Act in 2019, twelve more states have passed similar legislation. While federal courts generally take the stance that afros are a racial trait protected by anti-discrimination laws, they don’t take the same position toward other natural Black hairstyles. That is why the CROWN Act offers unique and groundbreaking protection for California employees. California state senator Holly Mitchell, who wears locs, originally introduced the CROWN Act after being inspired by a case involving a Black woman in Alabama who lost her job at a call center after refusing to cut her dreadlocks.
Encore has stated since the filing of the lawsuit, “We regret any miscommunication with Mr. Thornton regarding our standard grooming policies — which he appears to fully meet and we have made him an offer of employment.” Thornton seeks an injunction prohibiting Encore from implementing a grooming or personal appearance policy that violates the CROWN Act or is otherwise discriminatory against people of color.
If you believe you have faced racial discrimination at work, contact Teukolsky Law today for a free consultation.
This year, thousands of American workers have gone on strike in hopes of better working conditions, higher pay, and a greater commitment to their safety and well-being in the midst of the pandemic. As the year draws to a close, we would like to take a moment to acknowledge some notable strikes from 2021.
John Deere – More than 10,000 workers at John Deere went on strike for five weeks in October and November. The United Auto Workers negotiated the new agreement, which the workers accepted in mid-November. The deal included a 10% immediate raise, an $8,500 signing bonus, 5% raises in the third and fifth year of the six-year deal, and additional lump sum payments equal to 3% of wages in years two, four and six. It also reinstated a cost-of-living adjustment to protect workers from inflation and the increased cost of housing and goods.
Kellogg – Around 1,400 workers have been on strike at 4 different cereal plants since the beginning of October. On December 7, the workers rejected a tentative plan for a five-year contract that their union negotiated. The strike is mainly about the two-tier compensation structure at the company. Under the current terms, newer employees earn lower wages and receive fewer benefits than more seasoned workers. However, this lower tier included up to 30 percent of workers. The company said that in the wake of the rejected agreement, it would “hire permanent replacement employees in positions vacated by striking workers.”
Frito-Lay – Around 600 employees at the Topeka Frito-Lay plant struck for 19 days in July, ending the strike with the ratification of a two-year contract that guarantees at least one day off per week and a raise in wages. Workers at the plant had been working forced overtime and 84-hour work weeks.
We salute the brave workers across the country who have put their own livelihoods on the line to fight for better pay and working conditions. When we fight, we win.
On November 12, 2021 at 4:00 p.m., Lauren Teukolsky will be speaking on a panel at the ABA’s 15th Annual Labor & Employment conference at the Beverly Hilton Hotel in Los Angeles. Ms. Teukolsky and her colleagues will be speaking about the important topic of rise of the remote workforce. Specifically, the panel will be addressing timekeeping, expense reimbursement, and issues raised by relocation—all subjects that have grown to be all the more relevant during the COVID-19 pandemic. Ms. Teukolsky’s co-panelists are Caryl Flannery, Joshua Young, and R. Nelson Williams.
Ms. Teukolsky is a frequent speaker at conferences on topics of employment law and litigation. Most recently, in September 2021, she spoke at the Consumer Attorneys Association of Los Angeles (CAALA) Annual Conference on opposing motions to compel arbitration.
On October 27, the Washington Post reported that U.S. employers closed nearly 14,000 private arbitration cases in 2020, a 17 percent increase from 2019. The Post wrote about findings from a report by the American Association for Justice.
“Critics say the system, in which cases are decided by private arbitrators, keeps employment disputes out of the public eye and fails to hold corporations accountable,” the Post wrote. Mandatory arbitration agreements are increasingly common, both as a condition of employment and for consumers signing up for products and services.
This week, the House Judiciary Committee is marking up the Forced Arbitration Injustice Repeal (FAIR) Act, which would ban mandatory arbitration. According to a 2018 report from the Economic Policy Institute, arbitration disproportionately affects low-wage workers and the retail industry; arbitration typically favors companies while shielding them from accountability for working conditions. According to the new report, employees were awarded money in just 1.6 percent of arbitrations in 2020. Decisions in arbitrations are final and cannot be appealed.
California has moved to prohibit mandatory arbitration for employees, but nationwide, just three states, including California, require arbitration companies to self-report certain data, like claim types and the prevailing party in each case.
Lauren Teukolsky is one of the leading experts in California on arbitration agreements. She is a frequent speaker at statewide conferences on the topic of arbitration, including for the California Employment Lawyers Association and the California Lawyers Association (formerly State Bar). If you have questions about whether an arbitration agreement is enforceable, contact us today for a consultation.
The results are in. Lauren Teukolsky has received the Avvo "Client Choice Award 2021," given to attorneys who receive five or more 4+ star reviews in a year. Ms. Teukolsky also has a perfect 10.0 rating on the site. Here's what clients are saying:
On October 8, Governor Gavin Newsom signed SB 331 into law. The bill, sponsored by State Senator Connie Leyva, makes it illegal for companies to prohibit employees from speaking about discrimination and harassment.
Previously, laws such as the Stand Together Against Non-Disclosures Act banned non-disclosure agreements (NDAs) in sexual harassment, but did not prohibit NDAs for other types of discrimination, such as race, religion, sexual orientation, and gender identity. Now, California workers will have legal protections for speaking out about all manner of unlawful conduct in the workplace.
This legislation has been strongly supported by Ifeoma Ozoma, a Pinterest whistleblower who spoke out about racial discrimination at the company. NDAs are commonly used, particularly in the tech industry, to keep employees quiet about workplace harassment and discrimination for fear of facing legal action and fines. People began discussing them more frequently after it was reported during the #MeToo movement that Harvey Weinstein and other abusers used NDAs to silence their victims.
SB 331 was sponsored by the California Employment Lawyers Association (CELA), the organization Earthseed, and Equal Rights Advocates. It will take effect on January 1, 2022.
If you believe you have been a victim of discrimination or harassment in the workplace, contact Teukolsky Law today for a free consultation.
On October 7, 2021 at noon, Lauren Teukolsky will lead a discovery training for non-profit attorneys alongside litigation veterans Bob Newman and Lorraine Lopez. The training is part of the Western Center on Law and Poverty’s “Discovery Academy,” taking place over seven sessions starting tomorrow. Ms. Teukolsky and her colleagues will provide discovery tips and perspectives that are enlightening for both new and experienced litigators. The Center is anticipating over 350 participants at the training—mostly attorneys who work at non-profits in California providing legal services to indigent clients. Ms. Teukolsky is a frequent speaker at conferences and panels on topics of employment law and litigation, and most recently spoke at the Bellagio in Las Vegas as part of the Consumer Attorneys Association of Los Angeles (CAALA) annual convention.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.