Jennifer A. Riley – Page 12 – Class Action Defense

October 11, 2022October 17, 2022 by Class Action Defense

California Dreaming For Employers: U.S. Supreme Court Orders California State Court of Appeal To Reconsider Denial Of Arbitration In PAGA Case

By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Rebecca S. Bjork

Duane Morris Takeaways: On October 3, 2022, the Supreme Court of the United States granted certiorari, reversed, and remanded a case seeking review of a motion to compel arbitration in a California Private Attorney General Act (“PAGA”) labor law case entitled Dolgen California, LLC v. Galarsa, No. 21-1444 (U.S. Order List, Oct. 3, 2022). Granting Dollar General’s specific request, the Supreme Court ordered the California Court of Appeal to reconsider its decision affirming a trial court’s denial of the company’s motion to compel arbitration. That court held that the waiver of representative actions in the plaintiff’s arbitration agreement was unenforceable under California law. This is only one of several cases pending in California courts involving arbitration agreements that waive an employee’s right to bring a representative action under the PAGA that are being revisited in light of the U.S. Supreme Court’s ruling in Viking River Cruises, Inc. v Moriana (No. 20-1573, June 15, 2022). As a result, employers will soon have a better understanding of how PAGA representative action waivers will be interpreted in California within the now-controlling framework of the Federal Arbitration Act.

The Holding In Viking River Cruises, Inc. v. Moriana

Earlier this year, on June 15, 2022, the U.S. Supreme Court issued its long-awaited ruling in Viking River Cruises, Inc. v. Moriana. Companies with California-based workforces watched the case closely because it represented an opportunity to clarify the extent to which a court-made rule established by the California Supreme Court back in 2014 could co-exist with the Federal Arbitration Act (“FAA”). The FAA has long been found to favor the enforcement of arbitration agreements, including waivers of class and other representative claims. But the California Supreme Court’s decision made it impossible for class waivers to be enforceable under state law as a result of its decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 387-88 (2014) (holding that a “PAGA claim lies outside the [FAA]’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship,” but is instead “a dispute between an employer and the state”).

In a complex and lengthy opinion, the Supreme Court held in Viking River that “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.” (Slip Op. at 20.) “This prohibition on contractual division of PAGA actions into constituent claims unduly circumscribes the freedom of parties to determine ‘the issues subject to arbitration’ and ‘the rules by which they will arbitrate,’ and does so in a way that violates the fundamental principle that ‘arbitration is a matter of consent[.]’” (Id. at 18 (citations omitted).) In short, representative PAGA claims can now be subject to waiver in an arbitration agreement because “state law cannot condition the enforceability of an arbitration agreement on the availability of a procedural mechanism that would permit a party to expand the scope of the arbitration by introducing claims that the parties did not jointly agree to arbitrate.” (Id.)

Dollar General’s Petition For Certiorari

Dollar General filed a petition for certiorari while Viking River was pending, expressly asking the Supreme Court to hold the petition pending a decision in that case. It requested that once Viking River was decided, the Supreme Court should at that time grant Dollar General’s petition, vacate the California Court of Appeal decision below, and remand the case to that court for reconsideration in light of Viking River (known to Supreme Court practitioners as a “GVR” order). The facts in the Dollar General case are strikingly similar to those at issue in Viking River, and the company’s petition described the question presented as “Does the FAA require enforcement of a bilateral arbitration agreement providing that an employee cannot assert representative claims, including under PAGA?”

The U.S. Supreme Court’s GVR Order

On October 3, 2022, the Supreme Court did what Dollar General expressly asked it to do. (See Order List, Oct. 3, 2022.)

As is typical with GVR orders, there is no explanation of the reasoning behind the order, except that the California Court of Appeal is instructed to apply the reasoning of Viking River on remand. The California Court of Appeal now will soon reconsider its affirmation of the trial court’s denial of Dollar General’s motion to compel the plaintiff’s claim to an individual, non-representative arbitration proceeding.

Implications For Employers

Employers have long known that if they have operations in California, special attention must be paid to state law provisions that impose restrictions on employment practices unlike those in any other state. Now that the U.S. Supreme Court has ruled that the FAA preempts the court-made rule of Iskanian that precluded splitting representative PAGA claims from individual claims, it is likely that California courts will modify their enforcement of representative action waivers in arbitration agreements. But because this is California, wary employers would be wise to stay tuned for further developments in this rapidly changing area of the law.

October 10, 2022October 17, 2022 by Class Action Defense

Don’t Mess With Texas: Federal Judge Rules That The EEOC’s Guidance On LGBTQ Employees And Bostock Is Invalid

By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Rebecca S. Bjork

Duane Morris Takeaways: On October 1, 2022, in Texas v. EEOC, No. 21-CV-194 (N.D. Tex. Oct. 1, 2022), Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ruled that the EEOC’s guidance on Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2021), was invalid and unlawful. The EEOC’s guidance sought to delineate workplace protections for LGBTQ employees relative to general workplace policies, including obligations related to dress codes, use of bathrooms, and preferred pronouns. The Court agreed with the legal challenge mounted by the State of Texas over the Commission’s guidance. While the final chapter on these issues is far from written, employers should consider the ruling in Texas v. EEOC as part of a broader analysis of EEOC workplace regulations and the ever expanding array of issues involving appropriate workplace personnel policies.

The EEOC’s Guidance

On June 15, 2021, the Commission issued guidance on its interpretation of Bostock on the one-year anniversary of the U.S. Supreme Court’s ruling. Bostock, in a 6 to 3 decision, held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on their sexual orientation or gender identity.

The EEOC’s guidance on Bostock – which can be accessed here – asserted that employers were obligated to accommodate LGBTQ employees regarding dress codes, use of identifying pronouns, and bathrooms and locker rooms. Critics of the Commission claimed that the guidance went far beyond the holding in Bostock and constituted impermissible rulemaking.

The Legal Challenge Of Texas

In what only can be deemed an extraordinary legal challenge, the Texas Attorney General sued the EEOC and sought declaratory and injunctive relief to invalidate the EEOC’s guidance and enjoin its enforcement and implementation. The lawsuit also challenged an analogous set of regulations issued by the U.S. Department of Health and Human Services (“HHS”). After rulings on procedural issues, Texas brought a motion for summary judgment on the grounds that: (i) the guidance of both agencies was inconsistent with the law; (ii) was arbitrary and capricious; and (iii) constituted improper rulemaking without following applicable notice-and-comment rulemaking procedures under the Administrative Procedure Act (“APA”).

The Court’s Decision

Judge Kacsmarky agreed with Texas, rejected the positions of the EEOC and the HHS, and granted summary judgment against the agencies.

The key aspect of the decision focused on the reach of Bostock. Judge Kacsmarky opined that the U.S. Supreme Court confined its ruling to a holding that Title VII banned workplace bias due to an employee’s “homosexual or transgender status.” Id. at 6. In analyzing Bostock, Judge Kacsmarky determined that the EEOC and the HHS misread the Supreme Court’s opinion. Id. at 7-14. He held that Bostock did not extend to “correlated conduct,” such as dress, bathrooms, use of pronouns, or healthcare practices. Id. at 4.

Based on this reasoning, Judge Kacsmarky ruled that the EEOC and HHS violated Title VII and the APA by issuing what he deemed the equivalent of substantive, legislative rules through improper procedures. As a remedy, he declared the guidance unlawful, set it aside, and awarded attorneys’ fees and costs to Texas.

Implications For Employers

The ruling in Texas v. EEOC reflects a judicial finding that the Commission acted inappropriately in attempting to push the legal envelope in terms of how Bostock should be read to obligate employers to accommodate LGBTQ employees in the workplace. That said, the ruling is unlikely to shut down the Commission’s efforts to push for expansive interpretations of the boundaries of Title VII. Employers can expect the Commission to pursue other test cases and litigate over the interpretation of Bostock for the foreseeable future. Furthermore, the Commission is apt to appeal the ruling in Texas v. EEOC to the U.S. Court of Appeal for the Fifth Circuit. Stay tuned!

October 5, 2022October 17, 2022 by Class Action Defense

Pennsylvania Federal Court Denies Motion For Conditional Certification Of Wage & Hour Collective Action

By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Alex W. Karasik

Duane Morris Takeaways: In Lincoln v. Apex Human Services LLC, Case No. 22-CV-341, 2022 U.S. Dist. LEXIS 175714 (E.D. Pa. Sept. 28, 2022), Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania denied Plaintiff’s motion for conditional certification a proposed collective action of over 100 registered nurses who alleged they were misclassified as independent contractors and owed unpaid overtime. Since conditional certification is typically granted at a rate of nearly 80% in wage & hour collective actions, the employer-friendly ruling in Lincoln is well-worth a read by corporate counsel. The decision can be used by businesses to defend against FLSA misclassification claims where the named plaintiff fails to establish that they are similarly-situated to other proposed collective members.

Case Background

Plaintiff sued Defendants under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the Pennsylvania Minimum Wage Act, 43 P.S. § 333.104 et seq., and the Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.1, et seq. She alleged that Defendants misclassified registered nurses (“RNs”), licensed practical nurses (“LPNs”), and other providers as independent contractors, thereby denying them required overtime pay and other employee benefits. Id. at *1. Plaintiff moved for conditional certification and judicial notice under Section 216(b) of the FLSA.

The Court’s Decision

The Court denied Plaintiff’s motion for conditional certification.

The Court explained that Third Circuit case law has developed a two-tiered test to determine whether employees are similarly-situated for purposes of allowing an FLSA representative action to proceed. Id. at *2 (citations omitted). Relevant here, the court first conducts a preliminary inquiry into whether employees are similarly-situated. Id. at *2-4.

Plaintiff argued that conditional certification was appropriate for three reasons, including: (1) all current workers were subject to Defendants’ uniform policy of failing to pay overtime; (2) all former workers were subject to Defendants’ uniform policy of failing to pay overtime; and (3) Plaintiff met the lenient standard of showing that workers were similarly, if not identically, situated. Id. at *4-5. To support her arguments, Plaintiff offered three types of evidence, such as her signed independent contractor agreement; texts messages between the plaintiff and one individual Defendant; and one pay stub from 2019 and four pay stubs from 2020 showing that taxes were not withheld from her pay. She claimed that this evidence was sufficient to meet the standard for conditional certification, which only requires a plaintiff to show “modest evidence, beyond pure speculation,” that the class members are similarly-situated. Id. at *5 (citation omitted).

The Court rejected Plaintiff’s position. It held that Plaintiff failed to present any evidence showing that she was similarly-situated to other proposed collective action members. Citing three other cases from the Eastern District of Pennsylvania, the Court noted that the plaintiffs in those cases presented some evidence, typically through affidavits or declarations, of how their individual situation was like that of other proposed collective members. Id. at *6. Here, Plaintiff merely alleged that there are over 100 Apex workers who were misclassified as independent contractors and denied overtime pay. The Court opined that the evidence Plaintiff provided was specific only to her situation, such as her own contract, text messages and pay stubs. As a result, the Court determined that Plaintiff failed to provide even minimal evidence that she and the proposed collective members were similarly-situated. Id. at *6.

For these reasons, the Court denied Plaintiff’s motion for conditional certification.

Key Takeaways For Employers

In FLSA misclassification cases, it is not uncommon for plaintiffs to seek the Court‘s approval to pursue these matters as collective actions. In situations where a named plaintiff fails to provide limited (or any) evidence regarding how they are similarly-situated to other proposed collective members, employers can use the decision in Lincoln to defend against motions for conditional certification. This strategy can result in a court prohibiting the named plaintiff from disseminating notice, or in other words, reduce a case from having potentially hundreds of plaintiffs down to a single plaintiff.

September 30, 2022October 17, 2022 by Gerald L. Maatman, Jr.

The EEOC Is At It Again: FY 2022 Finishes Off With September Surge Of Filings

By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Alex W. Karasik

Duane Morris Takeaways: In FY 2022, September was a busy month for EEOC-Initiated litigation. In FY 2021, the EEOC’s litigation enforcement activity showed signs of recovering from the lingering COVID-19 pandemic and the total number of case filings increased from the low of 33 in 2020, giving rise to what was anticipated to be a very busy FY 2022. True to its pre-COVID history, the EEOC ended its year with a surge of last-minute lawsuits.

This year, there were 39 lawsuits filed during September as of the publishing of this blog post (down from the 59 filed in September of FY 2021, however, it constituted a significant increase from 2020).

Cases Filed By EEOC District Offices

In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most actively filing new cases this September. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district office.

The most noticeable trend of FY 2022 is the filing dip in some key regions compared to past years. The New York district office had 6 filings in FY 2021 and only 2 in 2022. The California district offices in San Francisco and Los Angeles, which combined for 13 new filings last year, declined in FY 2022, falling to only 4 total filings, including San Francisco’s fall from 6 to 1. The Indianapolis district office was in the middle of the pack with 4 filings this year. Philadelphia led the way in FY 2022 with a total of 7 filings. Miami and Phoenix also had 4 each, Memphis had 3, and Dallas, Houston, and St. Louis all had 2 total filings.

Analysis Of The Types Of Lawsuits Filed In FY 2022

We also analyzed the types of lawsuits the EEOC filed throughout the month, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities.

When considered on a percentage basis, the distribution of cases filed by statute in September remained roughly consistent compared to FY 2021 and FY 2020. Title VII cases once again made up the majority of cases filed, making up 69% of all filings (a bit higher than the 62% in FY 2021 and 60% in FY 2020). ADA cases also made up a significant percentage of the EEOC’s September filings, totaling 18%, although down from the 36% in FY 2021. There were also 3 ADEA cases filed in September, after only one age discrimination case filed in the entire FY 2021.

The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.

March 2022 Release Of Enforcement Statistics

On March 28, 2022, the EEOC released its fiscal year 2023 budget justification and fiscal year 2021 performance report (“APR”). The APR is a review of the results of the EEOC’s litigation goals and performance from FY 2021 and the FY 2023 budget describes how funds will be allocated. The EEOC put out a proposed 2023 budget of $464,650,000.

FY 2021 APR

The APR described a successful year in the EEOC’s eyes in terms of delivering on its strategic initiatives, including securing $485 million in monetary relief for over 15,000 alleged victims of employment discrimination, resolving a total of 138 merit lawsuits, reducing the inventory of appellate cases by 9.1%, and have a significant percentage of its resolutions in district courts achieve a “favorable result.” Comparing the monetary recovery to previous years, the EEOC recovered $535.5 million in FY 2020, $486 million in FY 2019, and $505 million in FY 2018.

The EEOC also continued working towards its goals in community outreach, education, and technical assistance, and hired predominate front-line positions.

FY 2023 Budget Justification

Moving into 2023, the EEOC’s budget constitutes a $60.160 million increase from 2021, and focuses on three key areas including providing racial justice and eliminating systemic discrimination of all protected bases, pay equity, and the civil rights impact of the COVID-19 pandemic. The EEOC also announced three new programs, including the Hiring Initiative to Reimagine Equity (HIRE), which aims to expand employment opportunities as the nation recovers from the pandemic; a joint anti-retaliation initiative with the U.S. Department of Labor and the National Labor Relations Board; and an initiative to ensure that employment-related artificial intelligence and algorithmic decision-making tools comply with federal civil rights laws.

Key Employer Takeaways

FY 2022 was a year of new leadership and structural changes at the EEOC. With a vastly increased proposed budget, it is more crucial than ever for employers to take heed in regards to the EEOC’s strategic priorities and enforcement agendas.

September 27, 2022 by Gerald L. Maatman, Jr.

Biometric Privacy, Plasma & Preemption: Illinois Federal Court Issues Another Pro-Plaintiff Ruling

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Alex W. Karasik

Duane Morris Takeaways: In Vaughan v. Biomat USA, Inc. et al, Case No. 20-CV-4241, 2022 U.S. Dist. LEXIS 168497 (N.D. Ill. Sept. 19, 2022), Judge Marvin Aspen of the U.S. District Court for the Northern District of Illinois issued the latest plaintiff-friendly decision under the Illinois Biometric Information Privacy Act (“BIPA”), holding that federal regulations relating to plasma collection do not preempt the BIPA. For employers looking to craft novel defenses in response to the recent onslaught of biometric privacy class action litigation, this ruling represents another impediment to a potential defense strategy. Continue reading “Biometric Privacy, Plasma & Preemption: Illinois Federal Court Issues Another Pro-Plaintiff Ruling”

September 22, 2022July 5, 2023 by Gerald L. Maatman, Jr.

New York Federal Court Grants Class Certification In Pay Discrimination Litigation

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Michael DeMarino

Duane Morris Takeaways – In Chalmers, et al. v. City of New York, 22 Civ. 3389 (S.D.N.Y. Sept. 19, 2022), Judge Analisa Torres of the U.S. District Court recently certified a Title VII class action alleging race discrimination in pay for various positions involving fire protection inspectors in the City’s Fire Department. The decision in Chalmers is an important one for employers, as shows how plaintiffs’ class action lawyers are using certification theories to “work around” the seemingly impregnable barrier to class certification based on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Corporate counsel are well-served to heed the lessons of Chalmers in crafting their approaches to dealing with workplace class action litigation. Continue reading “New York Federal Court Grants Class Certification In Pay Discrimination Litigation”