Employment Law Observer Insight & Commentary on Employment & Agency Issues

Peter Felsenfeld

Photo ofPeter Felsenfeld Peter J. Felsenfeld is a litigation associate in the San Francisco office of Barger & Wolen where his experience includes a broad range of civil litigation matters before both state and federal courts, particularly in the areas of insurance coverage, reinsurance, contractual disputes, bad faith liability and general business litigation. In addition, Mr. Felsenfeld is involved in areas of legal ethics, including attorneys’ fees litigation and consultation.

Posts by Peter Felsenfeld

After NLRB v. Canning: A Practical Guide For Employers

Posted in Case Updates, NLRB, United States Supreme Court

The Supreme Court’s decision last week in NLRB v. Canning left many employers scratching their heads – and with good reason. Sure, the unanimous ruling served as a rebuke to the Obama Administration, and hundreds of National Labor Relations Board (“NLRB”) rulings expanding employee rights and protections have been wiped off the books.  But what… Continue Reading

Supreme Court Strikes NLRB Recess Appointments

Posted in Case Updates, NLRB, United States Supreme Court

The United States Supreme Court has struck down President Obama’s controversial 2012 nominations to the NLRB, holding that the President violated the Constitution by using his recess appointments power when the Senate was still in session. The ruling in NLRB v. Noel Canning calls into question hundreds of mostly pro-union NLRB decisions rendered by the improperly… Continue Reading

Employment Discrimination Plaintiff Cannot Change Legal Theories at Trial

Posted in California Court of Appeal, Case Updates, Fair Employment and Housing Act

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc., the Second Appellate District held that a plaintiff whose pleadings alleged intentional employment discrimination could not assert a disparate impact theory for the first time at trial. The case highlights the distinction between “disparate treatment” and “disparate impact” theories under California’s Fair Employment and Housing Act… Continue Reading

Rite Aid Cashiers Can Proceed with Class Action

Posted in California Court of Appeal, Case Updates, Class Actions

In Hall v. Rite Aid Corp., the Fourth Appellate District reversed the trial court’s decertification of a putative class of cashiers who challenged their employer’s policy of requiring them to stand while checking out customers. The case is the latest in a series of California appellate opinions holding that a determination on class certification must… Continue Reading

Compliance: Employers closely watching Supreme Court’s ruling in Canning

Posted in NLRB, Opinion, United States Supreme Court

The Court’s ruling will likely define the scope of the president’s recess appointments power for future administrations. It’s easy to identify recess in an elementary school day: The bell rings, the kids tumble out of class and the yard fills with playful shrieks and laughter. Not so with Congress. The U.S. Senate’s chambers may be… Continue Reading

Obama Administration Relaxes Employer Mandate

Posted in Affordable Care Act

The moving target that is the Affordable Care Act’s employer mandate keeps on moving. The Treasury Department today issued a rule relaxing important employer requirements under the ACA, foremost among them to postpone the mandate for businesses with between 50 and 99 employees until 2016. This is the second major postponement of the ACA’s employer… Continue Reading

Obama Administration Bends Individual Mandate Rules

Posted in Affordable Care Act

With the deadline to select health coverage just days away, the Obama administration has given an early Christmas present to individuals whose policies were cancelled because of the Affordable Care Act (“ACA”). Those individuals will be temporarily “exempted” from the ACA’s individual mandate, according to a bulletin issued late Thursday from the Department of Health… Continue Reading

California Restaurant Managers Get Second Chance at Class Action

Posted in California Court of Appeal, Case Updates, Class Actions, Exempt Status, Wage & Hour

In Martinez v. Joe’s Crab Shack Holdings, the California Court of Appeal for the Second Appellate District reversed an order denying class certification to a group of managerial restaurant employees allegedly misclassified as exempt. The case was brought by lower-level managers at Joe’s Crab Shack restaurants throughout California who complained that they performed many of… Continue Reading

California Will Not Allow Health Insurers to Reinstate Coverage

Posted in Affordable Care Act

More than a million California residents whose health plans were cancelled under the Affordable Care Act, a.k.a. Obamacare, will not be able to keep their existing coverage, despite President Obama’s directive that insurers keep such plans available for another year. The decision about whether to implement the president’s administrative “fix” rested with Covered California, the… Continue Reading

Obamacare Chaos: Two Lessons for Employers

Posted in Affordable Care Act, Opinion

Dysfunctional websites. Low enrollment numbers.  Public outrage over cancelled health policies.  Mea cuplas.  A presidential administrative “fix.”  Competing Congressional solutions.  Finger pointing.  It’s enough to make your head spin! As an employer, you may be wondering what the recent flurry of activity surrounding the Affordable Care Act (a.k.a. Obamacare) means for your business.  This post… Continue Reading

Senate Passes LGBT Workplace Anti-Discrimination Bill

Posted in Gender Bias

The U.S. Senate passed a bill last week that would provide workplace protections to gays, lesbians and transgender individuals. The so-called “Employment Nondiscrimination Act” passed the Democratic-led chamber on a 64 to 32 vote.  Arizona Sen. John McCain and Utah’s Orrin Hatch were among the ten Republicans who supported the measure. The bill would make… Continue Reading

Pro-Union Attorney to Head NLRB

Posted in News, NLRB

The U.S. Senate has confirmed union lawyer Richard Griffin to serve as general counsel for the National Labor Relations Board (“NLRB”). The board’s general counsel is instrumental in determining when and how actively to pursue claims against employers.  Mr. Griffin’s appointment, which passed on a near-party line vote, assures that the NLRB will continue its… Continue Reading

Courts May Certify Class Claims Where Damages Differ

Posted in California Court of Appeal, Case Updates, Class Actions, Meal & Rest Break, Wage & Hour

In Benton v. Telecom Network Specialists, Inc., the California Court of Appeal for the Second Appellate District affirmed that employee wage and hour and meal break cases may be suitable for class certification even where employees experience diverse damages. The case supports the proposition that courts considering whether common issues predominate for class certification purposes… Continue Reading

EEOC Ordered To Pay Attorney’s Fees and Costs After Bogus Discrimination Case

Posted in 6th Circuit Court of Appeals, Case Updates, EEOC

The Sixth Circuit has ordered the Equal Employment Opportunity Commission (“EEOC”) to pay more than $750,000 in attorney’s fees and costs for pursuing a frivolous employment discrimination case. The case, EEOC v. Peoplemark, is the latest in a cluster of judicial reproaches to the EEOC’s policy of aggressively targeting employers for conducting criminal background checks… Continue Reading

Arbitration Agreement Dos and Don’ts

Posted in Mandatory Arbitration

We recently posted a summary of Peng v. First Republic Bank, a case discussing the validity of an arbitration agreement contained in an employment contract.  Peng is favorable for employers because the court there held that the compulsory arbitration agreement at issue was neither procedurally nor substantively unconscionable. Peng addressed the narrow question of whether… Continue Reading

Employer’s Arbitration Agreement Passes Muster

Posted in Hostile Work Environment, Wrongful Termination

In Peng v. First Republic Bank, the California Court of Appeal for the First Appellate District rejected an employee’s contention that a company’s standard arbitration agreement was unconscionable. Peng stands for the proposition that most boilerplate arbitration agreements contained in employment contracts will be upheld unless the employer enforces them in bad faith.  For example,… Continue Reading

Obamacare Small Business Exchange Delayed

Posted in Affordable Care Act

Mounting technical delays are complicating the implementation of the Affordable Care Act, aka Obamacare. The website Politico is reporting that the Obama Administration intends to delay a portion of Obamacare aimed at small businesses. The delay involves online enrollment for small business health exchanges run by the federal government known as “SHOP” exchanges, Politico reports. … Continue Reading

Are You Ready For Obamacare’s Employee Notice Requirements?

Posted in Affordable Care Act

An important deadline for employers regarding the Affordable Care Act, or Obamacare, is just around the corner. By October 1, 2013, employers must notify employees of the coverage options available on health insurance marketplaces or exchanges.  The requirement applies to companies with one or more employees and not less than $500,000 in annual business –… Continue Reading

No Anti-SLAPP Protection For Statements To Coworkers

Posted in California Court of Appeal, Case Updates, Fair Employment and Housing Act, Hostile Work Environment, sexual harassment

In Cho v. Chang, the California Court of Appeal, Second Appellate District held that an employee’s statements to coworkers about alleged discrimination were not protected activities triggering special protection under California’s anti-SLAPP statute. The court further held that an anti-SLAPP motion can be granted as to protected activities and denied as to unprotected activities combined… Continue Reading

Proposed Employer Tax Rules Available For Obamacare

Posted in Affordable Care Act

The U.S. Department of the Treasury and the Internal Revenue Service have published proposed rules establishing reporting requirements for employers and insurers under the Affordable Care Act (“ACA”), or Obamacare. Under the ACA, employers with 50 or more full-time employees must offer health insurance or pay a penalty.  The new proposed rules flesh out how… Continue Reading

It Just Got Easier To Remove Class Actions

Posted in 9th Circuit Court of Appeals, Case Updates, Class Actions, Wage & Hour

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. Rodriquez has two important takeaways for parties litigating class actions: The lead plaintiff cannot prevent a removing defendant from satisfying the Class… Continue Reading

Employee Must Exhaust Administrative Remedies Before Suing Employer

Posted in California Court of Appeal, Case Updates, Retaliation

In MacDonald v. Superior Court, the court held that an employee must exhaust statutory administrative remedies before filing suit against an employer. MacDonald worked for the State of California and the California State Assembly in San Joaquin County.  According to his complaint, MacDonald was fired two weeks after complaining that a supervisor had been smoking… Continue Reading

Despite Sovereign Status Indian Tribe Must Follow NLRA

Posted in NLRB

In a decision that could have ripple effects nationwide, the National Labor Relations Board (“NLRB”) has held that federal labor protections apply to an Indian tribe’s casino operations in Oklahoma. Workers at the Winstar World Casino, in conjunction with the Teamsters, initiated the NLRB action because the Chickasaw Nation, a federally recognize tribe, refused to… Continue Reading