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Showing 9 posts in Ninth Circuit.

Everything must go? Dealership's Service Advisors not Exempt from Overtime

Classifying employees as exempt or non-exempt can prove to be an arduous task for some employers. For others, however, the classification is easy, particularly where the state or federal authorities expressly spell out the employees at issue. That still proved problematic for one California employer, however. As demonstrated by this week's Ninth Circuit opinion, even seemingly obvious classifications are not always so.  More ›

Employee’s Failure to Include Discrimination Lawsuit Against Employer in Bankruptcy Schedules Results in Dismissal of Action

An employee of the United States Army alleged that certain adverse employment actions by the Secretary of the Army resulted from discrimination. She filed for Chapter 7 bankruptcy protection, but failed to list the discrimination action as an asset on her bankruptcy schedules. Only when the employer moved to dismiss the action on the ground of judicial estoppel did the employee amend her bankruptcy schedules to add this potential asset. The district court found that judicial estoppel barred her action in that there was no evidence to suggest that her original failure to list the discrimination case as an asset was inadvertent or mistaken. Her case was accordingly dismissed.

The employee appealed, and the Ninth Circuit Court of Appeals affirmed, finding that, in light of the timing of the employee's amendment of her bankruptcy schedules and her choice not to file a declaration explaining her initial error, no reasonable fact-finder could conclude that the omission was inadvertent or mistaken. More ›

Ninth Circuit: Police Officer’s Complaints Regarding Safety Matters are not Protected Speech

In this case, a police officer was removed from his position on the K-9 team after it was determined that he, as well as other officers on the team, had serious performance issues that posed a significant risk to team safety. The officer then brought suit against his employer and various other officers alleging that that he was deprived of his constitutional rights in that he was retaliated against for exercising his free speech rights under the First Amendment. Essentially, the officer claimed that he was terminated because he voiced various concerns about the K-9 team's ongoing safety problems and the accidental discharge of weapons. The matter was tried to a jury, who found unanimously that the officer was retaliated against. The employer moved for a judgment as a matter of law, which was denied. The employer appealed. More ›

Ninth Circuit Allows Parties to Arbitrate Dispute Which had been Litigated for Years

In this recent arbitration decision out of the Ninth Circuit, the employee brought an action against her employer, alleging violations of California’s overtime laws and sought to assert claims on behalf of a class. After several years of litigation, the employee moved to certify a class. The District Court granted the motion in part, narrowing the class which the employee represented. In the same order, the court denied the employer's motion to compel arbitration, which was after the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). The District Court found that the employer had waived its right to arbitration by litigating the action for years without raising the binding arbitration clause contained in the employee's employment agreement. More ›

Ninth Circuit: Employees do not Violate the CFFA when Violating Computer use Restrictions

The Ninth Circuit Court of Appeals recently issued an opinion concerning employee violations of the Computer Fraud and Abuse Act. More ›

Ninth Circuit Requires Application of California Law over Contractual Choice of Law Provision

A class of truck drivers filed suit against a home delivery and transportation logistical support services company claiming alleged violations of the Fair Labor Standards Act and various related California labor laws, including failure to pay overtime, failure to pay wages, and unfair business practices. The company defended the claims by arguing that the drivers were not employees, but instead were independent contractors, and pointed to the Independent Truckman's Agreement and Equipment Lease Agreement signed by the drivers. Further, because the Agreement contained a provision indicating that Georgia law was to apply to any disputes relating to the relationship, the company claimed that Georgia law confirmed that the drivers were not employees and thus could not maintain their claims. After motion practice and a bench trial, the district court agreed with the company and found that not only did Georgia law properly apply to the dispute, but that under Georgia law, there is a presumption of independent contractor status and that the drivers could not establish the existence of an employer-employee relationship. The Ninth Circuit Court of Appeals, however, disagreed with the trial court's analysis, at least in part, and reversed the decision. The Court of Appeals found that the district court failed to consider whether applying Georgia law would be contrary to fundamental California policies, and whether California had a materially greater interest in the resolution of these issue than did Georgia. Since the Court of Appeals found Georgia law to directly conflict with California law on the presumptions and burdens involved in the consideration of independent contractor status, and because worker protection is a fundamental public policy in California, the application of Georgia law would be improper. Finding that California law applied to the dispute, the case was remanded with instructions for the district court to reconsider the issues in light of California law. You can read more about the Court's decision and why it ultimately determined that the company's choice of law provision and Georgia law did not apply hereMore ›

Ninth Circuit to NLRB: Reconsider Whether Employee’s Profanity-Laced Tirade was Protected Activity

The Ninth Circuit Court of Appeals has decided that an employee's string of "F-bombs" can be equivalent to a threat of actual violence. More ›

Ninth Circuit: Social Workers are not “Learned Professionals” Under FLSA and are Therefore not Exempt From Overtime Requirements

On September 9, 2011, the Ninth Circuit Court of Appeals held that social workers in the state of Washington are not “learned professionals” under the Fair Labor Standards Act and therefore, are not exempt from overtime compensation. More ›

Ninth Circuit Allows Employees to be Prosecuted Under Computer Fraud and Abuse Act for Breach of Employer’s Network Policy

After leaving the company, a former executive search firm employee persuaded former co-workers to provide him with certain information from the company’s databases as it pertained to various candidates and employers, in order to help him set up a competing company. The employer had a computer-use policy that placed clear and conspicuous restrictions on the employees’ access to the system and to the information contained in the system. Specifically, the company had taken considerable steps to protect and ensure the privacy of its confidential data, including assigning unique login credentials to employees, controlling access to the computer systems, and requiring employees to execute confidentiality agreements pertaining to these databases and information. The government indicted the former employee and the two current employees for violations of the Computer Fraud and Abuse Act (CFAA) for knowingly accessing a protected computer without authorization or exceeding authorized access with the intent to defraud. The former employee and current employees argued that they had been authorized to access and use the database and the information, and thus did not violate the CFAA. The U.S. Court of Appeals for the Ninth Circuit held that the employees had violated the criminal statute by accessing the database, obtaining information from that database, and using it in a way that violated the employer’s restrictions. The court found that the employer took considerable measures to protect its information and that the employees knew (by virtue of these written protective measures) that they were not authorized to access the database and information in order to defraud the employer. This ruling demonstrates the importance of having computer-use and electronic-communications policies. Such rules are critical so that employers can protect their trade secrets and confidential information by making employees aware of what access is “authorized” versus “unauthorized.”

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