Third Thursday –Crowell & Moring’s Wage Hour Briefing

May 24, 2012Mark Romeo

Shane Sagheb

Tom Gies

If you are having trouble hearing the audio portion of the presentation, please call 1-877-211-3621.

© Crowell & Moring 2012

© Crowell & Moring 2012

Andrew Bagley

DC

ShaneSagheb

LA

MarkRomeoOrange County

WendySugg

Orange County

IraSaxeNYC

TrinaFairley-Barlow

DC

ThomasGiesDC

Christopher Calsyn

DC.

THIRD THURSDAYCrowell & Moring’s Wage Hour Briefing

MEET THE TEAM:

Life after Brinker

Shane Sagheb

© Crowell & Moring 2012

© Crowell & Moring 2012

Ten Best Practices in Response to Brinker

1. Comply

A. Meal Break rules

B. Rest Break rules

2. Train and Refresh

3. Communicate, Communicate, Communicate

4. Document

5. Adapt to Schedule Changes

© Crowell & Moring 2012

Ten Best Practices in Response to Brinker

6. Obtain Written Waivers from employees who work no more than 6 hours

7. Designate Neutral Party re Complaints and Emphasize No Retaliation

8. Use Wage Statements to inform

9. Audit Time Records

10.Obtain Written Agreement for “on duty” meal breaks

The Ongoing Debate aboutClass Action Arbitration

Mark A. Romeo

© Crowell & Moring 2012

© Crowell & Moring 2012

THE ISSUE: CAN YOU HAVE A CLASS ACTION WAIVER IN A

WAGE AND HOUR CASE?

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WHY IS IT IMPORTANT?

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The Key Components of Concepcion

» Overruled the California Supreme Court decision in Discover Bank.

» Clarified that Section 2 of Federal Arbitration Act (“FAA”) permits agreements to arbitrate to be invalidated by “generally applicable contract defenses” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.”

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What Some Courts Are Saying about Class Action Waivers in Wage and Hour Litigation after Concepcion

» LaVoice v. UBS Financial Services, Inc., 2012 WL 124590 (S.D.N.Y. Jan. 13, 2012)

» Zachary Morvant v. P.F. Chang’s China Bistro, Inc., 2012 WL 1604851 (N.D. Cal. May 7, 2012)

» Hobson v. Murphy Oil USA, Inc., _ F.Supp. 3d _ (S.D. Ala. April 26, 2012)

» Sutherland v. Ernst & Young LLP, 2012 U.S. Dist. LEXIS 5024 (S.D.N.Y. January 17, 2012)

» Mayers v. Volt Management Corp., 203 Cal.App.4th 1194 (Cal. Ct. App. Feb. 2, 2012)

© Crowell & Moring 2012

What Do You Do about the NLRB?

» Issue: Whether class action waivers are invalid in the employment context because the NLRA protects an employee’s right to bring a collective action

» Examples:

• Zachary Morvant v. P.F. Chang’s China Bistro, Inc., 2012 WL 1604851 (N.D. Cal. May 7, 2012)

• Herrington v. Waterstone Mortgage Corp., 2012 WL 1242318 (W.D. Wis. Mar. 16, 2012)

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What Does It All Mean?

» Class action waivers, accompanied by fair arbitration rules, are surviving many legal challenges

» Procedural fairness/ease of arbitration is still key

» Some legal issues remain to be resolved

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Best Practices for Maximizing Enforceability of Arbitration Agreements

» Employer pays arbitration costs (except for equivalent of court filing fee)

» Allow for full remedies under applicable law» Set out the arbitration rules» Make class action waiver explicit and prominent» Do not reserve right to modify agreement unilaterally (or

limit such right to future claims only)» Make the arbitration agreement easy to understand for

laymen