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Third Thursday – Crowell & Moring’s Wage Hour Briefing May 24, 2012 Mark Romeo Shane Sagheb Tom Gies If you are having trouble hearing the audio portion of the presentation, please call © Crowell & Moring 2012
Andrew Bagley DC Shane Sagheb LA Mark Romeo Orange County Wendy Sugg Orange County Ira Saxe NYC Trina Fairley-Barlow DC Thomas Gies DC Christopher Calsyn DC. THIRD THURSDAY Crowell & Moring’s Wage Hour Briefing MEET THE TEAM: © Crowell & Moring 2012
Life after Brinker Shane Sagheb © 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 © Crowell & Moring 2012
The Ongoing Debate about Class Action Arbitration Mark A. Romeo © Crowell & Moring 2012
THE ISSUE: CAN YOU HAVE A CLASS ACTION WAIVER IN A WAGE AND HOUR CASE? © Crowell & Moring 2012
WHY IS IT IMPORTANT? © Crowell & Moring 2012
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.” © Crowell & Moring 2012
What Some Courts Are Saying about Class Action Waivers in Wage and Hour Litigation after Concepcion »LaVoice v. UBS Financial Services, Inc., 2012 WL (S.D.N.Y. Jan. 13, 2012) »Zachary Morvant v. P.F. Chang’s China Bistro, Inc., 2012 WL (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 (N.D. Cal. May 7, 2012) Herrington v. Waterstone Mortgage Corp., 2012 WL (W.D. Wis. Mar. 16, 2012) © Crowell & Moring 2012
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 © Crowell & Moring 2012
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 © Crowell & Moring 2012
Third Thursday – Crowell & Moring’s Wage Hour Briefing June 21, 2012 The webinar will begin shortly. A recording and the slides will be sent to you after.
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