Barrister Boyajian's Blog

Should employers be allowed to insist that disputes be handled in one-on-one arbitration, or should employees always be permitted to bring their claims in class or collective actions?  This issue was raised in the case titled Epic Systems Corp. v. Lewis (together with other cases which raised the same issue: Ernst & Young LLP et al. v. Morris et al., and National Labor Relations Board v. Murphy Oil USA, Inc. et al.). The workers' argument was that such arbitration agreements violate employees' rights to act in concert and violates the NLRA  (National Labor Relations Act).  The Supreme Court ruled 5 to 4 today that companies may require workers to accept individual arbitration for wage and other workplace disputes rather than banding together in collective actions.  US Supreme Court Justice Gorsuch wrote that as a matter of policy these questions are surely debatable, but as a matter of law, the Federal Arbitration Act requires courts to enforce arbitration a...

Can 100 hugs from your supervisor over the course of 12 years amount to sexual harassment?  AN OVERVIEW OF SEXUAL HARASSMENT Sexual harassment can be verbal, physical or visual.   There are two types. (1) Quid pro quo, AKA, tit for tat, where decisions are conditioned on sexual favors. (2) Hostile Environment, where an offensive work environment is created by conduct such as staring at someone, making sexual comments and jokes, or physically touching or blocking a person in an intimidating manner.   A hostile work environment must be sufficiently extreme to change the terms and conditions of employment.  All verbal or physical harassment in the workplace is not actionable.  It must be severe or pervasive.  To be deemed pervasive, the incidents of misconduct must be sufficiently continuous and concerted.  A single incident may in some instances support a hostile environment claim depending upon its severity.  The required showing of sev...

On April 30, 2018, the California Supreme Court published a ground-breaking decision in the case of Dynamex Operations West v. Superior Court, Cal. Supreme Ct. no. S222732 , 2018 WL 1999120.  The 85-page opinion is about when a worker may be classified as an independent contractor, as opposed to an employee, under California's Wage Order.   Wage Order 9 was at issue in this case.    Dynamex is a nationwide courier whose drivers were once classified as employees by the company, but were later reclassified as independent contractors in 2004. Such reclassification is often executed by companies in order to generate economic savings at the expense of its employees. For example, in Dynamex , the drivers were required to provide their own vehicles and pay all transportation expenses, maintenance, insurance, taxes, etc. The gist of the decision is this:  If the employer cannot satisfy the ABC test, then the worker is an employee...