Labor and Employment
Technological innovations have introduced a host
of new legal questions to the employment law
area. Thanks to computer and mobile technology,
workforces are increasingly virtual and global,
creating new tensions in labor law compliance, particularly
when it comes to wage-and-hour requirements. Furthermore,
the use of social media by employees, employers, and labor
unions continues to raise new practical and legal issues.
Our panel of experts from Northern and Southern California
discusses these trends, as well as notable cases such as Dukes
v. Wal-Mart Stores, Inc . (603 F.3d 571 (9th Cir. 2010) ce rt
granted, 131 S.Ct. 795 (2010)), Laster v. AT&T Mobility LLC v.
Concepcion, (584 F.3d 849 (9th Cir. 2009), cert granted sub
nom. AT&T Mobility LLC v. Concepcion, 130 S.Ct. 3322 (2010)),
and Brinker Restaurant Corp. v. Superior Court (165 Cal. App.
4th 25 (2008)(now pending before California Supreme Court)).
They are Steven Blackburn and Betsy Johnson of Epstein,
Becker & Green; Dan McCoy and Victor Schachter of Fenwick
& West; Garry Mathiason of Littler Mendelson; Ken Sulzer of
Seyfarth Shaw; and Pam Teren of the Teren Law Group. Califor-
nia Lawyer moderated the roundtable, which was reported by
Laurie Schmidt of Barkley Court Reporters.
MODERATOR: What are the legal issues addressed by
recent wage-and-hour litigation and court decisions?
BLACKBURN: One important decision pending before
the California Supreme Court—among several in the
wage-and-hour law arena that are going to have signifi-
cant impact—is Sullivan v. Oracle Corp. (557 F.3d 979
(9th Cir. 2009)(question certified to California Supreme
Court)). The court will decide whether a California-based
employer must apply the California Labor Code to out-of-
state employees when they travel into the state on busi-
ness. The nearly uniform practice, of course, has been for
employers to pay employees according to the law of the
state in which they reside, even if they spend substantial
time in California. The logistical aspects of requiring an
employer to apply different wage-and-hour principles to
employees who travel into a state for a short period are
immense. But it is easy to see good arguments on both
sides. For example, looking at laws related to smoking
in the workplace, arguably it’s reasonable to assume
that out-of-state employees who work temporarily in
California could be bound by the state’s anti-smoking
provisions. Should wage-and-hour laws similarly apply,
depending upon where the work is being performed?
SCHACHTER: Oracle is just one case addressing our
increasingly mobile workforce. The court in Narayan v.
EGL, Inc. (616 F. 3d 895 (9th Cir. 2010)) took another
approach. That case involved a Texas company with
California employees who worked in a California facility.
The Ninth Circuit found that for employees located in
California, the California Labor Code applies, and it dis-
regarded a Texas choice-of-law provision in the employ-
ment agreements.
In the case of Holliday v. Lifestyle Lift, Inc. (No. 09-
4995 (N.D. Cal. filed Oct. 20, 2010)), executives were
charged with creating a policy denying overtime to all
non-exempt workers. The California employees sued an
executive, a resident in Michigan, in California courts.
The court ruled there was personal jurisdiction because
there were sufficient contacts between the executive and
California through phone calls and visits.
JOHNSON: On the flip side, I have a client, a California-
based nationwide company that had an employee who
relocated back East, where the firm has offices. But the
employee still did most of his work in California. In lay-
ing off the employee, the question was: Is he a New York
employee subject to New York law regarding payout of
vacation and termination, or is he subject to California
law? The mobile workforce does create issues that the
laws were never intended or drafted to deal with.
MATHIASON: These cases illustrate that we have employ-
ment laws—especially wage-and-hour laws—often manu-
factured decades ago that are being contorted to fit the
current environment. A growing part of the workforce
in California may never set foot in California. We have
typically applied the law of the physical location of the
individual performing the work. Increasingly, technology
is making this standard obsolete. With legislative action
politically deadlocked, courts are being called upon to
balance the new world of work with the original intent
of the statutes.
SULZER: A number of wage-and-hour issues arise in the
telecommuting context as well, particularly as we wait
for the Brinker decision regarding meal and break peri-
ods, and whether they must be “ensured” or “provided.”
On the flip-side of this, there is a new kind of class
action involving employees who are the least mobile—
class actions under the labor code related to “suitable
seating” for workers. Bright v. 99 Cent Only Stores (189
Cal. App. 4th 1472 (2010)) brought this issue to our
attention, and now a plaintiff can sue under the Private
Attorney General Act of 2004 (Cal. Lab. Code §§ 2698–
2699.5) for recovery. We’ve seen this in the retail and
hospitality industries, but now other industries are con-
cerned about exactly what this trend means. A number of
them are looking for an ergonomic defense whereas, in
the hospitality or retail industry, there’s another defense,
which is that if you are customer facing, standing—not
sitting—is part of the job.
McCOY: You’ll also see these cases in white-collar work-
ing environments, such as biotech labs. Sophisticated
counsel will take these cases into the high tech sector
in the same way that overtime misclassification cases
evolved from retail and fast food to high tech.
JOHNSON: The seating cases are an example of the
plaintiffs bar getting more creative with the types of
claims they are bringing since the low-hanging fruit has
CALLAWYER.COM April 2011 43
EXECUTIVE SUMMARY
ROUNDTABLE
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