The roller coaster of employer liability under the background check provisions of the Fair Credit Reporting Act (FCRA) recently took an upswing with the California Court of Appeals’ decision in Culberson v. Walt Disney Parks & Resorts.  The Culberson court considered two class claims, both of which are now-familiar spindles ready to prick the fingers of unwitting employers.  First, Culberson alleged that he received a pre-background check notice from Disney that contained extraneous information, in violation of the FCRA’s requirement that the notice be provided in a document that “consists solely of the disclosure” (commonly known as the “standalone … Continue Reading

On Jan. 29, 2019, the 9th U.S. Circuit Court of Appeals, in a strikingly broad decision, raised the bar for employers’ compliance with the Fair Credit Reporting Act (FCRA). In Gilberg v California Check Cashing Stores LLC, the court held that an employer violates the FCRA by including, in a pre-background check notice form, information about a job applicant’s rights under various state laws. This decision will require significant revision of many employers’ FCRA consent forms.

The Gilberg court’s opinion focused on the FCRA’s pre-background check notice requirement, one of several notice and disclosure obligations the FCRA imposes on

Continue Reading

We’ve been monitoring the appellate battles over the enforceability of class- and collective-action waivers in the employment context since September 2016, when we pondered whether circuit splits would land the issue in the Supreme Court.  Since then, our colleagues in the Labor and Employment practice at McGuireWoods have supplied interim reports on the Supreme Court’s grant of certiorari in not one, not two, but three such cases, and on oral argument in those cases last fall.  Click here to read our colleagues’ succinct analysis of last week’s 5-4 decision upholding employee class- and collective-action waivers under the Federal Arbitration … Continue Reading

Los Angeles labor and employment litigators Michael Mandel and Amy Beverlin bring us perspective on three class-action waiver cases currently awaiting decision by the Supreme Court, as well as a potential path forward for class-action waivers in employment contracts.

Everyone is talking about the future of class-action waivers in employment arbitration agreements after the Supreme Court launched its new term this month with oral argument in three closely-watched cases—National Labor Relations Board v. Murphy Oil USA, Inc. (5th Circuit), Epic Systems Corp. v. Lewis (7th Circuit), and Ernst & Young LLP v. Morris (9th Circuit).  In its impending decision, … Continue Reading

 Many class settlement agreements contain confidentiality clauses. How seriously should we take them?

Thornton v. Morgan Stanley Smith Barney, LLC, No.12-CV-298-JED-FHM, 2013 U.S. Dist. LEXIS 151211 (N.D. Okla. Oct. 22, 2013), answers the question: seriously indeed.

Thornton itself was not a class action. It was a sex discrimination case. In Thornton, the defendant identified a number of female employees as witnesses that there had not been any sex-based discrimination in its Oklahoma offices. The plaintiff decided to challenge this story by subpoenaing records from the claims administrator for the settlement in Amochaev, a sex discrimination class action involving the … Continue Reading

Those who argue that AT&T v. Concepcion killed the class action must be having an interesting January. Two of the more significant cases so far this year–Compucredit Corp. v. Greenwood (2012) and D.R. Horton, Inc. v. Cuda (NLRB 2012), have involved similar questions about when a defendant can move to compel arbitration in a class action.

But wait, I hear you ask. Didn’t Concepcion decide that issue last year? Well, like with most legal questions, the answer is yes and no. Concepcion held that general statements about state unconscionability law cannot trump the dictates of the Federal Arbitration … Continue Reading

In July 1969, General Telephone Company of the Southwest hired Mariano Falcon, a Mexican-American, as part of minority recruitment effort. Falcon maintained a good employment record until, “[i]n October 1972 he applied for the job of field inspector; his application was denied even though the promotion was granted several white employees with less seniority.” Dissatisfied with being passed over, Falcon filed a charge with the Equal Employment Opportunity Commission, which promptly granted him a right-to-sue letter.

Falcon filed his lawsuit as a class action, alleging discrimination not just in General Telephone’s promotion practices (sensible, since he had been … Continue Reading

In a decision that has already garnered massive press coverage and commentary the Supreme Court yesterday granted certiorari in the case that will be known as Wal-Mart v. Dukes. The 9th Circuit’s opinion affirmed certification of the largest-ever employment class action. (Too large, in Wal-Mart’s opinion.)

The Supreme Court will not review all of the issues involved in the petition for certiorari. It has limited itself to Wal-Mart’s Question 1 (roughly: when can plaintiffs seek Rule 23(b)(2) certification for a class seeking money damages), and has ordered briefing on an additional question:

“Whether the class certification ordered … Continue Reading

One of the peculiarities about class-action practice is how segmented it can be.  Because Rule 23 can apply to many different kinds of class actions–ranging from international human rights violations to the vagaries of various benefits plans–many lawyers will consider themselves "class action experts" even if all they’ve ever worked on are securities cases, or products-liability lawsuits.  

Rule 23 covers far more than just one subject area, something this blog has tried to reflect in its choice of cases.  But sometimes it helps to be able to call on specialists, practitioners who litigate one kind of … Continue Reading

 In the world of class actions, case brought under the Federal Labor Standards Act (FLSA) stand apart from other class actions. Unlike a standard Rule 23 class action, the plaintiff in an FLSA action has the option of filing a class action under Rule 23, a collective action under the FLSA, or both.

What is a collective action? Like a class action, a plaintiff in a collective action trades individual control over her lawsuit for the economies of scale and the bargaining leverage that come with group litigation. But FLSA collective actions follow different procedural rules than Rule Continue Reading