Roxborough, Pomerance, Nye & Adreani, LLP

07/17/2013

CALIFORNIA EMPLOYERS PREVAIL CONCERNING WORKERS COMPENSATION ARBITRATION CLAUSES.

As many of our friends, colleagues and clients know, Roxborough, Pomerance, Nye & Adreani, LLP (“RPNA”) has been leading a fight against various workers compensation carriers’ attempts to enforce unfair and one sided arbitration clauses that are often buried in financing or other “Side” Agreements with employers. Because employers were often forced to travel out of state to arbitrate, and always under the laws of another less favorable jurisdiction, RPNA got involved in legislation requiring mandatory disclosure of these clauses. RPNA also won a published Appellate Decision for one of its clients on this very subject (DMS Facility Services v. Zurich). Now, on July 11, 2013, the California Department of Insurance (“DOI”) announced a settlement of this important subject with various Zurich entities. As a consequence, you may have already read about this and have seen Nick Roxborough quoted in various Trade Journals concerning this exciting development.

Essentially, the DOI’s settlement with Zurich provides that any California Employer, who entered into a deductible or other Side Agreement with Zurich in which there was an Arbitration Clause, can now arbitrate its disputes with Zurich in California without having to travel to Zurich’s home state of Illinois. More importantly, if there is to be an arbitration, the laws of California must apply, rather than the laws of New York or any other state chosen by Zurich to benefit itself. And, for those employers who are already in a dispute with Zurich, they have a choice: Arbitrate in California or have their day in a California court.

As many in the industry are aware, this outcome is something that was obtained only after many years and numerous court battles. But, more importantly, this achievement could not have been possible without the support and confidence of our wonderful clients and key individuals. We, therefore want to take this moment to extend our appreciation and thanks to those who supported and worked with RPNA. This was a team effort at every level for which RPNA will be forever grateful to those who never lost confidence in our ability to prevail against one of the largest international insurance companies in the world.

For a copy of the DOI’s Settlement with Zurich, please contact Lucy Rodriguez at [email protected] and she will be happy to provide you with a copy of this important document.

To the extent you have any questions regarding the above, please feel free to contact Nick Roxborough at [email protected].

http://labusinessjournal.com/news/2013/jul/11/state-companies-win-workers-comp-insurance-dispute/

California companies have won a legal victory as the state regulators forced a national workers’ compensation insurer to stop forcing employers to resolve insurance disputes out of state.

06/13/2013

Recent Wage and Hour Cases

Once again the California appeal courts are stirring up the rules regarding wage and hour laws and the requirements for class actions asserting wage and hour claims. Three recent cases have come down which merit some attention.

In Bluford v. Safeway Stores, Inc., the Court of Appeal discussed rest breaks in the context of an employer’s piece-rate compensation program that did not separately compensate drivers for their rest periods. California law requires employers to provide paid rest breaks to their employees. The employer argued that payment for rest period times was incorporated into their piece-rate compensation formula, but the court held that compensation for rest periods must be separately paid at either the minimum wage or contractual hourly rate and cannot be built in to piece-rate compensation plans.

In Faulkinbury v. Boyd & Associates, Inc. the Court of Appeal ordered class certification on behalf of security guard employees alleging their employer failed to provide meal and rest breaks in compliance with California law. What makes this case news is that the Court of Appeal focused entirely on the employer’s policies and whether or not the policies regarding meal and rest breaks were uniform and consistently applied to a group of employees thereby making such policies suitable for class treatment. This means that it is permissible for courts to look only to an employer’s policies with respect to whether a class should be certified, and even if the “policy” was not necessarily applied to a particular employee, that would only affect damages, and not whether a class should be certified.

Lastly, in Heyen v. Safeway, Inc. the Court of Appeal held that time spent by grocery store managers simultaneously performing tasks that were both exempt and non-exempt (e.g., bagging groceries while instructing subordinate employees) was properly treated as non-exempt. Heyen was not a class action but is important because many employers qualify employees as exempt by classifying time spent performing non-exempt duties as “training” or “instruction” of subordinate employees in order to meet the fifty percent of time devoted to executive or exempt duties required for exempt status. Based on Heyen, any time spent by executive or exempt employees doing non-exempt tasks, even when coupled with exempt tasks, cannot be attributed to exempt duties.

If you have any questions, please do not hesitate to contact us at (818) 992-9999, or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employers’ rights firm, specializing in representing businesses in employment and insurance matters.

03/26/2013

Dear Clients and Friends:

Partner Nick Roxborough was recently asked to join the Advisory Board of the California Organized Investment Network (COIN). COIN strives to serve as a national model providing leadership to increase insurance industry investment in underserved and rural communities throughout California. The Advisory Board assists in supporting leadership to increase the level of insurance industry capital in safe and sound investments that provide fair returns to investors, as well as social benefits to underserved communities. Mr. Roxborough was invited to join COIN's Advisory Board by Insurance Commissioner Dave Jones (2013).

COIN serves as a liaison between insurers and community organizations, and provides a clearinghouse of community development investment information, including a listing of potential investment opportunities. Community organizations seeking investment capital present prospective deals to COIN and appropriate prospective deals are published in the "COIN Investment Opportunity Bulletin." COIN also allocates tax credits for certain investments in Community Development Finance Institutions (CDFIs), that provide financial services to underserved communities.

01/25/2013

On November 8, 2012, Superior Court Judge James Chalfant granted a writ of mandate for Ready Golf Centers against the City of Los Angeles, compelling the Board of Commissioners of the Department of Recreation and Parks to sign a permanent 10 year contract for Ready Golf to operate the driving range and pro shop at the Sepulveda Golf Complex. Ready Golf had operated the Sepulveda Golf Complex for a number of years on an interim contract, and then in a completely open, transparent, and unbiased process, won the Request for Proposal issued by the City in 2007.

Ready Golf was thereafter approved by the Mayor, and a unanimous Los Angeles City Council in December 2009. After City Council approval, the City performed under the contract, in fact even renewing it for another five years. However, the Department never signed the contract. Thereafter, in December 2011, the Department attempted to evict Ready Golf, arguing that it had never signed the permanent contract, and instead was operating under an interim, month-to-month contract.

RPNA sued on behalf of Ready Golf and obtained a preliminary injunction, precluding the Department from evicting them. At the preliminary injunction hearing, the judge urged the City to simply sign the permanent contract. Instead, the Department persisted in fighting. Judge Chalfant put an end to its arguments by stating: “The Board’s President and Secretary have a mandatory, ministerial duty to execute the revised Concession agreement with Ready Golf, which is enforceable by mandamus. The petition for Writ of Mandate is Granted.”

Lead counsel for Ready Golf is RPNA’s Drew E. Pomerance, who was very pleased with the victory, stating: “The Court ruled in favor of Ready Golf on each and every issue, and recognized clearly that once all required approvals were obtained by the Mayor and City Council, that the Board was required to sign the contract. It is shameful that the Department has refused to sign the contract, and during this time of severe budget constraints, it is inexcusable that the City has wasted precious taxpayer dollars by needlessly engaging in this litigation under circumstances where the Department’s own analysts concluded the City would financially benefit by having Ready Golf run the concession.”

If you have any questions, please do not hesitate to contact us at (818) 992-9999, or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employers’ rights firm, specializing in representing businesses in employment and insurance matters.

08/15/2012

Arbitration Clauses Get Tougher to Enforce!

On July 30, 2012, the Court of Appeal ruled that an arbitration agreement in an Employee Handbook was not enforceable even though the employee signed an acknowledgement that he received and read the Handbook, because the acknowledgment did not specifically reference the arbitration clause. In Sparks v. Vista Del Mar Child and Family Services, the plaintiff filed a wrongful termination complaint against his former employer. The plaintiff alleged that he was wrongfully terminated after he complained of various alleged improper practices.

The employer filed a petition to compel arbitration. The employer argued that the plaintiff and all of its other employees had agreed to binding arbitration of employment disputes, because an Arbitration Agreement was included in the Employee Handbook that was distributed to all employees. Defendant argued that the plaintiff was bound by the arbitration clause by signing the “Acknowledgment of Receipt of Employee Handbook.”

The Court stated that the language in the Employee Handbook was informational rather than contractual. For example, the Court criticized language in the Employee handbook stating that “This Handbook is not intended to create a contract of employment…” The Court said it was disingenuous for an employer to, on one hand, claim that the Employee Handbook is not a contract, but on the other hand, claim that an employee acknowledging receipt of the Employee Handbook has contracted to arbitrate any disputes with his or her employer.

The Sparks case is important because many employers include arbitration clauses in Employee Handbooks and simply rely upon acknowledgements or confirmations to enforce them. The Sparks case strongly implies that arbitration clauses should be separate and apart from other “information” contained in an Employee Handbook. However, each employer’s circumstances differ, and requires an individual examination to determine the best way to obtain a valid arbitration agreement with your employees. If you would like more information on how this could affect you, please contact us at (818) 992-9999 or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employer’s rights firm, specializing in representing businesses in employment and insurance matters.

07/11/2012

LOS ANGELES, July 10, 2012 /PRNewswire via COMTEX/ — On Friday, July 6, Los Angeles County Superior Court Judge John S. Wiley awarded $89.7 million in wages, interest and penalties to a cla...

07/09/2012

Darrell Steinberg, Esq. Leads RPNA’s Mediation Practice

Roxborough, Pomerance, Nye & Adreani, LLP is proud to announce that Darrell Steinberg has joined the firm as Of Counsel. Mr. Steinberg, with his outstanding reputation as a problem solver of complex legal challenges, will concentrate his practice on conducting mediations.

In his three decades of public and private service, Mr. Steinberg has crafted groundbreaking solutions to intricate dilemmas pertaining to water, land use, healthcare, civil justice, public safety and education, as well as many other legal and business challenges. Combining a unique ability to actively consider opposing viewpoints and to analyze difficult and convoluted issues, Mr. Steinberg is known for using innovative ideas and a tenacious style to assist parties in finding a less expensive and fair solution to a given dispute. By consistently finding intersections of common interest among competing and adverse parties, Mr. Steinberg has succeeded throughout his career in devising creative solutions to extraordinarily complex challenges.

Mr. Steinberg has actively practiced law in the private sector with Hanson Bridgett LLP, and has served as both a mediator and an Administrative Law Judge. A native of San Francisco, Mr. Steinberg earned his Bachelor’s degree in economics from UCLA, and his JD degree from the UC Davis School of Law.

Mr. Steinberg is available to conduct mediations throughout California on challenges pertaining to the broad spectrum of commercial disputes. He can be reached by telephone at 818.992.9999, or by email at [email protected].

06/15/2012

Arbitration Agreements Continue to Gain Traction

The law continues to evolve rapidly when it comes to labor and employment, particularly in the context of enforceability of arbitration agreements. The latest decision from the California Court of Appeal is no exception. In Iskanian v. CLS Transportation Los Angeles, the court upheld an arbitration agreement between an employee and employer which also included a waiver the right to bring any claims in a class or representative capacity. The Court of Appeal held that employee-employer arbitration agreements are enforceable under the same rules and conditions as any other contract. Furthermore, the Court expanded the application of such arbitration agreements to require individual arbitration of claims, including claims under the Private Attorney General Act (“PAGA”) and the Unfair Competition Law (“UCL”).

This case virtually eliminated any unique standards for enforcement which were particular to employee-employer arbitration agreements. While this case brings some certainty to enforceability of employee-employer arbitration agreements by eliminating any “special” tests or rules for employee-employer arbitration agreements, there are still critical requirements for enforceability and conscionability of any contract which must be complied with.

The Iskanian case should clearly benefit employers, but each business is different and each set of circumstances can present its own unique challenges. If you would like more information on how this could affect you, please contact us at (818) 992-9999 or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employers’ rights firm, specializing in representing businesses in employment and insurance matters.

________________________________________
COPYRIGHT 2012. Roxborough, Pomerance, Nye & Adreani. All rights reserved.

06/05/2012

Employment Law Update: Legitimate Reductions in Force Protect Against Liability.

On May 29, 2012, the Ninth Circuit Court of Appeal published a decision upholding the dismissal of an age discrimination case after the employer established that the plaintiffs were terminated due to a reduction in the work place.
In Schechner v. KPIX-TV, two news reporters at KPIX-TV in San Francisco filed an age discrimination case against their employer alleging that they were unlawfully terminated based on their age.
The employer filed a motion for summary judgment on the ground that the plaintiffs were lawfully terminated due to a “budget reduction mandate” from the corporate headquarters. The Ninth Circuit concluded that although the plaintiffs had established a prima facie case of age discrimination, they did not present sufficient evidence to establish that the “budget reduction mandate” was merely a pretext for terminating them based on their age.
The Schechner case is important because, in the present economy, many employers are forced to terminate employees due to cutbacks or a reduction in the work force. The Schechner case provides guidance on when it is proper and improper to do so. However, each employer’s circumstances will require an individual examination to evaluate whether their practices are compliant.

If you would like more information on how this could affect you, please contact us at (818) 992-9999 or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employers’ rights firm, specializing in representing businesses in employment and insurance matters.

05/21/2012

SUPREME COURT SAYS “NO” TO RECOVERY OF ATTORNEY’S FEES IN MEAL AND REST BREAK CASES.

On April 30, 2012, the California Supreme Court published a decision clarifying when a party may recover attorney’s fees in meal and rest break cases. This is significant because often the largest single expenditure in wage and hour cases is attorneys fees.

In Kirby v. Immoos Fire Protection, the California Supreme Court concluded that neither Labor Code section 1194 which pertains to the failure to pay minimum wages or overtime pay nor Labor Code section 218.5 which pertains to the nonpayment of wages, fringe benefits and health and welfare or pension fund contributions authorizes an award of attorney’s fees to a party that prevails on a meal or rest break claim.

Although the party seeking the recovery of attorney’s fees in the Kirby case was the employer, the decision was not limited to only those cases where the employer prevailed, but would apply to preclude successful Plaintiff’s lawyers from recovering their attorney’s fees in meal and rest break cases when brought under Labor Code section 1194 or Labor Code section 218.5.

The Kirby case will certainly benefit employers and should make it less attractive for plaintiffs to file meal and rest break cases, but each employer’s circumstances are different, and creative lawyers will likely come up with alternative theories to seek recovery of attorneys fees. If you would like more information on how this could affect you, please contact us at (818) 992-9999 or via e-mail at [email protected]. Roxborough, Pomerance, Nye & Adreani, LLP is an employer’s rights firm, specializing in representing businesses in employment and insurance matters.

05/21/2012

RPNA IN THE NEWS!!

UNENFORCEABILITY OF ZURICH SERVICES ABILITY TO ARBITRATE CLAIMS MISHANDLING DISPUTES AGAINST CALIFORNIA EMPLOYERS

On May 15, 2012, Roxborough, Pomerance, Nye & Adreani won, for California Employers, a significant Published Appellate Decision against Zurich Services Corp (“ZSC”) concerning ZSC’s attempt to compel a California based employer to arbitrate their claims mishandling dispute in Illinois.

In DMS Services, Inc., et al, Zurich Services Corp, Zurich American Insurance Company and American Zurich Insurance Company, the trial court had ordered DMS to arbitrate its claims mishandling allegations against ZSC in Illinois. In its lawsuit, DMS alleged that under the Claims Service Agreement with ZSC (a third party administrator), ZSC was responsible for reviewing workers comp claims filed against the employer, as well as investigating, adjusting, settling and defending the employer against these workers comp claims. The Trial Court had ruled that DMS was obligated to file its claim in arbitration and had to do so in Illinois. However, the Court of Appeals reversed the trial court’s decision and found that DMS’ civil suit filed in Los Angeles, CA., could go forward and that ZSC’s claim to have the entire matter arbitrated in Illinois, was contrary to the agreement of the parties. A full and complete copy of the published opinion is attached for your reference.

This Published Opinion now has the potential legal affect that any employer who believes their claims have been mishandled by ZSC can no longer be compelled to arbitrate those claims in a foreign state-Illinois. Rather, California based employers can bring these cases in a civil court against ZSC.

To the extent you have any questions regarding the above decision, please direct your communications to Nicholas P. Roxborough and Joe Gjonola of Roxborough, Pomerance, Nye & Adreani.