Few firms attract as many challenging employment defense cases. Our representations include:
Wage and Hour Litigation
We’ve handled numerous class actions alleging California and federal wage-and-hour law violations, winning our clients dismissals, de-certifications and other precedent-setting verdicts, including:
- See’s Candies in using a fact-gathering campaign to demonstrate that their break policies were lawful when a statistical analysis of employee timecards suggested otherwise.
- Carrington Mortgage Services in defeating class certification in a proposed class action alleging that 11,000 employees were not properly paid for overtime work.
- Merrill Lynch in settling a nationwide class action covering more than 21,000 financial advisors, setting the standard for such settlements throughout the industry.
- 99 Cents Only Stores in defeating class certification in a wage-and-hour class action for alleged off-the-clock work arising from store security policies.
We have been at the forefront of employee misclassification matters even before California’s Assembly Bill 5 (AB 5) created new opportunities for independent contractors to claim they are entitled to employee benefits. Our representations include:
- Lyft in response to class actions brought in California by Lyft drivers, the California Attorney General, several city attorneys general, and in Massachusetts and the District of Columbia by Lyft drivers, alleging they were misclassified as independent contractors.
- Instacart in using strategic enforcement of the company’s arbitration agreement, and an anticipated change of venue motion, to obtain dismissal of a proposed class action based on misclassification claims.
California Private Attorneys General Act (PAGA)
Originally enacted to help the state regulate its underground economy, PAGA allows employees to sue for almost any alleged Labor Code violation, creating new challenges for employers. In this climate, we have successfully applied existing employee agreements to compel many matters to arbitration and have defeated PAGA claims for lack of manageability. Our deep experience with PAGA litigation includes:
- 99 Cents Only Stores in resolving a PAGA action involving over 30,000 employees for just $289,000 after causing the plaintiffs to abandon most of their claims through our aggressive motion practice.
- Martin Luther King, Jr., Community Hospital in a PAGA and class action over payment for time spent in required pre-shift COVID-19 screenings. We mediated the matter to a very favorable settlement.
- Multiple major retailers in so-called “suitable seating” cases, all of which were resolved at various stages at extraordinary discounts – some for less than a penny on the dollar – compared to similar defendants.
Harassment and Discrimination
We are frequently asked to lead confidential investigations involving allegations of workplace misconduct, counsel clients on litigation and compliance matters, recommend policy changes and help develop communication strategies with respect to these challenging issues. Our representations include:
- Activision Blizzard as co-counsel in a suit by the California Civil Rights Department (CRD) alleging an environment of systemic sexual harassment and gender discrimination. We have challenged whether the CRD complied with its statutory pre-filing obligations that require it attempt to remedy the alleged violations through conciliation.
- University of California in persuading a federal court to abstain from interfering with sexual-harassment disciplinary proceedings against a former Dean of the UC Berkeley School of Law.
- Morgan Stanley Smith Barney in obtaining dismissal, without further investigation, of an EEOC complaint brought by a former employee alleging discrimination and harassment. In a separate matter, we defeated challenges in multiple venues to an arbitrator’s decision against an employee alleging religious discrimination and whistleblower retaliation.
- A specialty retailer in an internal investigation of alleged sexual abuse of a minor employee by a high-level field manager.
Trade Secrets and Employee Mobility
We have performed substantial work in the employee mobility space, advising companies on their rights to protect their intellectual property and executives on their rights to change jobs within confidentiality-driven industries. Our experience includes:
- Applied Materials, Inc. in a federal case and a civil lawsuit against former executives who conspired to misappropriate Applied trade secrets, the spouse of one of the executives, and two companies started by one of the executives.
- Intel Corporation in obtaining a temporary restraining order against a former employee who allegedly stole trade secrets before leaving for a competitor.
- A high-level technology executive in multi-forum litigation concerning the executive’s move to a California employer from an out-of-state rival.
- Amgen in advising on restrictive employment covenants and their enforceability.
We take an innovative and aggressive approach to employment litigation, helping our clients overcome broad challenges and setting industry-wide precedents:
See’s Candies: Decertifying an Employment Class Action through Statistical Analysis
Munger, Tolles & Olson secured a significant victory for See’s Candies when the California Court of Appeal, relying on detailed evidence we provided, rejected a proposed statewide employment class action based on alleged meal and rest period violations.
In the underlying matter, Salazar v. See's Candies, current and former non-exempt, hourly employees tried to bring a wage-and-hour class action claim in Los Angeles County Superior Court on the basis that See’s meal and rest period policies violated California's Labor Code. Because See’s shops are relatively small and often have only one staff member present, the plaintiffs sought to use expert analysis to show the candy-maker denied rest/meal periods to employees who worked alone and/or on unusually long shifts because they, as the sole employees, had to remain in the shop and attend customers.
In response, through an extensive fact-gathering campaign, we demonstrated that the plaintiff’s expert misinterpreted key data and that the company had adopted and communicated lawful meal and rest period policies. We also showed that employees at different shops lawfully complied with these policies in many different ways, such as leaving early instead of taking a second meal break, making class certification improper. In April 2021, the court found that See’s official policy was fully compliant with California law. The plaintiff appealed, but in May 2021, the California Court of Appeal affirmed the trial court’s decision.
Media Coverage: See's Candies Gets Calif. Appeals Win In Meal Breaks Suit
GardaWorld: Precedent-Setting Application of Federal Law to a California Labor Dispute
Like other companies in the security industry, GardaWorld Corporation – one of the world’s largest – had struggled for years to balance California employment laws, which require mandatory meal and rest breaks, with a job that requires drivers to be alert and in a position to protect themselves, the public and their assigned valuables at all times. GardaWorld first engaged Munger, Tolles & Olson on this issue in 2018. We went on to win a first-of-its-kind summary judgment ruling in In Re Garda Wage and Hour Cases that held as a matter of law that GardaWorld could use “on-duty” meal periods for armored car driver-messengers.
In 2019 and 2020, Munger, Tolles & Olson went on to effectively solve meal and rest period issues for GardaWorld – and the entire industry – by obtaining rulings that federal law preempts California’s meal and rest period laws for armored car drivers. The court found that U.S. Department of Transportation regulations and an administrative pronouncement prevent California from enforcing rest period requirements in this context.
Through these victories, we have changed the legal landscape for the entire armored guard industry, relieving GardaWorld and others from significant, pending class liability. On the heels of these wins, we moved north, where GardaWorld, then represented by other counsel, had suffered an adverse class action verdict and lost appeals that ran all the way to the Washington Supreme Court. Taking over the matter, our team argued that the preemption decision applicable to California would eventually apply to employees in Washington. Based on this argument, the plaintiffs agreed to accept only a fraction of the judgment amount, and, in February 2020, the court granted final approval for the settlement of these actions. Since then, the firm has assisted GardaWorld in obtaining a forward-looking exemption from the meal period requirements of Washington state law.
Media Coverage: Judge Says Calif. Meal Rule Can't Protect Armored Car Drivers
Katherine M. Forster
Malcolm A. Heinicke