Here are five employment law and non-employment law issues that had my attention this week:

1. Will the future workforce be paid daily?

The Wall Street Journal’s article, “The Wait for Payday Doesn’t Have to Be So Long” raises some interesting issues about efforts to lower the time it takes for employees to receive paychecks.  The article noted that there are a variety of fronts that can speed up paycheck processing.  On one front, there is proposed legislation from Sen. Elizabeth Warren, among other representatives, to require a faster banking network for payments to consumers.  On another front, startup companies, such as DailyPay, Inc., work with companies to offer instant pay to their employees.  The article also notes that drivers for Uber can chose to be paid as often as five times a day.  The article raises interesting issues, and with the prevalence of technology making faster payments easier, is this something that employees and employers will move to?

2. California Supreme Court holds that plaintiffs cannot allege conversion claim for recovery of unpaid wages

In Voris v. Lampert, the California Supreme Court held that plaintiffs seeking recovery of unpaid wages cannot assert the tort claim of conversion to recover the unpaid wages.  The plaintiff in this case attempted to plead conversion to recover unpaid wages he was owed from a series of start-up companies he worked for.  The plaintiff attempted to plead a conversion claim against the defendants in order to hold the individual corporate officers personally liable, as the start-up company that plaintiff worked for had no assets.  In addition to the personal liability for corporate officers, a conversion claim would also allow the plaintiff to seek punitive damages.  The California Supreme Court’s refusal to permit the conversion claim provides some additional protection to corporate officers and prohibits punitive damages in standard wage claim cases.

3. NLRB issues first decision on mandatory arbitration case after Epic Systems

The National Labor Relations Board (NLRB) issued a decision on arbitration agreements in the workplace.  This decision was the first decision on arbitration agreements after the Supreme Court’s decision in Epic Systems v. Lewis.  The NLRB’s decision in Cordua Restaurants, Inc. 368 NLRB No. 43 (2019) held:

  • Employers are not prohibited under the National Labor Relations Act (NLRA) from informing employees that failing or refusing to sign a mandatory arbitration agreement will result in their discharge.
  • Employers are not prohibited under the NLRA from promulgating mandatory arbitration agreements in response to employees opting into a collective action under the Fair Labor Standards Act or state wage-and-hour laws.
  • Employers are prohibited from taking adverse action against employees for engaging in concerted activity by filing a class or collective action, consistent with the Board’s long-standing precedent.

4. California Court upholds arbitration of Unfair Competition Law claims

The California Court of Appeal held in Clifford v. Quest Software that claims against an employer brought under Business and Professions Code section 17200 (UCL) are subject to arbitration.  The Court held that UCL claims for private injunctive relief or restitution must be arbitrated, and a prior case, Cruz v. PacificCare Health Systems, Inc. (2003), to the extent it is still good law, only prohibits the arbitration on UCL claims for “public” injunctive relief.

5. The War of Art – a quote I’m pondering

After reading The War of Art by Steven Pressfield a few years ago, I still re-read it every so often.  It has nothing to do with employment law, but it is an excellent road-map to keep leaders, artists, entrepreneurs, writers or any other person trying to accomplish a great task on course and working in their profession.  Here is a quote I particularly like from the book:

Are you paralyzed with fear?  That’s a good sign.  Fear is good.  Like self-doubt, fear is an indicator.  Fear tells us what we have to do.  Remember our rule of thumb: The more scared we are of a work or calling, the more sure we can be that we have to do it.