On December 29, 2022, President Biden signed the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act into law. The law went into effect immediately, as we previously reported.  The United States Department of Labor has now issued a field assistance bulletin providing guidance to the Wage and Hour Division on the enforcement of the PUMP Act. The guidance explains that covered employers must “provide nursing employees reasonable break time each time such employee has a need to pump breast milk at work for one year after the child’s birth.” (Emphasis in Bulletin). The guidance further explains that, although an employee and employer may agree to a schedule for pumping, “an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump.” Additionally, if the employer and employee agree to a schedule, it should be adjusted if the employee’s pumping needs change. The PUMP Act does not require employers to pay employees for break time used to pump, but the guidance clarifies that employers should consider whether breaks need to be paid pursuant to the Fair Labor Standards Act (“FLSA”) and applicable state and local laws. Per the guidance, non-exempt employees should be paid for time spent pumping unless the employee is completely relieved from all work duties. For exempt employees, an employer cannot reduce the employees’ salary to compensate for the pumping break time. In addition to requiring employers to provide time to pump breast milk, covered employers must provide nursing employees a place to pump breast milk at work that is shielded from view, free from intrusion from coworkers and the public, available each time it is needed by the employee, and not a bathroom. The guidance explains that the space must also be functional for pumping and “contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump.” Additionally, employees “must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.” Employers may not retaliate against an employee for asserting rights under the PUMP Act, and an employee may file a complaint with the Wage and Hour Division or a lawsuit against an employee for a violation of the PUMP Act. Finally, the guidance reminds employers to post and keep a notice regarding the FLSA’s requirements. The notice is available from the Wage and Hour Division and was recently updated to address the PUMP Act requirements. Employers should ensure that their policies and procedures comply with the updated guidance and that they have an appropriate space available for nursing employees.  If you have any questions about the requirements under the PUMP Act, contact your Polsinelli attorney.

Historically, a pregnant woman with a “normal” pregnancy was not considered “disabled” under the Americans with Disabilities Act (“ADA”), and, therefore, there was no requirement for employers to provide her with a reasonable accommodation during pregnancy. Effective June 29, 2023, that rule will change. On December 29, 2022, President Biden signed into law two laws protecting pregnant and nursing mothers. The two laws are the Pregnant Workers Fairness Act (the “PWFA”) and the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act. Each of these Acts provides new, additional protections to pregnant women. The PWFA provides that covered employers must provide “reasonable accommodations” to allow pregnant workers to perform the essential functions of their positions. PWFA incorporates various definitions from the ADA and, as a result of that, employers must engage in the interactive process with pregnant employees who request an accommodation in order to attempt, in good faith, to reach such an accommodation which may include temporarily adjusting the non-essential functions of the job and/or leave. The PUMP Act, which went into effect immediately, amends the Fair Labor Standards Act and requires certain employers to provide reasonable break time for all employees, including salaried employees, to express breast milk as needed and to provide a clean and private space for nursing mothers to express milk separate and apart from restrooms. Although some state and local laws already provided employees protections and rights similar to those under the PWFA and the PUMP Act, this is the first time these protections and rights apply under federal law. Employers should ensure that their policies and procedures comply with the PWFA and PUMP Act. If you have any questions about the requirements under these laws, contact your Polsinelli attorney.

On June 16, 2020, the Colorado Legislature passed the Healthy Families and Workplaces Act which becomes effective on January 1, 2021 for employers with 16 or more employees and on January 1, 2022 for employers with 15 or more employees and creates paid sick leave in Colorado.  Specifically, upon hire, employees begin accruing paid sick leave at the rate of one hour for every 30 hours worked, up to 48 hours and employers have the option of granting paid sick leave in one lump sum up front.  Unlike other jurisdictions that require a “waiting period” before employees may begin using paid sick leave, the Colorado Act entitles employees to use paid sick leave immediately upon accrual.  Accrued sick leave carries over from year-to-year up to a maximum of 48 hours, and employers can limit usage of the basic paid sick leave to 48 hours per year. Paid sick leave can be used for paid sick days for illness, injury, or condition of, or preventative care for, the employee or, as needed, the employee’s family member and for specific circumstances involving domestic violence, sexual assault, or stalking.  The request from the employee can be written or verbal. Additionally, there is a one-time allotment of two weeks of additional paid sick leave during a public health emergency.  Unused basic paid sick leave may be counted towards the two weeks.  Subject to certain time constraints, employees may take additional paid sick leave for various reasons similar to those under the Families First Corona Virus Response Act.  Upon termination, there is no payout of accrued but unused sick leave.  Like other statutes affecting employee rights, there is both a notice and posting requirement. Colorado employers should review and update their leave policies in light of the Healthy Families and Workplace Act.  For questions relating to the Act or paid sick leave compliance generally, please do not hesitate to reach out to your Polsinelli attorney.

According to the Centers for Disease Control and Prevention (“CDC”), there are currently tens of thousands of reported cases of the disease (recently named “COVID-19”) in China, with a growing number of cases in various international locations. In the United States, the CDC has confirmed 14 cases and has tested a total of 426 individuals. Another 39 people infected with the disease have been repatriated to the United States. Although most of these illnesses are associated with travel from Wuhan, the United States has reported at least two instances of person-to-person spread of COVID-19. The COVID-19 outbreak presents a host of employment law concerns for U.S. employers across all industries, but in particular, those in high-risk environments (such as healthcare) and those with employees engaged in international travel. The following are some guidelines to help employers respond to the outbreak: Educate Employees For employers that might be impacted by the disease, reassure employees that management is monitoring the outbreak, including travel restrictions and guidance, and supply employees with reputable resources regarding COVID-19, its transmission, and how to prevent exposure. Employers should avoid offering medical opinions or unreliable information that might create unnecessary fear and anxiety among employees. Advise employees to check the CDC’s most recent guidance and recommendations before any international travel. Actively encourage and flexibly permit employees to stay at home if they have symptoms of acute respiratory illness, and remind employees of applicable sick leave or paid time off that might be available to them. Remind employees of applicable policies and procedures for reporting concerns and requesting leaves of absence and other accommodations. Train supervisors and managers on how to respond to such requests. To ensure consistent messaging and uniform application of company policies, appoint a dedicated individual in human resources to field and respond to questions, concerns and requests related to COVID-19. Ensure a Safe and Healthy Workplace Encourage respiratory etiquette, hand hygiene and routine cleaning of commonly touched surfaces in the workplace. Employers should also provide appropriate health and sanitation supplies around the workplace. Comply with Occupational Safe and Health Administration (“OSHA”) regulations for maintaining a safe and healthy workplace. Although all industries should follow OSHA’s recommendations and industry-specific guidance, precautionary measures are required for certain industries (such as healthcare) with a high risk of exposure to infectious disease. If an employee is confirmed to have COVID-19, inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality about an employee’s health so as not to run afoul of the Americans with Disabilities Act (“ADA”) or similar state laws. Healthcare providers may also need to take into account any obligations under the Health Insurance Portability and Accountability Act (“HIPAA”) and consider public health reporting requirements, public safety needs, and the protection of its employees and patients. Review and Implement Policies If possible, temporarily suspend work travel to affected areas and stay abreast of current travel guidance from reputable health organizations. Requiring travel to high risk areas could expose employers to liability under OSHA or other employment laws. If an employee refuses to work or travel because of concerns related to COVID-19, carefully consider whether such concern is reasonable and consistent with current CDC guidance before insisting on travel or taking any disciplinary action. Consider implementing a temporary policy requiring employees that have traveled to affected regions (or are in direct contact with people who have traveled to affected regions) to stay at home for 14 days following their return (the suspected incubation period). This policy should be applied uniformly and not targeted at specific employees based on race, country of origin, or any other protected characteristic. Consider any request for accommodation arising from or related to COVID-19 just as the company would any other request for disability accommodation. An employee infected with COVID-19 (or even “regarded as” having the illness) could be protected under the ADA or similar state law as a “qualified individual with a disability.” Provide all necessary leaves required under state and federal law and/or company policy. A COVID-19 diagnosis will almost certainly qualify as a “serious health condition” under FMLA or equivalent state law. Once an employee has exhausted all leave, employers may still need to consider affording additional time off as a reasonable accommodation. Review any telecommuting policy and facilitate remote working where applicable. Employers should use caution in requiring employees to work from home simply because they display certain symptoms, as many of the early symptoms of COVID-19 share similarities with the common cold. If faced with telecommuting requests by employees with concerns of potential exposure, employers should assess whether such concern is reasonable before refusing this accommodation. Avoid making any medical inquiries or requiring medical examinations of employees absent a reasonable belief that an employee’s medical condition poses a “direct threat” to the workplace, as required by the ADA. “Direct threat” is defined as “[a] significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). In determining potential risk of COVID-19 infection, employers should rely only on guidance from reputable public health agencies and avoid making any determinations of risk based on race or country of origin. Failure to do so could violate state and/ or federal discrimination laws. To read the CDC Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19, click here. Five Takeaways for Employers The impact of COVID-19 is constantly evolving and will continue to present a host of legal issues for employers. Regardless of industry or location, employers should take the following action: 1.     Closely monitor and communicate developments from U.S. public health authorities. 2.     Implement appropriate policies and procedures to respond to and manage the concerns of employees. 3.     Ensure a safe and healthy workplace in compliance with all federal and state regulations and guidelines. 4.     Protect the privacy of employees. 5.     Consult legal counsel to navigate the various OSHA and employment laws implicated by the outbreak. For more information, please contact one of the authors or your Polsinelli attorney.

The Courts were kind to California employers in September, 2019, issuing two decisions which substantially reduce the damages which plaintiffs can recover in wage and hour cases. In the first case, ZB N.A. and Zions Bancorp.v. the Superior Court of San Diego County, the Supreme Court held that individuals cannot recover unpaid wages as part of a Private Attorneys General Act (“Paga”) action.  In doing so, it held that the "unpaid wages" that are available pursuant to § 558 can only be recovered by the Labor Commissioner and that they are not a civil penalty that a private citizen has authority to collect through PAGA. In the second decision, Naranjo v. Spectrum Security Services, Inc., the Court of Appeals of the State of California Second Appellate District held, among other things, that unpaid premium wages from meal and/or rest break violations do not entitle employees to additional remedies pursuant to §§ 203 and 226 of the Labor Code.  In doing so, the Court rejected those "derivative" claims and, relying on the Court in Kirby v. Immoos Fire Protection, Inc., (2012) 55 Cal.4th 1244, concluded that a § 226.7 action is brought for the non-provision of meal and rest periods, not for the "non-payment of wages." The significance of these cases is that the damages available to employees who claim that they have been denied meal and/or rest breaks is limited to the premium payments allowed for under Cal.Lab.Code § 226.7 but they are not entitled to recover unpaid wages under Cal.Lab.Code § 558 nor are the entitled to recover waiting time penalties under § 203 or penalties for violation of § 226 relating to itemized wage statements.  Additionally, under Kirby, attorney’s fees are not payable for alleged meal and rest break violations because those violations are not wages. The net result of these cases is that employees pursuing claims, whether on an individual basis, class basis or based on Paga, will only be able to recover the premium payments under § 226.7 but will be unable to recover any derivative damages and/or attorney's fees for an employer's failure to provide meal and/or rest breaks.

In an unpublished opinion, the Colorado Court of Appeals recently held that a departing employee's right to vacation pay at separation is dependent on the company's policies.  Nieto v. Clark’s Market, Inc., 2019 COA 98. In this case, the employer had a policy stating than an employee was not entitled to payment for unused vacation time if the employer discharged her or if she voluntarily quit without giving two weeks' notice. The employee quit without giving the requisite two weeks' notice and the employer did not pay her for unused vacation pay.  Thereafter, the employee filed suit. In its decision, the Court rejected the employee’s claim that her vacation pay was "earned and determinable," and, thus, owed to her on discharge pursuant to the Colorado Wage Claim Act (“CWCA”). Therefore, the employer did not owe her for that vacation time. The Court observed: Nothing in the CWCA creates a substantive right to payment for accrued but unused vacation time.  Rather, "the employee’s substantive right to compensation and the conditions that must be satisfied to earn such compensation remain matters of negotiation and bargaining and are determined by the parties’ employment agreement rather than by statute." The Court concluded by writing: In sum, reading Sections 8-4-101(14)(a)(III), 109(a), and 121 together, we hold that the [employer’s] unused vacation policy doesn't violate the CWCA.  [The employee’s] right to compensation for approved but unused vacation pay depends on the party's employment agreement.  And that agreement unequivocally says that the vacation pay she seeks wasn't vested given the circumstances under which she left the [employer’s] employ." The Nieto case is certainly good news for employers.  Even if not binding precedent, its rationale can be used to support a “use it or lose it” policy.  However, it may be prudent to still rely on a "cap on accrual" policy as a way of controlling an employer's liability to a separating employee for vacation pay.  Employers with questions regarding vacation payout policies and other employment policies would do well to consult with able counsel.

Although it may seem counterintuitive that an employer should keep time for an exempt employee, there may be sound reasons at times for doing so.  In a recent case in California, Furry v. East Bay Publishing, LLC (January 4, 2019), the Court of Appeals of the State of California ruled that the consequences for failure of the employer to keep time records required by statute falls on the employer and not the employee.  In that situation, the Court indicated that imprecise evidence of time can provide a sufficient basis for damages. In Furry, the employee alleged, among other things, that his employer failed to pay minimum and overtime wages. After a bench trial, the trial court concluded the employer did not keep detailed records of the hours worked by the employer and failed to meet its burden of proof that the employee was exempt from the laws pertaining to overtime and minimum wage.  However, the trial court found the employee’s testimony regarding his work hours to be “uncertain, speculative, vague and unclear” and refused to award any damages for overtime and minimum wages. When reversing the trial court’s decision on the issue of damages, the Court of Appeals agreed with the employee that a relaxed standard of proof applies when the employer fails to keep time records.  The Court observed that “once an employee shows that he performed work for which he was not paid, the fact of damages is certain; the only uncertainty is the amount of damage.”  Under those circumstances, an employee can use “imprecise evidence,” such as time estimates from memory, to meet the relaxed standard that was applicable. The Court explained the shifting burdens of proof: “[A]n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of the work as a matter of just and reasonable inference.  The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.  If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” The Bottom Line When an employer properly classifies employees as exempt, then time records and timekeeping do not seem important. However, if the exemption is challenged and not proper, then the employer may need evidence of the time worked or some other evidence or approximation of time worked. Without this evidence, the employer may be exposed to liability based on the testimony of the employee. Employers with questions regarding time recording or wage and hour laws would do well to consult with competent counsel.

Recently, California Governor Jerry Brown signed a series of Bills that add additional protections to victims of sexual harassment and may make it more difficult for employers to defend those claims.  Specifically, on or before January 1, 2019, the following laws will take effect: SENATE BILL NO. 1300 Senate Bill 1300 provides the most numerous and far reaching changes to the harassment landscape in California.  It adds a number of new provisions to the government code which broaden the definition of harassment and may diminish the ability of an employer to defend itself in court.  Specifically, the Bill adds a new Section, 12923, to the Government Code which: Substantially broadens the definition of a hostile work environment to include any conduct that "sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the work place, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of wellbeing." Indicates that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment. Rejects the "stray remark" doctrine and instructs that "the existence of a hostile work environment depends on the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.” Instructs that the legal standard, except in very limited circumstances, for sexual harassment should not vary by type of workplace. Instructs that harassment cases are rarely appropriate for disposition on summary judgment. In addition, Senate Bill 1300 also: Codifies case law that an employer may be responsible for the acts of non-employees with respect to harassment of employees, applicants, unpaid interns, or persons providing services pursuant to a contract in the workplace. Adds Section 12964.5 to the Government Code, which restricts the ability of an employer to require an employee to sign a release of a claim or right under certain circumstances.  Note a "release of claim or right" includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint. Prohibits an employer from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.   Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable. Significantly, this section does not apply to a negotiated settlement agreement to resolve an underlying claim that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer's internal complaint process.  Critically, a settlement agreement will only be considered to have been “negotiated” if the employee received notice and an opportunity to retain counsel. CONFIDENTIALITY OF SETTLEMENT AGREEMENTS In addition to the restrictions imposed by new Government Code Section 12964.5, Senate Bill 820 adds Section 1001 to the Code of Civil Procedure and relates to the confidentiality of settlement agreements.  Specifically, this new section outlaws provisions in a settlement agreement that prevent the disclosure of factual information related to a claim filed in a civil or administrative action regarding sexual harassment or other forms of harassment.  However, the prohibition does not apply to the identity of the claimant, if they requested it to be confidential, nor does it prohibit the confidentiality of the amount paid in settlement of a claim.  That provision, however, must be read in light of the new federal tax provision that precludes the deductibility of payments in connection with the settlement of sexual harassment or sexual assault claims that are subject to a confidentiality provision. ASSEMBLY BILL NO. 3109 In keeping with the concerns underlining new Government Code 12964.5 and Code of Civil Procedure Section 1001, Section 1670.11 is added to the Civil Code and makes a provision in a contract or settlement agreement void and unenforceable if it waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. LESSONS TO BE LEARNED The California legislature has greatly expanded the protection of employees and other individuals in connection with sexual harassment.  As a result of these changes, it is even more imperative for employers to train their employees to recognize and report allegations of sexual harassment and to affirm that they have been trained on these issues and they are not aware of any such circumstances.  Additionally, employers need to be careful when requiring an employee to forego legal claims or to restrict their ability to disclose facts relating to sexual harassment by either preventing such disclosure in a settlement agreement or trying to prevent their testimony in an official proceeding.

In Exby-Stolley v. Board of County Commissioners, No. 16-1412, 2018 WL 4926197 (10th Cir. Oct. 11, 2018), the Tenth Circuit Court of Appeals held that for an individual to succeed on a failure to accommodate claim under the Americans with Disabilities Act (“ADA”), he or she must establish an adverse employment action, i.e., one that materially adversely affects the terms, conditions, or privileges of employment. See 42 U.S.C. §12112(a). When reaching its decision, the Tenth Circuit relied on two principles: first, read the statutory language and second, do not rely on dictum. Analyzing the ADA, the Court first reviewed the language in 42 U.S.C. § 12112(a), which states: No covered entity shall [1] discriminate against a qualified individual on the basis of disability [2] in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. The Court then noted that subsection (b) states the term “discriminate against a qualified individual on the basis of disability” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). Based on the plain meaning of the statute, the Tenth Circuit concluded that failure to make a reasonable accommodation was a type of discrimination which, to be actionable, must be “in regard to” an adverse employment action. Rejecting the cases cited by the dissent, the majority opinion relied on another familiar principle: courts are not bound by dicta, which are “statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand.” TAKEAWAYS To employers, the case is important in that, at least under federal law in the Tenth Circuit, for an employee to have an actionable failure-to-accommodate claim, he or she must prove the failure to accommodate resulted in an adverse employment action.

Notwithstanding two previous California Supreme Court decisions which essentially held that “[u]nder the common law, corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employees’ wages,”  Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087, and Martinez v. Combs (2010) 49 Cal.4th 35, 66 (limiting liability for wage claims to the actual employer and not its agents), the California Court of Appeal just held that  individual employees can be liable for civil penalties and attorneys’ fees for a company’s failure to pay overtime and/or minimum wages. In Atempa v. Pedrazzani (September 28, 2018, D069001) ___ Cal.App.4th ___ [2018 WL 4657860], the Court of Appeal, Fourth Appellate District, distinguished both Reynolds and Martinez and held that individuals can be liable for civil penalties under California Labor Code section 558, subdivision (a) (relating to overtime) and Labor Code section 1197.1, subdivision (a) (relating to minimum wage) through the Private Attorneys General Act (“PAGA”) (Cal. Lab. Code, § 2699). The Court held that the plain meaning of Labor Code sections 558(a) and 1197.1(a) imposed liability for civil penalties on an “other person” acting on behalf of an employer.  Having established that an individual under the circumstances described in the case could be individually liable for civil penalties, as contrasted to the underlying wages, the Court relied on PAGA to allow a private attorney to collect those penalties (75% to the state and 25% to the aggrieved employees) and to collect attorneys’ fees of $315,014 pursuant to PAGA (Lab. Code, § 2699, subd. (g)(1)). CORPORATE EMPLOYEES NEED TO BE MINDFUL OF INDIVIDUAL LIABILITY FOR CIVIL PENALTIES ARISING FROM VIOLATIONS OF CALIFORNIA’S WAGE AND HOUR LAWS Notwithstanding the California Supreme Court’s determination that individuals, absent alter ego liability, are not liable for wages owed to a company’s employees, the Pedrazzani case establishes that corporate individuals can be held personally liable for civil penalties underlying the statutes requiring that employees be paid overtime and a minimum wage.Additionally, they can be held personally liable for attorneys’ fees resulting from an employee’s successful pursuit of those civil penalties under PAGA. It is unclear whether those payments ultimately will be paid by the company, if it hasn’t gone bankrupt, pursuant to California Labor Code section 2802.

In light of the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis [1] that class action waivers in arbitration agreements are enforceable, employers have been rejoicing.  However, is their excitement misplaced? As that eminent legal scholar, Isaac Newton, once said “for every action, there is an equal and opposite reaction.”[2]  To the extent class action waivers are enforceable, employers may experience an increase in individual cases, each of which includes the possibility for plaintiff’s counsel to obtain attorneys’ fees if he or she is successful.  Accordingly, companies should carefully evaluate whether to include a class action waiver in any arbitration agreement with their employees in light of the possibility of multiple individual arbitrations involving similar issues for which the company must pay for the arbitration fee, its attorney’s fees and the plaintiff’s attorneys’ fees if it is unsuccessful in each arbitration. Class Action Waivers Outside Of Arbitration The reasoning behind the Court’s decision in Epic Systems is tied closely to the policies underlying the Federal Arbitration Act (“FAA”), and it is unclear whether a class action waiver is enforceable in the absence of an arbitration agreement.  For example, in the absence of an arbitration agreement and the public policy underlying the FAA, would a non-arbitration class action waiver survive a challenge under Section 7 of the National Labor Relations Act involving concerted activity?  Similarly, in the absence of an arbitration agreement, would state statutes regarding unconscionability of a class action waiver be applicable?  See e.g., Gentry v. Superior Court, 42 Cal. 4th 443, 165 P.3d 556 (2007), abrogated by Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 327 P.3d 129 (2014).  Finally, in the absence of an arbitration agreement, can collective actions under the Fair Labor Standards Act (“FLSA”) be waived?  As a general matter, substantive rights under the FLSA cannot be waived.  The question is whether the right to a “collective action” is a substantive or procedural right, and the courts are split on this issue. Food For Thought A company should carefully consider whether to employ class action waivers in connection with any arbitration program and, in the absence of an arbitration program, should consider that a class action waiver may not be enforceable in certain circumstances. [1] Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). [2] Sir Isaac Newton, Newton’s Third Law of Motion, in Philosophiæ Naturalis Principia Mathematica(1687).