California Appellate Court Rules Stray Remarks Enough to Defeat Summary Judgment In Age Discrimination Case

A California Court of Appeal recently held that stray remarks by a non-decision maker regarding a position not sought after by the plaintiff may nonetheless be enough to defeat summary judgment in an age discrimination case in Jorgensen v. Loyola Marymount University.

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Not Every Whistleblower Is a “Whistleblower” under New Jersey’s CEPA

A recent decision issued by the Chief Judge of the United States District Court for the District of New Jersey is a reminder that not every employee who “blows the whistle” is a “whistleblower” protected under the New Jersey Conscientious Employee Protection Act (CEPA), and that the New Jersey Supreme Court’s gatekeeping instructions to trial courts in Dzwonar v. McDevitt (2003) are alive and well.

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Illinois Appellate Court Clarifies BIPA Statutes of Limitations

On September 17, 2021, the First District of the Illinois Appellate Court — which covers appeals from Cook County, Illinois — addressed a hotly contested issue under the Illinois Biometric Information Privacy Act (BIPA): which statutes of limitations apply to BIPA claims? In Tims v. Black Horse Carriers, Inc. (2021 IL App (1st) 200563), the court concluded that a five-year limitations applies to some BIPA claims and a one-year limitations period applies to others.

There is no statute of limitations in BIPA which has led to litigation over which limitations period under Illinois law should apply to BIPA claims. In Tims, the plaintiff, a former employee of defendant, filed a class action complaint alleging that defendant did not comply with certain BIPA provisions in connection with its so-called biometric time clocks. The defendant moved to dismiss, arguing these claims were untimely under Illinois’ one-year limitation period for “slander, libel or for publication of matter violating the right of privacy” under 735 ILCS 5/13-201. The trial court denied the motion, concluding instead that the Illinois “catch-all,” five-year limitation period under 735 ILCS 5/13-205 for “all civil actions not otherwise provided for” applied to the plaintiff’s BIPA claims.

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California Court of Appeal Upholds Dismissal of ‘Unmanageable’ PAGA Claim

On September 9, 2021, the Second District of the California Courts of Appeal ruled in Fred Wesson v. Staples the Office Superstore, LLC that trial courts have “inherent authority” to strike claims under the California Private Attorneys General Act (PAGA) if they will not be manageable at trial. As the first precedential decision on this issue from a California court, this case provides employers with a welcome potential defense to some PAGA claims.

Facts and Background

Under PAGA, employees in California are empowered to bring claims on behalf of other employees (and the state of California) for violations of the California Labor Code. Critically, plaintiffs need not meet class action requirements or go through class action procedures to bring claims under PAGA on behalf of other employees. As a result, unlike class actions, employers have had relatively limited recourse to challenge wide-reaching PAGA claims, sometimes brought on behalf of hundreds or thousands of employees.

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An Employee Whose Individual Claims Are Time-Barred Can Still Pursue a PAGA Action

On July 21, 2021, the California Court of Appeal, Fourth Appellate District, held in Johnson v. Maxim Healthcare Services, Inc., that an aggrieved employee whose individual claim was time-barred had standing to pursue a representative claim under the Private Attorney General Act of 2004 (PAGA) on behalf of other allegedly aggrieved employees. The court’s decision was based on its interpretation of the California Supreme Court’s 2020 ruling in Kim v. Reins, wherein the high court held an aggrieved employee who settled his individual claims nonetheless had standing to maintain a representative PAGA action. This decision is poised to have a significant impact on all employers in California by expanding the scope of individuals with standing to bring a PAGA action.

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Minnesota: Parentally Signed Exculpatory Waivers Are Binding After Adulthood

This past year, exculpatory waivers had their moment in the sun as businesses and educational institutions raced to put waivers in place to protect against claims stemming from the COVID-19 pandemic. A Minnesota Court of Appeals decision published this week, Carter Justice v. Marvel, LLC d/b/a Pump It Up Parties, provides clarity and confidence for the Minnesota businesses and educational institutions that utilize waivers for persons under 18. In an issue of first impression, the appellate court held that an exculpatory waiver signed by a parent on behalf of his or her minor child is binding on the child after the child becomes an adult. The court also reinforced the standard for determining whether a waiver is enforceable under Minnesota law and the effect of an overly broad waiver.

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