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  • Wage and Hour Wars Continue: The California Supreme Court Expands Discovery in PAGA Representative Actions

    In a blow to employers, the California Supreme Court ruled July 13, 2017, that employers can be required to turn over statewide employee information to allow a plaintiff to discover information about other potentially “aggrieved” employees in a Private Attorneys General Act (PAGA) action. The PAGA statute allows private citizens to sue on behalf of the state for violations of California wage and hour laws and allows the recovery of substantial penalties for proven violations. In the Will...

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  • That's Not Me: The Use of Indian Imagery in Advertising

    It has been reported that there are over 600 active trademarks from 450 companies that have an Indian mascot or use Indian imagery in their branding.  Some of these trademarks are used by Indian-owned entities, but the majority of them are not.  The trademarks span the range of goods, including clothing, food, cigarettes and tobacco, alcoholic beverages, and paper products (see, e.g, Land O’Lakes, American Spirit, Hawaiian Airlines).  They also include sports teams like the A...

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  • The Equal Pay Act, Pay Differentials, and Gender

    Employers can assert as an affirmative defense to a claim under the Equal Pay Act (EPA) that a pay differential is “based on any other factor other than sex.” In Rizo v. Yovino (9th Circuit, April 27, 2017), the employer-county presented evidence that it legitimately based its pay structure on a factor other than gender, arguing that its use of an employee’s most recent prior salary was such a factor.  The Ninth Circuit found its earlier EPA case, Kouba v. Allstate Ins. Co., 69...

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  • How to Improve Your Tribal Consultation Practice

    In the aftermath of the fight to prevent the construction of the Dakota Access Pipeline and continuing efforts to reverse the actions taken by the U.S. Army Corps of Engineers, many people are wondering how a future conflict such as this might be prevented. Much of the problem—i.e., the desecration of cultural and religious sites–lies with inadequate consultation by the federal, state and local governments under federal law and policies, as well as a misunderstanding of or even a comp...

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  • Right Sizing Renewable Tribal Energy Projects at the Right Time

    What direction is renewable energy going in Indian country? Roof top solar is piecemeal and requires multiple individual actions to achieve a meaningful movement toward a green energy future. Utility scale solar and wind can impact large swaths of land and impact landscape-scale cultural viewsheds. Are community scale renewable energy projects the right fit for Tribal communities? More and more, it is appearing that this is the case. In California, utility scale renewable energy facilitie...

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  • The Future Of Class Action Waivers in Mandatory Arbitration Agreements: Should Employers Be Worried?

    In January 2017, the United States Supreme Court granted review of the Morris et al. v. Ernst & Young, LLP  case which held that the National Labor Relations Act (“NLRA”) prohibits class action waivers in mandatory arbitration agreements for employees.  As a result, employers with litigation pending in federal court now have an uphill battle when it comes to enforcing class and collective action waivers in mandatory arbitration agreements.  Worried employers will have t...

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  • CHARTER SCHOOLS AND IMMIGRATION ENFORCEMENT

    Reports of increased U.S. Immigration and Customs Enforcement (“ICE”) enforcement activity have caused concerns in communities across California and the nation.  The following practical guidance may help charter schools support their students and families with regard to such activities, particularly as they may affect school sites and operations. Hold an informational “town hall” event. The school may host meetings at the school to provide information related to sch...

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  • Appreciating Diversity in Graduation Ceremonies

    High School Graduation is a significant accomplishment for every high school student and their families. The graduation ceremony honors those students for that accomplishment and is a time when their families and communities can take pride in their accomplishments. Schools want their students dressed “appropriately” for the occasion. But, what is “appropriate”?  For many schools, this means prohibiting students from altering their cap and gown and/or restricting the types of ...

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  • Improving Behavioral Health in Indian Country

    In December 2016 the first-ever Tribal Behavioral Health Agenda (TBHA) was released.  The TBHA is a ground-breaking formal statement recognizing the unique needs of tribal communities concerning behavioral health care and setting forth an agenda to improve the emotional, spiritual, and mental well-being of tribal members.  The TBHA resulted from extensive consultation among tribal leaders, the Substance Abuse and Mental Health Services Administration (SAMHSA), Indian Health Service ...

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  • Standing Rock Sioux Water Protectors Win a Battle

    On December 4th, 2016, while many were sipping their Sunday coffee, the U.S. Army Corps of Engineers announced that the Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline (DAPL) to cross under Lake Oahe in North Dakota.  I am sure more than one cup of coffee spilled with elation and disbelief that the Water Protectors at and near the Standing Rock Sioux reservation had achieved a major victory against Dallas-based Energy Transfer Part...

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