Felix Shafir

Employers and labor interests groups call on Shafir for help with their appellate matters.

Shafir was part of a legal team that filed an amicus brief on behalf of DRI, an organization that advocates for the defense bar. The brief was filed in support of the employers in three consolidated cases before the U.S. Supreme Court: Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; and National Labor Relations Board v. Murphy Oil USA Inc. The cases have worked their way through the 5th, 7th and 9th U.S. Circuit courts.

Employees in two of the three cases alleged their employers violated wage and hour laws. The employers moved to compel individual arbitration of each claim and the employees argued the arbitral class action waivers they signed could not be enforced because the National Labor Relations Act allows the right to pursue wage and hour claims on a collective basis. The employees also said that this right overrode the Federal Arbitration Act’s mandate, according to court documents. In the third case, the employer challenged the National Labor Relations Board’s determination that it committed an unfair labor practice by including class action waivers in employees’ arbitration agreements. The NLRB maintained that federal labor law overrode the Federal Arbitration Act’s mandate.

The U.S. Supreme Court’s decision on the case could have a major impact on California companies, Shafir said.

“When you have significant cases, they not only have consequences for the parties but can also have ripple effects on a broad swath of other interests,” Shafir said. “The U.S. Supreme Court has recognized that there can be rare situations where a later federal law could override the Federal Arbitration Act.”

Shafir was also part of the appellate team that filed an amicus brief on behalf of the Association of Southern California Defense Counsel in Troester v. Starbucks Corp., a case now in the California Supreme Court that centers on whether employees can bring wage and hour claims over short periods of unpaid time. The U.S. Supreme Court has held that employees may not recover for “de minimis” or minor amounts of work time in wage and hour cases brought under federal labor law. Now, the California Supreme Court has agreed to decide whether the “de minimis” rule applies to claims arising under California law. “It’s important because, in the area of wage and hour lawsuits, we often are dealing with negligible periods of time,” Shafir said. “The California agency responsible for enforcing state labor law has treated the de minimis defense as if it applies and the legislature has not stepped in to overrule this well-settled practice.”

— Melanie Brisbon