Michael Rubin

“My focus the last year is like most of my previous years,” Rubin said. “Addressing new ways to protect the rights of low wage workers.”

The most important front in Rubin’s fight takes place in October when the U.S. Supreme Court holds oral arguments in Ernst & Young LLP v. Morris, 9th Cir. 16-300.

For 20 years, the U.S. Supreme Court has in decisions including the 2011 Concepcion ruling upheld employment and consumer contracts to individually arbitrate grievances, as opposed to taking those cases to court or filing group claims before an arbitrator.

The high court has consistently ruled that the 1925 Federal Arbitration Act preempts any state law mitigating arbitration’s enforceability.

Rubin, along with Cliff Palefsky of McGuinn Hillsman & Palefsky, hatched a theory that plaintiffs wanting out of arbitration could cite the 1931 National Labor Relations Act, protecting collective action in not just forming unions, the lawyers argue, but filing group lawsuits.

The 9th Circuit agreed with Rubin, but the U.S. Supreme Court will hear the case due to a circuit split.

Should the high court reverse the 9th Circuit, Rubin predicted that, “We will face a radically changed environment in the labor and employment sector. The number of arbitrations and lawsuits will plummet and the extent of violations will increase correspondingly.”

Another far-reaching issue Rubin is working on is joint employer status, meaning whether corporations instead of just their subsidiaries are liable for wage violations.

The lawyer settled a case with McDonald’s Corp. for about $4.75 million in October, one of the first cases in which a judge established joint employer liability. Ochoa et al. v. McDonald’s Corp. et al., 14-CV2098 (N.D. Cal., filed March, 12, 2014).

And Rubin is still duking it out in state court regarding what Illinois-headquartered McDonald’s owes its workers for state overtime violations. He won a landmark victory in April when Los Angeles County Superior Court Judge Ann I. Jones issued a summary judgment ruling that the corporation’s overtime policy itself violated state law.

— Matthew Blake