The plaintiffs, Bo Avery, Phoebe Rogers, Kristy Camilleri, and Jill Unverferth, alleged that TEKsystems, a professional staffing agency that places IT consultants with business clients, had misclassified them as exempt from overtime laws, failing to pay overtime wages or provide required meal and rest breaks in violation of California labor laws. The case was filed initially in California state court but was removed to federal court by TEK. Over the ensuing months, the parties engaged in extensive discovery.

In September 2023, TEK internally approved expanding its longstanding mandatory arbitration policy – previously applied only to external consultants – to include internal employees like the recruiters.

The rollout communications criticized class actions as wasteful, inefficient, and primarily benefiting attorneys, while emphasizing arbitration’s efficiency. They were sent during the holiday season, contained inconsistencies about opt-out procedures and deadlines, and suggested employees consult their own attorneys at personal expense without mentioning free access to class counsel. A separate email targeted putative class members with an opt-out form specifically for remaining in the class action.

Plaintiffs moved for class certification on October 6, 2023, with briefing completing by December 14, 2023. Just five days later, on December 19, 2023, TEK rolled out a new mutual arbitration agreement to its internal employees, including putative class members. This agreement, which covered the claims in the lawsuit, was presented via email and deemed accepted through continued employment after December 31, 2023, unless employees opted out or quit.

Of 164 recipients, only 41 opted out to stay in the class. The class was certified on February 13, 2024, with notices issuing on April 16, 2024, and an opt-out deadline of June 15, 2024. On June 10, 2024 – after plaintiffs had moved for partial summary judgment and just days before the notice period closed – TEK filed a motion to compel arbitration against class members bound by the agreement.

The federal district court in the Northern District of California, denied TEK’s motion to compel arbitration. It found that TEK’s communications rolling out the arbitration agreement threatened the fairness of the litigation by being misleading and omitting key information, such as the availability of free consultation with class counsel and the status of the ongoing class certification process.

The court concluded that these actions subverted Federal Rule of Civil Procedure 23’s opt-out mechanism for class actions, effectively turning it into an opt-in process where inaction bound employees to arbitration and excluded them from the class. Invoking its broad authority under Rule 23(d) to manage class proceedings and ensure fairness, the district court refused to enforce the agreement. As an alternative basis, it also determined that TEK had waived its right to arbitrate by delaying the rollout for over 22 months into the litigation, engaging in a “wait-and-see” approach.

The Ninth Circuit Court of Appeals affirmed the district court’s denial of the motion to compel arbitration, declining to address the waiver issue and focusing instead on the Rule 23(d) grounds in the published case of Avery v TekSystems -3:22-cv-02733-JSC (January 2026)

The panel held that district courts possess the duty and expansive authority under Rule 23(d) to oversee class actions, including the power to invalidate arbitration agreements obtained through communications that undermine the integrity of the proceedings.

The appellate court’s rationale emphasized adherence to Supreme Court precedents, such as Gulf Oil Co. v. Bernard, 452 US 89 – Supreme Court 1981 and Hoffmann-La Roche Inc. v. Sperling, 493 US 165 – Supreme Court 1989 which grant district courts discretion to regulate contacts with class members and protect against abuses that could coerce or mislead them. The panel found TEK’s rollout communications to be inherently threatening to fairness: they disparaged class actions repeatedly as inefficient and attorney-enriching, were timed disruptively during the holidays, included conflicting instructions on how to opt out (such as deeming acceptance via continued employment while also requesting signatures), and implied personal legal costs without disclosing class counsel’s role.

These elements, combined with omissions about the lawsuit’s progress, risked confusing or pressuring class members into forgoing their rights under Rule 23’s opt-out framework, which presumes inclusion unless affirmatively excluded.

The court aligned its holding with similar decisions from the Fourth, Sixth, and Eleventh Circuits, rejecting TEK’s argument that the Federal Arbitration Act preempted such oversight by noting that Rule 23(d) applies neutrally to all contracts and does not disfavor arbitration. Furthermore, the arbitration agreement’s delegation clause – incorporating JAMS Rule 11(b), which assigns arbitrability disputes to the arbitrator – did not preclude the district court’s review, as the challenge targeted the agreement’s overall enforceability under procedural fairness rules rather than a specific provision.

Ultimately, the Ninth Circuit concluded that invalidating the agreement was a narrowly tailored remedy to restore the proper opt-out process, affirming the district court’s decision to safeguard the class action’s integrity.

The Division of Workers’ Compensation (DWC) has posted proposed ranges for attorney deposition fees to its online forum where members of the public may review and comment on the proposals.

In the California workers’ compensation system, the Workers Compensation Appeals Board (WCAB), a workers’ compensation judge, or any party to the action or proceeding may request the deposition of a witness in matter before the WCAB, pursuant to Labor Code section 5710. If either the employer or the insurance carrier requests that an injured employee be deposed, that injured employee is entitled to receive, among other benefits, “a reasonable allowance for attorney’s fees” if they are represented by an attorney.

Judges have discretion when awarding the fees, which are required to be paid by employer or its insurer. Fees are currently governed by local policy established by presiding judges in each district, which serve as a guide to the parties, but individual attorneys’ fees awards are subject to litigation before WCAB judges. Pursuant to section 5710(b)(4) the Administrative Director of the Division of Workers’ Compensation (DWC) is charged with determining “the range of reasonable fees to be paid.”

The proposed regulation will establish the range of reasonable fees allowable for attorneys representing injured employees when employers or insurers request their depositions. The deposition shall not exceed the following amounts:

(1) An amount not to exceed $500 per hour for attorneys certified as Workers’ Compensation Specialists by the State Bar of California;
(2) An amount not to exceed $450 per hour for attorneys with five or more years of experience in Workers’ Compensation matters in the state of California;
(3) an amount not to exceed $400 per hour for attorneys with fewer than five years of experience in workers’ compensation matters in the state of California;
(4) an amount not to exceed $250 per hour for non-attorney representatives as identified pursuant to Labor Code section 10751.

Incremental Billing Requirements:

(1) Fees authorized under this section shall be billed on an incremental, time-based basis, reflecting actual time reasonably spent preparing the injured employee for deposition and attending the deposition.
(2) Billing increments shall not exceed one-tenth (0.1) of an hour.
(3) Minimum or flat fees are not permitted, and attorneys or representatives shall not bill for time not actually expended.

Fees shall not be sought or awarded for activities including, but not limited to:

(1) General file review;
(2) Travel time or travel expenses;
(3) Review of deposition transcripts;
(4) Administrative or clerical tasks.

The forum can be found online on the DWC forums web page under “current forums.” Comments will be accepted until 5 p.m. on February 13, 2026.

California’s 2005 heat standard was an important first step to protect workers. Yet critics argued that the standard contained ambiguous wording that enabled employers to avoid improving working conditions, relied on vulnerable workers to demand breaks, and was not actively enforced by the California Division of Occupational Safety and Health.

In 2010, California responded by launching a statewide initiative aimed at educating workers about their rights, improving compliance among employers, and increasing inspections and enforcement. Labor unions and worker advocates continued to argue for changes, and in 2015, California revised the standard to close loopholes related to rest, water, shade, and enforcement.

Several US states have followed California’s example. Since 2022, Colorado, Maryland, Nevada, Oregon, and Washington have passed new laws that mandate water, shade, and regular rest breaks for all outdoor workers on hot days. In August 2024, the Occupational Safety and Health Administration (OSHA) proposed a new standard that would require similar protections for workers throughout the United States.

A new study just published by Health Affairs compared heat-related deaths among outdoor workers in California with those in neighboring states without standards during the period 1999–20. Researchers obtained data for all 126 counties in Arizona, California, Nevada, and Oregon for the period 1999–20. They identified 6,145 heat-related deaths among outdoor workers during the study period.

Arizona had the highest cumulative number of deaths (2,546), followed by California (2,207), Nevada (1,124), and Oregon (268). The county-year with the highest number of heat-related deaths among outdoor workers was Maricopa County, Arizona, with 233 deaths in 2020. Among counties that reported heat-related deaths among outdoor workers, the mean annual death rate was 0.91 deaths per 100,000 residents. All fifty-eight counties in California were covered by a heat standard starting in 2005, whereas none of the sixty-eight counties in the neighboring states was covered by a heat standard during the study.

Results suggest that the effectiveness of California’s heat standard increased substantially over time. Researchers found no decrease associated with the policy during the initial implementation period (2005–09), but point estimates suggested a 33 percent decrease in heat-related deaths among outdoor workers after increased enforcement (2010–14) and a 51 percent decrease after California’s heat standard revisions went into effect (2015–20). Although these individual period estimates were not statistically significant, a Wald test confirmed that California’s enhanced approach from 2010 onward was associated with a statistically significant decrease in worker deaths.

“Our findings offer important lessons for other states regarding the potential promise and pitfalls of heat standards meant to protect outdoor workers. On the one hand, California’s experience suggests that heat standards can reduce heat-related deaths among outdoor workers. On the other hand, it highlights that such policies may have little impact unless they are carefully designed and effectively enforced. A review of recently implemented heat standards suggests that variation in effectiveness is likely: Although Maryland’s 2024 law closely mirrors California’s revised standard, for example, Nevada’s 2024 version lacks a trigger temperature for enforcement”