As workers have increasingly turned to class actions in order to combat wage theft and other unlawful actions in the workplace, employers have fought back on a number of fronts.  Two issues that have Gear-and-Gavel_dark-bluegotten a lot of attention lately are (1) the use of sampling and (2) the role of individualized damages.

How courts rule on the issue of sampling is important because it is often an effective way for workers to manage issues that arise in the class context.  How courts rule on the issue of individualized damages is critical because sometimes employers have unlawful policies or practices, but not all employees are damaged by them.  Under those circumstances, should the employees who have been damaged be able to bring a class action to vindicate their rights?

On November 21, 2016, workers in California won a significant victory with respect to both sampling and damages.  In Lubin v. Wackenhut (Second App. Dist.,  case no. B344383), the court of appeal reversed an order decertifying the class in a case brought by private security officers.  As a result, those workers will be able to proceed to trial and to bring their claims on a class-wide basis. Continue reading

gavel-952313-mThe California Equal Pay Act prohibits employers from paying men and women differently for equal work.  On October 6, 2015, Governor Jerry Brown signed the California Fair Pay Act, which expanded and strengthened the Equal Pay Act in several respects.  Under the California Fair Pay Act, employers are required to pay men and women equally for “substantially similar work” rather than merely “equal work.”  “Substantially similar work” refers to work that is similar in skills, effort, and responsibility, and performed under similar working conditions.

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California law provides many different ways for workers to recover attorney’s fees in wage and hour Gear-and-Gavel_dark-blueclaims.  Some of these avenues include prevailing on a claim for failure to pay the minimum wage (see Labor Code section 1194), prevailing on a claim for unreimbursed business expenses (see Labor Code 2802), and prevailing under California’s Equal Pay Act.

These fee-shifting statutes are incredibly important in wage and hour cases (among others).  This is because the damages in such cases, while often significant to the worker, are often not enough for an attorney to take the case on a contingency fee basis (whereby the attorney gets a percentage of the amount recovered).  Absent the possibility of a fee shift, many workers who have not been paid the wages they are owed would be unable to find an attorney to help them recover those wages.

One commonly used avenue to recover attorney’s fees in wage and hour actions is California Labor Code section 218.5(a), which provides in part as follows:

On September 26, 2016, Governor Jerry Brown signed Senate Bill 1241, which addresses choice of law Gear-and-Gavel_dark-blueand choice of forum clauses in employment contracts.  Simply put, some employers try to force workers to bring any claims they might have (for discrimination, failure to pay wages, etc.) in other states.  The most aggressive seek to force workers to bring their claims in other countries.  See, for example, Petersen v. Boeing Co. (9th Cir. 2013) 715 F.3d 276, in which the employer attempted to compel the plaintiff to litigate his claims in Saudi Arabia.

Choice of forum clauses are particularly burdensome for low wage workers.  It is often a challenge for these workers to find an attorney to represent them, in part because their claims are generally thought to be worth less money.  A choice of forum clause requiring a worker to litigate in another state renders it even more difficult to find an attorney willing to take the case.

Beginning on January 1, 2017, California workers will have an important tool to combat choice of forum clauses.  The new Labor Code section 925 will prohibit employers from requiring employees who primarily reside and work in California to agree that they must bring employment-related claims outside of California, provided that the employees’ claims arise in California.  Under section 925, such contractual provisions are voidable, and any dispute over them must be heard and decided in California.  Additionally, section 925 provides for attorney’s fees to an employee who is enforcing rights under that section. Continue reading

Gear-and-Gavel_dark-blueCalifornia employers are not required to provide paid vacation to their workers.  But, if they do, California law treats paid vacation the same as other wages in the sense that when employees who have accrued vacation are terminated, their employers must pay them all vacation wages owed.  Employers who fail to do so may be liable for all of the unpaid vacation wages, interest, and waiting time penalties.

California Labor Code section 227.3 provides, in pertinent part, as follows:

[W]henever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.

In an important decision for workers seeking to join together to enforce their employment rights, the Ninth Circuit Court of Appeals ruled in Morris v. Ernst & Young Gear-and-Gavel_black(https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/22/13-16599.pdf) that employers can not impose concerted action waivers in mandatory arbitration agreements. The Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act (“NLRA”) by requiring employees to waive their right to participate in “concerted activities” such as class and collective actions. With Morris, the Ninth Circuit joins the Seventh Circuit (Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016)), which was the first federal Circuit Court to adopt the National Labor Relations Board (“NLRB”) position in D.R. Horton, Inc., 357 NLRB No. 184 (2012).

In Morris, employees filed a class and collective action alleging that their employer had misclassified certain employees as exempt from overtime in violation of the Fair Labor Standards Act (“FLSA”) and California labor laws. These employees were required to sign agreements that had a “concerted action wavier” that required them (1) to pursue legal claims against Ernst & Young exclusively through arbitration, and (2) to arbitrate as individuals in “separate proceedings.”

The Court explained that:

Many people are aware that employers cannot discriminate against an employee with a disability under the California Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA).  But, what if you have a child, spouse or parent with a disability and need to take time off from work to care for himGear-and-Gavel_gold or her?  What if you need to be home in the evenings to nurse a disabled loved one back to health?  Can your employer retaliate against you for requesting an accommodation or discriminate against your because you are associated with someone with a disability?  Continue reading

It feels like the “gig economy” (also referred to euphemistically as the “sharing economy”) has taken Gear-and-Gavel_dark-blueover.  Uber, Grubhub, TaskRabbit, wherever you look, it seems like employees are being replaced by independent contractors or temporary workers who are being exploited by internet-based companies.  This perception is stoked by predictions in the tech industry, such as Intuit’s recent claim that by 2020, 43 percent of workers will be employed in the on-demand labor market.  (Of course, Intuit markets its products to “on-demand employers,” so such predictions should be taken with a grain of salt.)

A tectonic shift of this nature would upend the way that we think about work and wages.    Among other things, independent contractors are not subject to many wage and hour requirements, such as overtime and the minimum wage.  And temp workers often struggle to piece together a livable income from multiple sources of employment. Continue reading

 

Do you have a client who is sixty-five or older?  Do you have a disabled client?  If so, you should determine whether the client is a Medicare-enrolled beneficiary.Gear-and-Gavel_gold

Medicare beneficiaries who have claims against a tortfeasor with liability insurance or no fault insurance must initially contact the Centers for Medicare and Medicaid Services (CMS) and its Coordinator of Benefits Contractor (COBC) to report a case.  Continue reading

Governor Jerry Brown’s budget for 2016-17 contains several significant amendments to the procedural requirements of the Private Attorneys General Act, or PAGA.  These amendments apply to PAGA cases Gear-and-Gavel_dark-bluefiled on or after July 1, 2016.  They are limited to cases alleging violations of the California Labor Code provisions listed in Labor Code section 2699.5.

The amendments fall into four large categories:  (1) the cost and procedure for filing a PAGA action; (2) the timing of PAGA actions; (3) what information and documents must be provided to the Labor and Workforce Development Agency, or LWDA; and (4) the procedure that an employer must follow to cure PAGA violations.  Each amendment goes into effect on July 1, 2016, and does not affect PAGA notices filed before that date.

First, PAGA notices will require a filing fee of $75, and must be submitted both online and by certified mail.