Ninth Circuit Issues Decision Regarding Employee’s Retaliation Claim Against Employer’s Attorney

In Arias v. Raimondo, Plaintiff Jose Anrulfo Arias filed suit against his employer’s attorney, Anthony Raimondo, for retaliation after Raimondo tried to have Arias taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) during a deposition. Arias v. Raimondo, No. 15-16120 (June 22, 2017).  Raimondo was representing Angelo Dairy in a lawsuit that Arias had filed in 2006 alleging various wage and hour violations.  In an attempt to derail this lawsuit, Raimondo provided ICE with information helpful in determining Arias’ legal status in the United States, and offered to “make the necessary arrangements” to assist ICE in apprehending Arias just ten weeks before trial.  When Arias discovered what Raimondo had done, he settled his wage and hour claims out of fear that he might be deported.  Then, Arias filed suit against Raimondo for retaliation in violation of the the Fair Labor Standards Act (“FLSA”) under the theory that Raimondo was acting as Angelo Dairy’s agent when he retaliated against Arias.  Continue reading “Ninth Circuit Issues Decision Regarding Employee’s Retaliation Claim Against Employer’s Attorney”


SLAPP Motions and Discrimination Claims: The California Supreme Court Limits Defendants’ Ability To Attack FEHA Cases

California has a powerful statute that is aimed at protecting our right to engage in free speech.  Known as the SLAPP law, Code of Civil Procedure section 425.16 allows people who are sued for engaging in free speech to bring a motion dismiss the lawsuit that has been filed against them.  In order to prevail […]


California’s “Day of Rest” Requirements

In an important decision for California employees and employers, the California Supreme Court issued its opinion in Mendoza v. Nordstrom, 2 Cal. 5th 1074, 393 P.3d 375 (2017) clarifying the Labor Code’s “day of rest” requirements.  The Court was addressing questions posed by the Ninth Circuit Court of Appeals regarding how to interpret California Labor Code sections 551 and 552. See Mendoza v. Nordstrom, Inc., 778 F.3d 834 (9th Cir. 2015). Labor Code section 551 states that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Labor Code section 552 prohibits employers from “causing their employees to work more than six days in seven.”  However, Labor Code section 556 provides that employers do not have to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

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The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act

The Equal Pay Act prohibits employers from paying men and women differently for equal work.  However, is it unlawful for an employer to have a policy that offers its new hires a salary that is five percent higher than their previous salary if the policy results in a female worker getting paid less than all her male colleagues?


In a 1982 decision, Kouba v. Allstate Insurance, the Ninth Circuit held that an employer can take prior salary into account when deciding an employee’s pay rate if the prior salary effectuated a business policy and was reasonable.  691 F.2d 873 (9th Cir. 1982).  In a decision last month, the Ninth Circuit provided further guidance on the extent to which employers can rely on prior salary in determining its employees’ pay.  Rizo v. Yovino, No. 16-15372 (April 27, 2017).  Continue reading “The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act”


On-Call Rest Periods Not Permitted in California

California’s Wage Orders provide as follows:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

The Wage Orders require employers to pay the employee for one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided and for an additional hour of pay at the employee’s regular rate of compensation for each workday that a meal period is not provided.  See also California Labor Code Section 226.7.

In a recent case addressing an employer’s obligation to relieve its employees of all duties during a rest period, the California Supreme Court held that “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”  Augustus v. ABM Sec. Servs., Inc. (Mar. 15, 2017) 2 Cal.5th 257, 260.  The Court clarified that an employers’ obligation to relieve an employee of all duties applied not only to meal periods, but also to rest periods.  Id. at 265.  Continue reading “On-Call Rest Periods Not Permitted in California”


Arbitration Agreements Cannot Ban Injunctive Relief in California

Many California laws provide for injunctive relief, such as a court order prohibiting the defendant from continuing to engage in the acts of practices that gave rise to the lawsuit.  One example is the unfair competition law, Business & Professions Code § 17200 et seq, which is referred to as the UCL.  In the employment law context, workers sometimes bring claims under the UCL in part because it has a longer statute of limitations (4 years) than many wage and hour laws.

The UCL provides that an injured person can seek an order preventing future conduct:

Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.  The court may make such orders or judgments…as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.  (Bus. & Prof Code, § 17203.)

Injunctive relief is both critical and powerful.  In some cases it prevents defendants from getting away with a slap on the wrist.  It also allows courts to stop defendants from engaging in illegal conduct now and into the future.

In recent years, however, many companies have implemented arbitration agreements that bar anyone who sues them from seeking injunctive relief.  Some of these agreements go so far as to prevent people from seeking injunctive relief in any forum, including court.  The California Supreme Court recently reviewed such agreements, and held that provisions in arbitration agreements that waive the right to seek public injunctive relief in any forum are contrary to public policy and unenforceable.  This ruling should allow workers who are forced into arbitration to at least be able to pursue their claims for injunctive relief. Continue reading “Arbitration Agreements Cannot Ban Injunctive Relief in California”


Ninth Circuit Finds in Favor of Plaintiff’s Age Discrimination and Retaliation Claims


Gilberto Santillan will have another opportunity to demonstrate that his employer of 32 years, USA Waste of California, Inc., wrongfully terminated him on the basis of his age and retaliated against him.  On April 7, 2017, the Ninth Circuit Court of Appeal held that Mr. Santillan established a prima facie case under his claims for age discrimination and retaliation in Santillan v. USA Waste of California, Inc.  (No. 15-55238, 2017 WL 1289971 (9th Cir. Apr. 7, 2017)).  The Court further held that USA Waste failed to provide any evidence that it had a legitimate reason for firing him. Continue reading “Ninth Circuit Finds in Favor of Plaintiff’s Age Discrimination and Retaliation Claims”


PAGA and Arbitration: The Growing Conflict between State and Federal Court

In earlier posts, we have explored the question of whether arbitration agreements that are broad enough to include claims under California’s Private Attorneys General Act (Labor Code section 2698), or PAGA, should be enforced.  As of March 2017 there is a growing split between state and federal courts on this issue.  As a result, which court a case winds up in may very well determine how the court rules on this critical question. Continue reading “PAGA and Arbitration: The Growing Conflict between State and Federal Court”


If Someone Hugs me in the Workplace, Can that be Considered Sexual Harassment?

If you feel uncomfortable when a boss or colleague hugs you in the workplace, do you have a valid claim for sexual harassment? Possibly. If a co-worker hugs you on several occasions and engages in other inappropriate conduct, you may have a claim. There is no magic number of incidents needed in order to establish liability. Continue reading “If Someone Hugs me in the Workplace, Can that be Considered Sexual Harassment?”


Rest Periods Must be Separately Compensated for Commissioned Employees

In Vaquero v. Stoneledge Furniture LLC (Feb. 28, 2017, B269657) __ Cal.App.4th __ (“Slip Op.”), the Court of Appeal explained that an employer’s obligation to separately compensate employees for rest periods extends to employees who are paid on a commission basis. This decision is in accord with other Court of Appeal decisions that require employers to separately compensate rest periods for employees who are paid on a piece-rate basis. (See Bluford v. Safeway Stores, Inc. (2013) 216 Cal.App.4th 864; Gonzalez v. Downtown L.A. Motors, LP (2013) 215 Cal.App.4th 36; see also Labor Code § 226.2.)

In Vaquero, the court analyzed IWC Wage Order No. 7, which applies to the Mercantile Industry, including retail and wholesale salespeople. Section 12 of Wage Order No. 7 says that employees must receive 10 minutes of rest time for every four hours worked, or major fraction thereof, which must be counted as hours worked for which there shall be no deduction from wages.

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