The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2

On August 15, 2017, after remand from the U.S. Supreme Court, the Ninth Circuit issued a second opinion in the case of Robins v. Spokeo, case no. 2:10-cv-05306-ODW-AGR (Spokeo II).  Spokeo II clarifies the requirements for standing under the Fair Credit Report Act (“FCRA”).  At the same time, it leaves open two critical questions that will need to be resolved by future litigation. Continue reading “The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2”

Read more...

Perez v. U-Haul: Employers cannot compel arbitration of standing issue in PAGA cases

Some companies continue to try to force employees to arbitrate their individual PAGA claims before bringing their representative PAGA claims in court.  Two appellate decisions make it crystal clear that California courts have rejected these efforts, and that workers are not required to litigate PAGA claims in multiple forums.

By way of background, in Iskanian v. CLS Transportation, the California Supreme Court held that employers could not compel plaintiffs to arbitrate their representative PAGA claims.  In the wake of that case, some defendants began to argue that where workers had signed an arbitration agreement, they should be required to arbitrate their individual claims before proceeding with their representative claims in court. Continue reading “Perez v. U-Haul: Employers cannot compel arbitration of standing issue in PAGA cases”

Read more...

Morris v. Ernst & Young -The Ninth Circuit Follows D.R. Horton

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 (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 […]

Read more...

Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods

Over the past decade or so, higher court rulings regarding class actions have tended to dramatically favor either corporations or workers.  Corporations have arguably scored the most significant victories.Gear-and-Gavel_dark-blue  However, with the recent exit of Justice Antonin Scalia from the United States Supreme Court, there are some indications that this tide has begun to turn.  At the same time, it is clear that a Republican victory in November 2016 would return a conservative majority to the Court, and devastate any positive momentum in terms of workers’ rights.

Vaquero v. Ashley Furniture Industries, Inc., No. 13-56606 (June 8, 2016), a recent decision of the Ninth Circuit, is a good example of the type of decision that we can hope to see more of in the future.  Vaquero does three important things.   First, it properly limits the scope of Wal-Mart v. Dukes, 564 U.S. 338 (2011) with respect to the issue of commonality.  Second, it limits the impact of Comcast v. Behrend, 133 S. Ct. 1426 (2013) in wage and hour class actions.  Finally, it underscores the critical holding in Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016) that plaintiffs may continue to rely upon representative evidence to prove both liability and damages.  As such, Vaquero provides powerful ammunition for workers and their advocates in class actions. Continue reading “Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods”

Read more...

Representative Evidence May Be Used to Prove Class Action Wage Claims

In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Gear-and-Gavel_blackStandards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages.  Continue reading “Representative Evidence May Be Used to Prove Class Action Wage Claims”

Read more...

How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision

This month in an unpublished opinion in Green v. Bank of America, No. 13-56023 (9th Cir. Oct. 13, 2015), the Ninth Circuit clarified the standard for exhaustion of administrative remedies under the California Private Attorneys’ General Act (PAGA). The plaintiffs are now petitioning the court to have this decision published, so that the PAGA notice standard becomes the law of the Circuit. Continue reading “How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision”

Read more...

When Are Union Members Required To Arbitrate Their Wage and Hour Claims? Only when the CBA Clearly and Unmistakably Waives Their Right to a Judicial Forum

An issue that sometimes arises for union members who are subject to a collective bargaining agreement (CBA) is whether they must use the grievance and arbitration mechanism provided for in the CBA for any wage and hour claims (failure to pay overtime, failure to provide meal and rest breaks, etc.), or whether Gear-and-Gavel_dark-bluethey can sue in court.   Federal and state authorities establish that the primary test for resolving this question is whether the CBA clearly and unmistakably provides that union members must arbitrate their statutory claims.  Under the primary test, broad and vague language is not enough.  The CBA must explicitly state that it requires individuals to arbitrate their statutory claims.  Federal and state authorities also establish an alternative test.  Under the alternative test, a general arbitration clause coupled with an explicit incorporation of statutory requirements elsewhere in the CBA may result in a requirement that the employees arbitrate their statutory claims.  These tests are both explored in more detail below. Continue reading “When Are Union Members Required To Arbitrate Their Wage and Hour Claims? Only when the CBA Clearly and Unmistakably Waives Their Right to a Judicial Forum”

Read more...

The Ninth Circuit and PAGA:  A Pair of Important Decisions in Yocupicio v. PAE and Sakkab v. Luxottica

The Ninth Circuit Court of Appeals recently clarified two critical issues that pertain to claims brought under California’s Private Attorneys General Act of 2004 (PAGA), Cal. Lab. Code § 2698 et seq..  Each of these decisions is helpful to workers seeking to recover civil penalties under PAGA.

First, in Yocupicio v. PAE Grp., LLC, 795 F.3d 1057 (9th Cir. 2015), the Court held that PAGA penalties may not be counted when calculating damages for the purpose of the Class Action Fairness Act (CAFA).  Under CAFA, when certain other requirements are met, a class action that is filed in state court can be removed to federal court if the defendants can show that the damages at issue are worth more than $5 million.  (In very general terms, most plaintiffs want to be in state court because state courts are perceived as being more favorable to class actions than federal court.) Continue reading “The Ninth Circuit and PAGA:  A Pair of Important Decisions in Yocupicio v. PAE and Sakkab v. Luxottica”

Read more...

The Road Ahead for California Truckers:  Rest Breaks, Piece-Rate Work, and Federal Preemption

Several cases over the past few years have made it much easier for truck drivers in California to collect unpaid wages for missed meal and rest breaks.  These decisions have also clarified that truck drivers in California who are paid by the mile or by the load must be paid separately for time that they are not actually Gear-and-Gavel_dark-bluedriving.  This means that companies that pay their drivers by the piece must also pay them an hourly rate for time spent doing things like vehicle inspections and stand-by time.

For example, in Bluford v. Safeway Stores, Inc., a group of truck drivers sued Safeway for unpaid rest breaks.  Section 226.7 of the California Labor Code and Industrial Welfare Commission Wage Order 9 require employers to permit employees to take 10 minute rest breaks for every four hours (or major portion thereof) worked.  The first rest break kicks in after three and a half hours of work.  The second kicks in after six hours, and the third after 10 hours.  In other words, an employee who works a shift that is more than 10 hours long is owed three rest breaks.  Although employees are free from job duties during these breaks, the employer is required to pay for them and cannot deduct the rest breaks from employees’ wages.

The Bluford drivers claimed that Safeway had violated these requirements because it paid drivers based upon miles driven and tasks performed, but did not pay them for their rest breaks.  Safeway responded that it did not deduct any pay from the drivers’ paychecks, and thus did not violate the law.

The California Court of Appeal agreed with the drivers.  The court held that the drivers’ claim that they were not paid separately for rest breaks was enough to state a claim under Wage Order 9.   In other words, where drivers are paid by the mile or by the task, the employer must pay them separately for their rest breaks.  (On a separate but related note, if a driver is unable to take a rest break, the employer must compensate him or her with an additional hour of pay.) Continue reading “The Road Ahead for California Truckers:  Rest Breaks, Piece-Rate Work, and Federal Preemption”

Read more...

Unpaid TV Interns Settle Large Class Action Against NBCUniversal

Last year, a federal judge in New York ruled that Fox Searchlight Pictures violated minimum wage laws by not paying interns that worked on the set of the movie “Black Swan.”  In holding that employers could not simply avail themselves of free labor by calling employees “interns,” this case opened the pathway for other Gear-and-Gavel_blackintern cases against entertainment industry giants.

In the latest victory, a group of former interns reached a 6.4 million dollar settlement with NBCUniversal this week, representing the largest settlement yet in this new streak of cases.  While the original complaint involved New York interns, the case grew to include plaintiffs from other states.  This recent settlement makes clear that companies need to change the blanket exploitation of interns across industries and across the country, or pay the significant price that inevitably come with the growth of these cases.

Continue reading “Unpaid TV Interns Settle Large Class Action Against NBCUniversal”

Read more...