What a Plaintiff Must Show To Win in an Off The Clock Case
“Off the clock” cases are those in which employees are not paid for all of the time they spend working. California courts have recognized that where an employer has either “actual” or “constructive” notice that an employee is working, the employer must pay the employee for that time. See Morillion v. Royal Packing 
Co. (2000) 22 Cal.4th 575, 585; White v. Starbucks (N.D.Cal.2007) 497 F.Supp.2d 1080, 1083.
“Actual” means that the employer actually knew that the employee was working. “Constructive” means that the employer should have known that the employee was working. The constructive prong of this test is important: It means that an employer cannot avoid its obligation to pay an employee by intentionally ignoring the fact that that employee is working.
A recent decision from the First District Court of Appeal clarifies what a plaintiff must show in order to win in an off the clock case. (more…)
Duran v. U.S. Bank: Statistics Remain an Important and Viable Tool in Achieving Class Certification
On May 29, 2014, the California Supreme Court issued its decision in Duran v. U.S. Bank (2014) S20093. Class action practitioners throughout the state have been awaiting this decision for some time, hoping that it will provide guidance as to how to properly litigate “misclassification” cases. (Misclassification cases are those in which the plaintiffs claim that they were improperly exempted from overtime and other wage and hour laws.)
Duran may not have gone as far as some hoped. However, its most important point is clear: Statistics remain a viable way to prove both liability and damages in class actions-provided, that is, that the methodology underlying the statistics is sound. (more…)
Another Court Gets It Right: Class Certification Must Focus On Plaintiffs’ Theory Of Liability, Not Its Merits
Ever since the seminal case of Brinker v. Superior Court (2012) 53 Cal.4th 1004, class action attorneys in California have grappled over the following issue: Should a trial court reviewing a motion for class certification focus on the theory of liability presented by the plaintiffs, or on the merits of the plaintiffs’ claims? Put differently, can a trial court deny class certification on the grounds that it rejects a plaintiff’s theory of liability? The recent case of Hall v. Rite Aid Corporation (May 2, 2014) 2014 DJDAR 6145 provides some guidance regarding these questions. In our opinion, Hall gets it right on both counts.
But first, a little background. The politics of this issue are not subtle. The anti-class action folks would like for class certification motions to focus on the merits. They believe that judges should be able to deny certification on the grounds that the plaintiffs are wrong about either the facts or the law or both. The reason for this political play is that once class certification is granted, notice must go out to all class members apprising them of their rights and allowing them to either remain involved or opt out of the case. Anti-class action folks do not like these notices, because they tend to result in more people learning about the illegal conduct that is going on, which, in turn, leads to more people asserting their rights. At that point, the proverbial toothpaste is out of the tube and unlikely to go back in. (more…)
Are Salespeople Exempt from Overtime under California Law?
Non-exempt workers earning an hourly wage in California are subject to state minimum and overtime requirements under California Labor Code sections 510 and 1194. However, there are some narrow exceptions which exempt these workers from these basic wage protections. One of these is the outside sales 
exemption, under Section 1171 of the California Labor Code.
The Industrial Welfare Commission (IWC) Wage Orders define an outside salesperson as a person who “customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.”
Fortunately for California workers, this is an area of law in which courts have decided that workers are more strongly protected under California law than under the similar federal exemption. The California Supreme Court considered the difference between California and federal law vis-à-vis the meaning and scope of the outside salesperson exemption in detail in Ramirez v. Yosemite Water Company (1999) 20 Cal.4th 785. (more…)
PAGA Continues to Provide an Avenue to Justice for Workers
In recent years, the United States Supreme Court has done its level best to derail class actions. In decision after decision the Court has curtailed the ability of regular people to join together to challenge the actions of corporations and other entities. The more cynical among us might see this as a pattern whereby the Court is going out of its way to grant new rights to the powerful and wealthy interests in our society. (See, for example, the recent decision in McCutcheon v. FEC, in which the Court greatly expanded the ability of wealthy individuals to contribute to campaign funds-and thereby disproportionately influence elections.)
The Court’s attack on class actions has dramatically affected workers seeking to enforce their rights under federal and state labor laws. Many workers who have sought to represent groups of employees in court have been (1) prevented from representing other workers (by way of a class action waiver that they were forced to sign in order to get the job), and (2) forced into arbitration where they are denied the right to present their case to a jury of their peers.
Workers in California are fortunate in that they have another resource to rely upon in the event that they are unable to bring a class action. California’s Private Attorneys General Act (also known as “PAGA”) was enacted in 2004 because the California Labor & Workplace Development Agency (LWDA) did not have enough attorneys or staff to enforce the California Labor Code. The goal at that time was to allow workers-particularly low wage agricultural workers-to file representative actions on behalf of themselves and their co-workers. (California Rural Legal Assistance, an incredible organization that represents farm workers, led the fight enact PAGA.) (more…)
The California Supreme Court and the fate of Class Actions
The California Supreme Court heard oral argument on April 3, 2014, in a case that is likely to significantly shape the landscape of class actions in both state and federal court: Iskanian v. CLS Transportation, No. S204032. The Supreme Court granted review in Iskanian to resolve two important questions: (more…)
Hunter Pyle to present at three events in Fall 2013
Hunter Pyle will be presenting at three events in Fall 2013:
On September 20, 2013, Hunter will participate in a case law update as part of the 4th Annual Alameda County Bar Association Employment Law Symposium. Hunter’s remarks will focus on significant developments in 2013 in the areas of wage and hour law, class actions, and PAGA claims. (PAGA claims are representative actions in which employees sue on behalf of the State of California and can recover significant penalties from their employers. Sometimes these claims are all that employees can bring because employers have forced them to sign arbitration agreements barring class actions. )
On October 10, 2013, Hunter will speak at the Annual Wage and Hour Litigation Seminar (Bridgeport). He will address the topic of recent developments in the law regarding PAGA claims.
Finally, on October 16, 2013, Hunter will present at the Stanford Law School Trial School Trial Advocacy Workshop.
If You Care About Your Rights In The Workplace, You Should Care A Lot About Italian Colors
For many years, the United States Supreme Court has recognized that an agreement to arbitrate will not be enforced if it prevents the effective vindication of federal statutory rights. This rule, called the “effective vindication rule,” has its origins in a case from 1985 called Mitsubishi Motors v. Soler, 473 U.S. 614. Its purpose is simple: to prevent corporations (and others) from crafting arbitration agreements that will for all practical purposes deprive ordinary people of their day in court.
Significantly, from 1985 until now, the effective vindication rule has been repeated and reiterated over and over again. As Justice Kagan’s forceful dissent in American Express v. Italian Colors explains:
[I]n the decades since Mitsubishi, we have repeated its admonition time and again, instructing courts not to enforce an arbitration agreement that effectively (even if not explicitly) forecloses a plaintiff from remedying the violation of a federal statutory right. Slip Op. at 4.
Unfortunately, on June 20, 2013, five justices on the Supreme Court decided that almost 30 years of the effective vindication rule had come to an end. In Italian Colors, those five justices compelled a small company to arbitrate its claims against the gigantic American Express Corporation (“Amex”). (more…)
On-Duty Meal and Rest Breaks: Workers May Proceed In Class Action Even If Some Got Breaks
The recently published decision in Faulkinbury v. Boyd & Associates, G041702 (Cal.App.4th May 10, 2013) (Faulkinbury II) clarified several important issues in wage and hour class actions. First, the court held that a trial court must certify a class where an employer requires all employees to sign meal-break waivers-even when some of the employees are able to take off-duty meal breaks. Second, the court held that the lack of a uniform rest break policy may create a common issue that is sufficient for class certification. Third, the court held that an overtime policy that fails to include bonuses and other allowances in calculating the overtime rate of pay presents common questions suitable for class treatment.
(more…)
A Victory For Low-Wage Workers: Class Actions Remain The Best Way To Protect The Rights Of Large Numbers Of Employees
Class actions are important tools for protecting the rights of workers-particularly those workers on the lower rungs of the economic ladder. When large numbers of these workers are denied their rights in the workplace-such as overtime pay or meal and rest breaks, they can join together in a class action to demand justice.
Large and powerful companies that have been subject to this type of litigation hate class actions. And it is no secret that these business interests have seduced the conservative faction of the United States Supreme Court into doing their bidding. In decision after decision, those same five justices have contorted the law, the facts, and their rational facilities, in an attempt to gut the class action device. Arbitration (Concepcion), removal to federal court under the Class Action Fairness Act (Standard Fire), and class certification itself (Dukes) have all been manipulated in an overt effort to prevent poor and working class people from having their day in court.
Thankfully, there are many brave and conscientious judges who have resisted this trend. For example, on May 28, 2013, the Court of Appeals for the Ninth Circuit issued its opinion in Leyva v. Medline Industries, Inc. Leyva addressed the critical issue of whether individual damages calculations can defeat commonality for the purpose of class certification. For many years, in both the state and federal courts, the answer to that question had been no. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Brinker v. Superior Court, 273 P.3d 513, 546 (2012). (more…)