Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?

A recent decision from the Court of Appeal for the Second Appellate District in the case of Naranjo v. Spectrum Security Services, Inc. (September 26, 2019) Case No. B256232 addresses several unresolved questions pertaining to meal and rest periods in California.

First, the Court upheld the trial court’s ruling that Spectrum had not met the requirements for an on-duty meal period because, during part of the class period, it did not have a written agreement in which the employees were advised that the agreement could be revoked.  In reaching this conclusion the Court rejected Spectrum’s argument that it had substantially complied with the on-duty meal period requirements. (more…)

Employees Beware: Arbitration Agreements Can Sometimes be Applied Retroactively

Increasingly, employers are asking employees to sign arbitration agreements.  If the arbitration agreement is valid and enforceable, the employee generally waives the right to sue the employer in court and have the case tried before a jury of his or her peers.  Employers typically favor arbitration for a variety of reasons, including privacy, control over arbitrator selection, limited rights to appeal, and the ability to have employees waive the right to bring class action lawsuits.

What happens if an employee has claims against an employer, files a lawsuit and then signs an arbitration agreement?  Can that employee still be compelled to arbitrate his or her claims?  The Court of Appeal for the Fourth Appellate District recently addressed this issue in Franco v. Greystone Ridge Condominium, et al.  The Court of Appeal held that an arbitration agreement that is signed after the employee initiates his lawsuit does not preclude compelling those claims to arbitration.  (Franco v. Greystone Ridge Condominium, et al., No. G056559, filed Aug. 14, 2019, certified for publication on Aug. 27, 2019). (more…)

Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act

Plaintiff Jose Valtierra, a facility maintenance technician, sued his employer Medtronic, Inc. alleging that he was terminated on account of his disability, morbid obesity, in violation of the Americans with Disabilities Act (ADA).  Mr. Valtierra worked for Medtronic, Inc. for about ten years.  By the last year of his employment, he had gained 70 pounds, taken time off due to joint pain, and struggled to walk.  Mr. Valtierra’s supervisor, noticing that the employee was struggling to walk, allegedly became concerned about whether Mr. Valtierra was able to complete his work assignments.  When the supervisor checked the computer system, he discovered that Mr. Valtierra had falsified work records, so Medtronic, Inc. terminated him.

The district court looked at whether Mr. Valtierra suffered from a disability for purposes of the ADA and whether Medtronic’s termination was unlawful.  (more…)

Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim

A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years.  In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees.  Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long.  Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance.  Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment.  She was constructively terminated in 2014.

Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (more…)

Can Attorneys be Bound by Provisions in their Client’s Settlement Agreements?

After reviewing a client’s settlement agreement, it is not uncommon for attorneys to sign beneath a notation “approved as to form” or “approved as to form and content.”  When an attorney provides such a signature, is he or she bound by the contents of the settlement agreement?  Possibly.  The California Supreme Court recently held that counsel’s signature approving a release as to content and form does not preclude a factual finding that counsel both recommended that his or her client sign the document and intended to be bound by its provisions.  Monster Energy Co. v. Schechter, Cal. S. Ct. Case No. S251892 (published July 11, 2019). (more…)

Dynamex Applies to Franchisors and Is Retroactive:  The Ninth Circuit Weighs in

All companies want to reduce their labor costs.  Unfortunately, some resort to classifying their workers as independent contractors when they really should be classified as employees.  Among other issues, that misclassification robs the workers of critical protections under the law:  For example, many wage and hour laws do not apply to independent contractors.

Last year, in Dynamex Ops. v. Superior Court (2018) 416 P.3d 1, the California Supreme Court issued a strong opinion in favor of California’s workers.  Dynamex adopted the “ABC test” for determining whether workers are employees or independent contractors under the California wage orders.  Now, in Vasquez v. Jan-Pro Franchising Int’l (May 2, 2019), the Ninth Circuit Court of Appeals has gone further, approving the ABC test, holding that Dynamex applies retroactively, and applying it to franchise relationships. (more…)

LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail

Aurora Le Mere was a Los Angeles Unified School District (LAUSD) teacher for thirteen years.  In that time, she filed a number of complaints and claims arising from her employment, including worker’s compensation claims and administrative complaints regarding LAUSD’s violations of provisions of the Education Code.  In 2007, she filed a lawsuit against LAUSD and two individuals for discrimination, harassment and civil rights violations.  All her claims and cases through 2007 settled.  Then, in 2015, Ms. Le Mere filed another complaint against LAUSD and six individuals claiming that she had been unlawfully harassed and retaliated against since filing the 2007 case and worker’s compensation claims.

The defendants successfully demurred twice to the 2015 complaint.  (more…)

How to Stop Wage Theft and Hold Your Boss Personally Liable for Unpaid Wages under California Law

Wage theft, or the failure to pay all wages due, is a serious problem.  Studies show that up to $50 billion in wages go unpaid every year in the United States, and even workers who get court judgments for unpaid wages find it hard to collect on them.  One reason for this state of affairs is that the law makes it relatively easy for individuals to hide behind corporate status and/or corporate shells in order to protect their assets.

A 2018 California court case clarifies that workers in this state have an important tool that allows them to bring suit against individual business owners for unpaid wages.  In Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, the court held that two former employees could sue the owner of the restaurant at which they had formerly worked for unpaid wages.  The court reached this decision despite the fact that the owner had created a corporation that was technically the employees’ employer. (more…)

An Employer May be Liable in a Car Accident Caused by an On-Call Employee

Ray David Moreno was the passenger in a company-owned pickup truck his father was driving when the vehicle veered off the road, hit an embankment, and rolled over.  Mr. Moreno sustained serious injuries and sued his father’s employer, Visser Ranch, Inc. and the owner of the vehicle, Graceland Dairy, Inc.  Mr. Moreno maintained that Visser Ranch was vicariously liable because the driver of the truck was acting in the scope of employment at the time of the accident.  Moreno v. Visser Ranch, Inc., et al., 5th Dist. Case No. F07822 (filed December 20, 2018). (more…)

Providing PAGA Notice to the LWDA | Hunter Pyle Law

PAGA, also known as the Private Attorneys General Act of 2004 (Cal. Labor Code § 2698, et seq.) requires workers to give written notice to California’s Labor and Workforce Development Agency, or LWDA, before seeking civil penalties that otherwise could only be recovered by the state of California.  A 2018 appellate decision in Brown v. Ralph’s Grocery Company, a case that has been pending since 2009, provides guidance in terms of how much written notice is required in PAGA notice letters, and when workers are required to amend their PAGA notice letters in order to preserve claims that that they discover after the date of their letter. (more…)