Is Your Employer Required to Provide You With a Seat?
California employers require many employees to stand all day, despite the fact that they could provide seats if they wanted to. This practice is common in the retail industry, among others. But is it legal?
For certain employees, under certain circumstances, the answer is no. Many of the California wage orders contain language requiring that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” They also provide that “[w]hen employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”
When an employer fails to meet either of these requirements, it may be subject to penalties under California’s Private Attorney General Act (“PAGA”). Although the wage orders themselves do not provide for penalties for violating seating requirements, California Labor Code section 1198 prohibits employers from violating the wage orders. PAGA permits employees to bring claims for civil penalties based upon violations of the Labor Code. Therefore, employees can bring PAGA claims for failure to provide suitable seating in violation of the wage orders. (more…)
9th Circuit follows Supreme Court: Paying Off Lead Plaintiffs Doesn’t Moot Class Actions
In Chen v. Allstate Insurance Co., the first decision to take up the matter since Campbell-Ewald Co. v. Gomez, the Ninth Circuit has held that a company cannot pick off lead plaintiffs in a class action by paying them a full settlement. This is an important ruling because some companies were attempting to argue that 
while Campbell-Ewald held that settlement offers did not moot potential class actions, settlement payments were somehow different. Thus, in Chen, the defendant had offered $20,000 to settle the plaintiff’s claims. When the plaintiff rejected that offer, the defendant put the money in an escrow account. The defendant then argued that there was no longer any case or controversy because it had satisfied the plaintiff’s claims.
Both Chief U.S. District Judge Phyllis Hamilton and the Ninth Circuit disagreed. The court held that a claim becomes moot when a plaintiff receives complete relief on their claim, not when such relief is offered. Depositing money in an escrow account is offering relief, but it not receiving it.
Class actions are an important tool for protecting the rights of large groups of people who have been wronged. If you have a question about your rights, please feel free to contact Hunter Pyle Law for a free initial consultation.
The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?
Two questions have bedevilled practitioners representing workers in California ever since the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court in 2012: In a shift that qualifies for two rest breaks and one meal break, are employers required to provide one rest break before the meal break and the other one after? And, on a related note, can an employer combine multiple rest breaks into one long rest break?
In Rodriguez v. E.M.E., Inc. (April 22, 2016), the employees worked eight hour shifts. The defendant provided them with one meal break and one 20 minute rest break that fell either before or after the meal break. The Second District Court of Appeal used this scenario to provide some critical guidance with respect to when and how employers must schedule rest breaks. (more…)
Animus and Intent in Disability Cases: A Court Clarifies what Workers Must Show to Prevail in California
A recent decision of a California Court of Appeal clarifies that a disabled worker is not required to show that their employer had the intention to discriminate against them in order to prevail in a lawsuit under the Fair Employment and Housing Act. Rather, a disabled worker can prevail in their lawsuit by showing that the employer took action against them because of their actual or perceived disability, regardless of whether the employer had an intent to discriminate.
In other words, a worker need not show that an employer harbored any ill will or discriminatory animus toward people with disabilities. This clarification broadens the scope of disability cases, and sets such cases apart from other types of discrimination cases. It should cause employers throughout the state to be more careful when taking action against disabled employees. (more…)
Removability of PAGA actions to Federal Court
This blog is the third in a series regarding recent PAGA jurisprudence. It focuses on developments regarding the removability of PAGA claims to federal court. (more…)
PAGA and Arbitration: Representative Actions Are Alive and Well in California
This post is the second in a series of posts on developments in PAGA jurisprudence in 2015. It focuses on the interplay between PAGA and arbitration agreements. (more…)
PAGA’s Exhaustion Requirements: Guidance from the 9th Circuit
The Private Attorneys General Act of 2004 (Labor Code[1] §§ 2698-2699.5) (“PAGA”) was enacted in 2004 in order to allow employees to bring representative actions to recover civil penalties for violations of the Labor Code. Once an afterthought, in recent years PAGA claims have become increasingly popular.[2] As the number of PAGA claims has grown, the PAGA landscape has become ever more hotly contested.
This post is part of a series of posts exploring recent development in PAGA jurisprudence. It focuses on PAGA’s exhaustion requirements. (more…)
The Arbitration Struggle Continues: One (more) Courageous Judge Stands Up For Workers
The Chinese philosopher Laozi is reputed to have said that a journey of a thousand miles begins with a single step. A corollary is that a long journey only continues if people are courageous enough to continue it, despite the daunting odds they may face.
A California federal judge recently joined the group of jurists who have been courageous enough to push back against the efforts to force workers and consumers out of court and into binding arbitration. The ills and abuses associated with employment arbitration are well documented, and will not be revisited here. (The New York Times ran an excellent series about those ills and abuses in 2015, which revealed that Chief Justice John Roberts of the United States Supreme Court was among the attorneys who came up with the legal strategy of forcing people into arbitration.) But it is encouraging that the struggle over arbitration is far from over, and there are some glimmers of hope for workers.
In Totten v. Kellogg Brown & Root, U.S. District Judge Dolly M. Gee denied defendant KBR’s motion to compel individual arbitration in a wage and hour class action. Judge Gee did so despite the fact that the plaintiff had signed an agreement to arbitrate his grievances in an individual manner. Judge Gee based her order on the D.R. Horton, Inc. case, a decision of the National Labor Relations Board. In D.R. Horton, the Board found that class actions are protected concerted activity under the National Labor Relations Act (NLRA). As such, private agreements that ban such class actions are unenforceable. (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 they 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. (more…)
California Wage and Hour Class Actions: Some Guidance after Brinker and Duran
California courts continue to grapple with two recent California Supreme Court decisions: Brinker Restaurant Corp. v. Superior Court (“Brinker”) and Duran v. U.S. Bank (“Duran”). Three cases decided within the past year help to shed light on how these cases have altered the class action landscape.
First, in Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, the First District Court of Appeal considered a case that arose in Alameda County Superior Court. Koval involved claims by Field Technicians that they were not able to take meal and rest breaks. The plaintiffs’ case was complicated by the fact that Pac Bell had facially compliant meal and rest break policies. However, the plaintiffs’ based their claims on 13 other documents that pertained to Pac Bell’s “Job Performance Policies and Expectations.” Those documents contained hundreds of guidelines and best practices regarding Field Technician duties. The plaintiffs extracted from them seven guidelines that restricted Field Technicians’ ability to take meal and rest breaks.