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.
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.) (more…)
Connor v. First Student, Inc.: California Law Protecting Employees from Illegal Background Checks is Constitutional
For the past six years Hunter Pyle Law, along with our excellent co-counsel Lewis, Feinberg, Lee and Jackson, P.C., have represented a group of approximately 1200 bus drivers who had illegal background checks run on them by their employer. California law is very clear: with some exceptions not relevant here, before an employer can have a background check company run a background check on an employee, it must do the following:
- It must disclose, in a document consisting solely of that disclosure, that it intends to run a background check; and
- The employee must authorize the background check in writing.
Cal. Civil Code § 1786.16(a)(2). The employer must take these two steps every time that it wants to run a background check. If it does not, it is liable to the employee for a minimum of $10,000, plus attorneys’ fees and punitive damages. Cal. Civil Code § 1786.50.
California’s background check law therefore provides critical protections for California workers. This law was enacted because employers were having background checks run on employees without telling them. Sometimes these background checks would contain wrong information that would then follow the employees around for years, preventing them from getting jobs. The cases that prompted California’s Legislature to act are truly horrible, and involve people being unable to find work, becoming homeless, etc., all because of false information in background checks that they did not even know were being run. (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 driving. 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.) (more…)
“I want to sue my California employer for harassment and discrimination? But what happens if I lose my case?”
One important question that people often ask (and should ask) when thinking about suing their employer is, “What happens if I lose? Do I have to pay the defendant any money?”
In answering this question, it is critical to understand the difference between attorneys’ fees and costs. “Attorneys’ fees,” as the name indicates, are the actual fees that a defendant has paid to its attorneys to represent it in a lawsuit. “Costs” refers to the various expenditures that are made during the course of litigation, and can include things such as filing fees and court reporter fees.
In Williams v. Chino Valley Independent Fire District S213100 (May 4, 2015) the California Supreme Court recently clarified the circumstances in which a plaintiff who files a case under the Fair Employment and Housing Act (FEHA) and loses must pay the defendant’s case costs. The FEHA governs claims under California law for discrimination, harassment, and retaliation for complaining about discrimination and harassment, among other things. The Williams opinion will therefore impact all cases involving such claims. (more…)