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 Gear-and-Gavel_dark-blueCo. (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 areGear-and-Gavel_dark-blue 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…)

The Wolf Guarding the Henhouse: Should Arbitrators Decide Whether To Enforce Arbitration Agreements?

When an employee files a lawsuit in court, and the employer tries to compel the employee to proceed in arbitration based on an arbitration agreement, who gets to decide whether the arbitration agreement is enforceable?  Is it the judge who is presiding over the employee’s case?  Or is it an arbitrator?  For more than five Gear-and-Gavel_dark-blueyears, the rule in California-which we think is fair-has been that the judge decides.  However, the recent decision of Tiri v. Lucky Chances, Inc. (May 15, 2014) 2014 DJDAR 6103 introduces confusion into this previously settled question. (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? Gear-and-Gavel_dark-blue 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…)

Expanded Protection for Whistleblowers: California Labor Code Section 1102.5 

Whistleblowers are people who speak out about what their employers are doing-either by complaining to the government or by complaining to someone at their company.  California Labor Code section 1102.5 is generally known as the “whistleblower law. “  For thirty years, Section 1102.5 has protected workers who reportGear-and-Gavel_dark-blue illegal conduct.

In late 2013, Section 1102.5 was amended in several important ways.  Each of these amendments expanded the protections that are available to people who complain about conduct in their workplace.  Three of these amendments are described below. (more…)

Which Side Are You On: A Union for College Athletes?

In recent years, unions have made significant inroads in terms of representing workers at universities and colleges.  The University of California alone bargains with 15 unions representing 77,000 of its employees.  As a result, these employees enjoy better wages, benefits, and job protections than if they were not Gear-and-Gavel_dark-blueorganized.

Until now, none of these unions has represented student athletes.  But why not?  Student athletes generate enormous sums of money and publicity for their alma maters. They are constantly at risk of injury.  They are required to spend long hours training and practicing and the beck and call of their coaches.  And yet, they are at the mercy of their institutions, without any real voice.

That may be changing.  On March 26, 2014, the regional director of District 13 of the National Labor Relations Board (NLRB) in Chicago, Peter Sung Ohr, ruled that Northwestern University football players were university employees.  As such, they are entitled to vote on whether to form a union. (more…)

Salas v. Sierra Chemical:  Will Employers Be Free To Discriminate Against Undocumented Workers In California? 

California has millions of undocumented immigrants.  The vast majority of these men and women come here to work, and the vast majority of them do work.  And yet, because of their undocumented status, these workers face some of the most blatant forms of discrimination, harassment, and wage theft.Gear-and-Gavel_dark-blue

Courts have struggled with how to treat undocumented workers.  For example, if undocumented workers are wrongfully terminated, should they be allowed to sue?  If they prove that they were wrongfully terminated, should they be allowed to recover the wages that they would have earned if they had not been fired?  If not, will this incentivize employers to hire undocumented workers because they are not entitled to the most basic and fundamental workplace protections? (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…)

The Profoundly Negative Impact of Arbitration on Workers’ Rights

Lawyers who represent employers regularly argue that there is no real difference between arbitration and jury trials.  They contend that arbitration does not affect the outcomes of cases.  And, it is “cheap and quick,” and the employer pays for the arbitrator.  So what are workers complaining about, anyway?Gear-and-Gavel_dark-blue

But as more and more employment cases are decided in arbitration, there are more and more data confirming the profoundly negative impact that arbitrations have on workers’ rights.  There are usually two main questions in litigation:  who wins, and what do they get.  The answer to each of these questions swings dramatically in favor of employers when employment disputes are forced into arbitration.

In other words, when workers are forced to arbitrate their claims, their likelihood of winning plummets.  In the event that workers win at arbitration, they are awarded much less money than the workers who win in state and federal court.

On February 27, 2014, Professor Alexander J.S. Colvin and Ph.D. Candidate Mark Gough (both from Cornell University’s School of Industrial and Labor Relations) gave an outstanding talk at Berkeley Law exploring the impact of arbitration on the outcome of employment litigation.  The statistics they discussed include the following:

1.  Professor Colvin’s research found “gross differences in arbitral and litigation outcomes.”  Overall, employees had a 57% win rate in state court trials, a 36% win rate in federal court trials, and a 21.4% win rate in AAA arbitration awards.  The average damages in state court were $328,000; in federal court $143,500; and in AAA arbitration $23,500.

2.  Mark Gough concluded that “Arbitration has a significant independent effect on employee outcomes:

These findings are astonishing, but not surprising.  This is exactly why employers are pushing so hard to get employment disputes decided in arbitration.  This is exactly why those who fight for workers’ rights must continue to resist this trend.

Another powerful statistic that Dr. Colvin shared was that 77% of employers were represented in arbitrations by employment law specialists, while only 55% of employees were represented in arbitrations by employment law specialists.  Similarly, 55% of employers were represented by law firms handling multiple abitration cases that year. Only 11% of employees were represented by law firms handling multiple arbitration cases that year.  This scenario creates a perfect storm for employers:  arbitrations are more difficult forums for workers, and workers are represented by lawyers who are not familiar with the arbitration process.

The attorneys at Hunter Pyle Law are committed to fighting for workers’ rights, no matter what the forum.  If you have a question about arbitration, please do not hesitate to contact us at 510.444.4400 or inquire@hunterpylelaw.com.

***The quotations from Professor Colvin and Mr. Gough are used here with permission.  Their talk was part of a day-long conference regarding called Forced Arbitration In The Workplace: A Symposium and organized by The Berkeley Journal of Employment and Labor Law (BJELL) and The Employee Rights Advocacy Institute For Law & Policy.