Disability Harassment is Illegal under California Law

Under California’s Fair Employment and Housing Act (“FEHA”), it is an unlawful for an employer or any other person to harass an employee due to their physical disability, mental disability, or medical condition.[1] Unlike claims for discrimination, liability for harassment applies to “any person” and thus extends to individuals, including individual supervisory employees.[2]

In order for harassment to be actionable under the FEHA, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[3] Notably, the conduct need only be severe or pervasive.[4] The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.”[5] The verb “pervade” is defined as “to become diffused throughout every part of.”[6]

As to whether the alleged conduct is sufficiently severe or pervasive, a jury should consider the totality of circumstances.[7] The relevant jury instruction identifies the following factors that may be considered, among others: “(a) The nature of the conduct; (b) How often, and over what period of time, the conduct occurred; (c) The circumstances under which the conduct occurred; (d) Whether the conduct was physically threatening or humiliating; and (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.”[8]

In Caldera v. Department of Corrections and Rehabilitation, the court affirmed a jury verdict in favor of the plaintiff on a claim for disability harassment.[9] The plaintiff alleged that he was mocked for his stutter multiple times in front of others.[10] To make matters worse, the harasser’s conduct had been broadcast over the prison’s radio system, and heard by about 50 employees.[11] Other incidents of harassment had occurred in front of the plaintiff’s co-workers.[12] Additionally, the plaintiff’s psychologist had testified that the harassment had caused the plaintiff to experience psychological disorders.[13] This evidence was more than enough to support the jury’s determination that the harassing conduct had been both severe and pervasive, although either would have been sufficient.[14]

[1] Cal. Gov’t Code § 12940(j)(1).

[2] Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 65 (1996).

[3] Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 263-264 (2009).

[4] Ramirez v. Wong,188 Cal.App.4th 1480, 1488 (2010).

[5] Webster’s Collegiate Dictionary (11th ed. 2007) p. 1140, col. 2.

[6] Id. at p. 925, col. 2.

[7] Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609-610 (1989).

[8] CACI No. 2524.

[9] Caldera v. Dep’t of Corr. & Rehab., 25 Cal.App.5th 31, 38–43 (2018).

[10] Id. at 34.

[11] Id. at 35.

[12] See id. at 34-36.

[13] Id. at 35.

[14] Id. at 39.

Disability Discrimination at Work is Illegal under California Law

California’s Fair Employment and Housing Act (“FEHA”) makes it unlawful to refuse to hire, discharge, or discriminate against a person because of their physical or mental disability or medical condition.[1] Courts have interpreted the term “to discriminate” as used in that context to mean “to treat differently.”[2] An employer “has treated an employee differently ‘because of’ a disability when the disability is a substantial motivating reason for the employer’s decision to subject the employee to an adverse employment action.”[3] (more…)

Your Rights at Work under California Disability Law

California’s Fair Employment and Housing Act (“the FEHA”) and related regulations promulgated by the Fair Employment and Housing Council provide important protections to employees and applicants with disabilities.[1] These protections extend to persons who are disabled or considered to be disabled, as well as to those who are associated with people who are disabled.[2] (more…)

Retaliation against Employees for Requesting Disability Accommodations: Your Rights under California Law

Section 12940(h) of California’s Fair Employment and Housing Act (FEHA) provides that it is illegal for an employer to retaliate against an employee who has opposed any practices that violated the FEHA. Section 12940(m)(2), enacted in 2015, further provides that it is illegal for an employer to retaliate or otherwise discriminate against a person for requesting accommodation for a disability.[1] That protection applies regardless of whether the request for accommodation was granted or not.

Pursuant to these sections, employers violate California law if they retaliate against an employee who requests an accommodation. That is true both in cases where the employer grants the accommodation and in cases where the accommodation is denied. If the employee has a reasonable belief that the way in which her request for accommodation was handled was unlawful, and complains about it, and is retaliated against for doing so, that is also a violation of the FEHA.

The interplay between these sections was explored in Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076. There, the plaintiff had requested accommodations involving her work-related travel to Mexico. The employer denied her requests, which she opposed. The employer then allegedly retaliated against her for requesting the accommodations and for complaining when her requests were denied. The court concluded that the plaintiff had sufficiently alleged that she had engaged in a protected activity under the FEHA and denied the defendant’s motion for summary adjudication on the plaintiff’s claim for retaliation.

In Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, the court considered the related question of whether notifying an employer of a medical condition, without more, constituted a protected activity under the FEHA. There, the plaintiff had notified the University of California, her employer, that she had a heart condition. The court found that merely providing such notice was not protected activity under the retaliation provisions of the FEHA because it did not involve engaging in opposition to any practices forbidden under the FEHA. Nor did it involve the filing of a complaint, testifying, or assisting in any proceeding under the FEHA.

To be clear, however, while such notification may not constitute protected activity for the purposes of a retaliation claim, it may trigger a duty on the part of the employer to engage in an interactive process in order to determine whether there are reasonable accommodations available that could assist the employee. See Govt. Code § 12940(n). The duty to engage in that process will be explored further in other posts on this blog.

Finally, in Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, the court addressed the question of whether a plaintiff’s support for the rights of the disabled community, as well as his opposition to the elimination of a program that benefitted that community, were protected activities under the FEHA. The court found that the actions that the plaintiff opposed were not violations of the FEHA, which was fatal to his claim: “That [plaintiff] opposed what he viewed as unwise or even improper actions by the Department is not enough to make his opposition a protected activity.”   5 Cal.App.5th at 382.

If you have questions about reasonable accommodations or retaliation in the workplace, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com.

[1] Prior to that amendment, courts had held that the FEHA did not prohibit retaliation against employees for requesting accommodations. See Rope v. Auto–Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652–653 (Under FEHA and related regulations, “a mere request—or even repeated requests—for an accommodation, without more,” was not protected activity.)

Disability Harassment in California — Your Rights at Work

California’s Fair Employment and Housing Act (FEHA) prohibits employers[1] from harassing employees, applicants, unpaid interns, and volunteers because of their “physical disability, mental disability, medical condition, [or] genetic information,” among other things. Gov. Code, § 12940(j)(1). It separately provides that employers are liable when they fail to take all reasonable steps necessary to prevent harassment from occurring. Gov. Code, § 12940(k).

Employers are strictly liable for disability harassment committed by their agents or supervisors.[2] State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034. Employers may be liable for harassment committed by employees who are not agents or supervisors if the employer, or its agents or supervisors, knows or should have known about the conduct and failed to take “immediate and appropriate corrective action.” Gov. Code, § 12940(j)(1). Employers are also responsible for the acts of nonemployees who engage in disability harassment when the employers, or its agents or supervisors, know or should have known of the conduct and failed to take immediate and appropriate corrective action. Ibid.

Employees who commit disability harassment are personally liable for that harassment. Gov. Code, § 12940(j)(3). Liability on the part of the harasser lies regardless of whether the employer knew or should have known about the conduct. Ibid.

In order to prevail on a claim for disability harassment, a plaintiff must show that the conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees” because of their disability. Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. However, the McDonnell Douglas burden-shifting framework does not apply to such claims because “there is no possible justification for harassment in the workplace.” Phan v. CSK Auto, Inc. (N.D. Cal., Aug. 27, 2012, No. 11-CV-02327 YGR, 2012 WL 3727305, at *10, fn. 11. Therefore, an employer cannot offer a legitimate nondiscriminatory reason for it.

The parameters of a disability harassment claim were explored in Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908. The plaintiff in that case was a severely obese woman who had worked at the Berkeley Tennis Club for more than 15 years.[3] After she was terminated, she brought suit, including claims for disability harassment based upon comments that had been made about her weight. These comments included the following:

1. After the plaintiff indicated that it might be a problem to get a properly sized uniform for her because she shopped in specialty stores, the club’s general manager responded by laughing and mockingly saying, “Oh yeah, that’s right.”
2. In November 2012, the club’s general manager asked the plaintiff whether she had thought about having weight-loss surgery.
3. The plaintiff heard the general manager tell the kitchen staff on one occasion not to give her extra food because she did not need it.

In addition, the plaintiff alleged that the defendant had ordered shirts that were too small for her and then disciplined her for resisting the uniform policy. She further alleged that she was paid less than other employees and denied extra hours and other positions within the company.

The trial court granted summary adjudication of the plaintiffs’ claim for disability harassment, among other claims. On appeal, the First District Court of Appeal reversed, finding that there was a triable issue of material fact as to the cause of action for disability harassment. The court noted that the comments mentioned above were not sufficiently severe nor sufficiently pervasive enough to support a FEHA harassment claim. However, viewed in context with other actions taken by the club, and while it was a “close call,” there was sufficient evidence to reverse the grant of summary adjudication. 18 Cal.App.5th at 940–941.

Furthermore, and in addition to prohibiting disability-based harassment, the FEHA also prohibits harassment based upon associating with individuals with a disability. See Govt. Code section 12926(o).[4] That was the conclusion in the unreported decision of O’brien v. California Department of Corrections and Rehabilitation (Cal. Ct. App., May 10, 2021) 2021 A.D. Cases 172611. In O’brien, the court considered the type of association necessary to support such a claim and declined to limit it to situations in which the plaintiff had a personal relationship with the disabled individual.

The attorneys at Hunter Pyle Law have handled a wide variety of disability-related cases. If you think your employer may have violated your rights, please feel free to contact us at (510) 444-4400, or at inquire@hunterpylelaw.com.

[1] Government Code section 12940(j)(4)(A) provides that for purposes of section 12940(j) only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. However, the term “employer” does not include a religious association or corporation not organized for private profit, except as provided in Government Code section 12926.2.

[2] State Dept. of Health Services further held that the avoidable consequences doctrine applies to damage claims under the FEHA. 31 Cal.4th at 1034. Under that doctrine plaintiffs are unable to recover damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation. Ibid.

[3] The opinion notes that the plaintiff’s weight interfered with several daily life functions, including bathing, walking, and using transportation. Furthermore, she was unable stand for more than an hour, could not walk more than a mile at a time, and often experienced significant shortness of breath from engaging in basic activities. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 919.

[4] Government Code section 12926(o) provides in relevant part as follows: “’[P]hysical disability, mental disability’…includes a perception that the person is associated with a person who has, or is perceived to have, any of those characteristics.”

Meal Break Violations in California: The First 5 Hours Rule and the Importance of Time Keeping Records

This post explores two questions that arise with respect to meal break laws in California: What is the “first five hours” rule, and what role do an employer’s time keeping records play in meal break lawsuits. As explained below, the California Supreme Court has resolved these questions in a way that protects workers and ensures that they get the meal breaks that they are entitled to under law.

The First Five Hours Rule

The first five hours rule is pretty simple. Under normal circumstances, if an employee works more than five hours in a workday, an employer must provide a 30 minute, uninterrupted meal break. In the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1042 (Brinker), the California Supreme Court clarified that this meal period must occur within the first five hours of work.

That holding in Brinker is grounded in California Labor Code section 512(b), which provides as follows:

Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.

The language in section 512(b) thus indicates that section 512(a) was intended to mandate that the first meal period ordinarily occur during the first five hours of work. Otherwise, there would be no reason for section 512(b). As the Court concluded, “Accordingly, first meal periods must start after no more than five hours.” Id.

The Role of Employer Time Keeping in Meal Break Cases

In the more recent case of Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, the California Supreme Court considered the important question of what role employers’ time keeping records play in meal period litigation. There, the Court adopted “in full” the concurring opinion of Justice Kathryn Werdegar in Brinker, holding that employers have an obligation “both to relieve their employees for at least one meal period for shifts over five hours” and, critically,  to record having done so.

Justice Werdegar’s concurrence is consistent with a long history of requiring employers to keep certain records regarding their employees and to face certain consequences if they fail to do so. Both the United States Supreme Court and California courts have adopted this approach. See, for example,  Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 686–688; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1536, fn. 11;and Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961 (“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.”).

In Donohue, the California Supreme Court took this analysis one step further. There, the Court explained that if an employer’s time keeping records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided. 11 Cal.5th 58.

What This Means for You

If you are working shifts that are longer than five hours, then you are entitled to a 30 minute uninterrupted meal break. That meal break must come within the first five hours of your shift. Otherwise, your employer is breaking the law and you are entitled to compensation at the rate of one hour of your regular rate of pay for each workday where the violation occurs.

Furthermore, if your timekeeping records show either no meal breaks or short meal breaks within your first five hours of work, then that will serve to create a rebuttable presumption that you did not receive a meal break as required by law. In other words, it will be very difficult for your employer to show that you were offered a meal break but decided to waive it.

The attorneys at Hunter Pyle Law have handled meal break claims throughout California, from San Diego to Los Angeles to Oakland and San Francisco to Sacramento. If you have questions about your meal breaks at work, feel free to contact us at inquire@hunterpylelaw.com or at (510) 444-4400.

Individual Liability under California Labor Code section 558.1: Some guidance from the courts of appeal

Until relatively recently, an employee could not recover damages for unpaid wages and other wage and hour violations from an individual owner or officer of the employer unless the employee could prove some other legal basis for liability such as alter ego liability. However, alter ego liability is generally difficult to prove and has been described as an extreme remedy that is sparingly used.

As a result, even if an employee obtained a judgment against a corporate employer, it was often difficult to collect that award for a number of reasons: the employer could have “hidden their cash assets, declared bankruptcy, or otherwise become judgment-proof.” See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 588 (2015-2016 Reg. Sess.) as amended July 1, 2015, p. 4; accord, Sen. Com. on Labor & Industrial Relations, Analysis of Sen. Bill No. 588 (2015-2016 Reg. Sess.) Apr. 29, 2015, pp. 5-6 [“the vast majority of wage theft victims received nothing, and those that received anything received little of what they were legally due”].

In response to this problem, the California Legislature enacted Labor Code section 558.1 in order to expand liability for wage and hour violations and to “discourage business owners from rolling up their operations and walking away from their debts to workers and starting a new company.” See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 588 (2015-2016 Reg. Sess.) Apr. 20, 2015, p. 12; see also Voris v. Lampert (2019) 7 Cal.5th 1141, 1161 [section 558.1 “targets individual officers who are involved in the failure to pay wages”].

Section 558.1 has two provisions that are relevant here. First, section (a) provides as follows:

Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.

The term “other person acting on behalf of an employer” is defined in section (b) as follows:

For purposes of this section, the term ‘other person acting on behalf of an employer’ is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term ‘managing agent’ has the same meaning as in subdivision (b) of Section 3294 of the Civil Code.

Section 3294, subdivision (b), of the Civil Code in turn provides an employer shall not be liable for punitive damages based on acts of an employee unless there has been “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice” on the part of “an officer, director, or managing agent of the corporation.” Courts have defined a “managing agent” pursuant to this statute to be an employee who “exercises substantial discretionary authority over decisions that ultimately determine corporate policy.” White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.

In the last year, two decisions from the California Courts of Appeal have helped to further shape the meaning of “other person acting on behalf of an employer” as used in Section 558.1. Most recently, in Espinoza v. Hepta Run, Inc. (Jan. 19, 2022, No. B306292) 2022 WL 167770 the Second District Court of Appeal concluded that in order to “cause” a violation of the Labor Code and therefore to come within the ambit of Section 558.1, an individual must have engaged in some affirmative action beyond his or her status as an owner, officer or director of the corporation. The court noted, however, that that “does not necessarily mean the individual must have had involvement in the day-to-day operations of the company, nor is it required the individual authored the challenged employment policies or specifically approved their implementation.” Rather, to be held personally liable, he or she must have had some oversight of the company’s operations or some influence on corporate policy that resulted in Labor Code violations.

Under this test, the individual defendant in Espinoza was clearly liable under Section 558.1. Among other things, he was the sole owner and president of the corporate employer. He also admitted that he had approved the policy that allegedly violated various provisions of the Labor Code.

The Espinoza court’s reading of section 558.1 is therefore broader than the gloss provided by the Fourth District Court of Appeal in Usher v. White (2021) 64 Cal.App.5th 883, 895, There, the court considered the question of whether personal liability could be imposed on a corporate officer who assisted with administrative and banking tasks but had no role in day-to-day operations or employment policies. The court relied mainly on federal district court decisions in finding that to be held individually liable, the officer must have been “ ‘personally involved’ in the alleged violations” or “engaged in ‘individual wrongdoing’ ” Id. at pp. 895-896.

“[T]o be held liable under section 558.1, an ‘owner’… must either have been personally involved in the purported violation of one or more of the enumerated provisions; or, absent such personal involvement, had sufficient participation in the activities of the employer, including, for example, over those responsible for the alleged wage and hour violations, such that the ‘owner’ may be deemed to have contributed to, and thus for purposes of this statute, ‘cause[d]’ a violation.” Id. at pp. 896-897.

Turning to the case before it, the Usher court held the individual defendant was not liable because the undisputed facts showed she had not participated in the relevant employment decisions.

Individual liability can mean the difference between being able to collect on a judgment for unpaid wages and being left with nothing. If you have questions about your wages, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

Independent Contractor or Employee? Why It Matters

In 2018, the California Supreme Court adopted the ABC Test for determining whether workers are independent contractors in the seminal case of Dynamex Operations W., Inc. v. Superior Court (2018) 4 Cal.5th 903. That test, generally speaking, is more favorable for workers because it requires hiring entities to prove that a worker (A) is free from the control and direction of the hirer; (B) performs work outside of the hiring entity’s business; and (C) is engaged in an independently established trade, occupation, or business. Otherwise the worker must be classified as an employee.

In adopting the ABC Test, the Dynamex Court noted that misclassification of workers as independent contractors is a very serious problem that, if unchecked, would “depriv[e] federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled.” That statement could not be more true, and this blog post explores just why that is so.

Misclassification deprives workers of their fundamental rights

As a preliminary matter, independent contractors (ICs) are not subject to the same wage and hour laws as employees (EEs). For example, ICs are not guaranteed a minimum wage, overtime, or meal and rest periods. Similarly, ICs do not have the right to a workplace that is free from harassment and discrimination. Nor do ICs have the right a safe workplace, or to form a union.

ICs also generally do not qualify for workers’ compensation if they get hurt on the job, or unemployment insurance if they get laid off.

Misclassification harms women and people of color

Furthermore, misclassification disproportionately harms women and people of color. Think about the industries where misclassification is most common: construction, home health care, shipping and delivery, driver services (like Uber and Lyft), and janitors. Those are also the industries in which women and people of color are disproportionately represented. According to one study, seven out of eight occupations in which misclassification is common are held mainly by women and people of color. See Alexander, Charlotte S., 2017, “Misclassification and Antidiscrimination: An Empirical Analysis,” Minn. Law Rev. 101, no. 3 (February 2017).

Misclassification shifts the burden to state and local governments

When companies convert EEs into ICs, they drastically reduce the amount of money that they have to pay by way of employment-based taxes. For example, employers are required to pay taxes that help to fund Social Security and Medicare. They also have to help pay for unemployment insurance and workers compensation. According to the Economic Policy Institute, these taxes and benefits “can add as much as 30% or more to a worker’s total costs.” See “Misclassification, the ABC test, and employee status” (June 16, 2021, Lynn Rhinehart, et al.

Companies that utilize ICs do not pay into the social safety net in this same manner. As a result, they effectively shift the cost of these important benefit programs to the taxpayers.

The misclassification ripple effect

Finally, misclassification makes it harder for companies that want to do the right thing and pay their employees a living wage. When a company misclassifies an employee as an IC, it gains an unfair advantage over its competitors. Even though it is illegal to do so, those companies are able to slash their overhead. This forces the companies competing with them to also reduce their costs. As a result, misclassification effectively pressures other businesses to follow suit.

The ABC Test and the future fight against misclassification

California is not alone: As of January 2022, many states have adopted the ABC Test. At the same time, companies like Uber, Lyft, and DoorDash have done everything they can to try and avoid treating workers as EEs under the law. This includes ballot initiatives like California’s Proposition 22, which sought to exclude app-based drivers from California’s wage and hour laws. The fight is therefore far from over

If you think that you may be misclassified as an Independent Contractor, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential intake process. We can be reached at inquire@hunterpylelaw.com, or at (510) 444-4400.

Is Your Employer Paying You Properly for Missed Meal and Rest Breaks? Only If it Includes Nondiscretionary Pay in Your Regular Rate of Compensation.

The California Supreme Court has clarified that employers must include both hourly wages and all nondiscretionary payments when calculating the regular rate of pay for the purposes of compensating employees for missed meal and rest periods. See Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858. The Court further held that this decision applies retroactively. Read on to see whether your employer might have been paying you the wrong rate for your missed meal and rest periods.

In Ferra, the issue was whether the defendant had properly calculated the amount of pay that was owed to employees who did not receive proper meal or rest periods. Under California law, when an employer does not provide an employee with a meal or rest period, as required by law, the employer must pay the employee one additional hour of pay “at the employee’s regular rate of compensation.” See Cal Lab. Code § 226.7(c). Loews Hollywood Hotel interpreted that phrase narrowly, and paid its employees for missed meal and rest periods according to their base hourly rate. It did not include any “nondiscretionary pay” in that calculation.

On review, the California Supreme Court noted that “nondiscretionary pay” included pay that was owed to an employee pursuant to a contract, agreement, or promise, so long as it was not determined at the sole discretion of the employer. In other words, where certain types of pay must be made in a certain amount if the employee accomplishes certain things, they are nondiscretionary under the law. Typically, nondiscretionary pay includes payments for meeting certain goals, such as attendance, timeliness, or productivity.

The Court then considered the history of Section 226.7, and concluded that “regular rate of pay” in that statute had the same meaning as the term “regular rate of pay” in Section 510(a). Accordingly, it includes not only hourly pay but also any nondiscretionary payments for work performed by the employee. This is consistent with the general proposition that California’s labor laws are to be liberally construed in favor of workers. See, e.g., Alvarado v. Dart Container Corp. (2018) 4 Cal.5th 542. 562.

Do you receive any type of nondiscretionary payments above and beyond your hourly rate, such as attendance or productivity bonuses? If so, your employer may be failing to pay you properly for your missed meal and rest periods. Please feel free to call the experienced attorneys at Hunter Pyle Law to find out if you may have a case. We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com.

A Win for Workers in the Fourth District Court of Appeal

The attorneys at Hunter Pyle Law (HPL), along with co-counsel Feinberg, Jackson, Worthman & Wasow (FJWW) recently received a favorable decision from the Fourth District Court of Appeal in a case called Uribe v. Crown Building Maintenence Co. (September 30, 2021, Case No. G057836). HPL and FJWW represent Isabel Garibay, a worker who intervened in the Uribe case because the defendant in that case was attempting to engineer a “reverse auction”-a strategic move whereby a defendant tries to settle the case by appealing to the lowest bidder. HPL and FJWW were able to block that settlement, returning the case to the trial court where they will seek justice and victory on behalf of the workers.

The underlying facts in Uribe are as follows. In 2015, HPL and FJWW filed a class action in Alameda County called Gama v. Able Services, et al. The Plaintiff in that case sought to represent a class of 20,000 janitors who were forced to use their cell phones for work-related purposes. (As a point of reference regarding the value of the case, HPL and FJWW had certified a class and subsequently resolved a similar case against another janitorial company for over $5 million.)

In 2016, Josue Uribe filed his lawsuit against the same defendants. Mr. Uribe’s case was not a class action; rather, it was a representative action under California’s Private Attorneys General Act (“PAGA”). Nor was it a cell phone case. Rather, Mr. Uribe’s case was originally about reimbursements for washing uniforms. (Mr. Uribe’s subsequent court filings seem to indicate that he later valued his uniform clam at zero dollars.)

HPL and FJWW litigated Gama aggressively, and were prepared to take the case to trial if it did not settle. However, once the defendants learned of this fact, they began to try to convince the lawyer who represented Mr. Uribe to settle the claims in the Gama case. Unfortunately, Mr. Uribe’s lawyer agreed to do that. He then tried to amend his case so that it included the claims at issue in Gama. Worst of all, Mr. Uribe’s attorney agreed to settle the janitor’s claims worth tens of millions of dollars for $370,000.

HPL and FJWW intervened in the Uribe case and tried to block the settlement at the trial court. However, they were unsuccessful in that regard, and were forced to file an  appeal. Fortunately, they prevailed before the Fourth District Court of Appeal, which reversed the judgment.

The appellate court began its analysis by noting that Ms. Garibay (the worker represented by HPL and FJWW) had standing to bring her appeal. Ms. Garibay had intervened in the Uribe case for the purpose of opposing the settlement, but the Fourth District noted that that was not enough. Instead, the court focused on the fact that Ms. Garibay’s case predated Mr. Uribe’s and that she had invested substantial time and resources to pursuing her PAGA claim.

The appellate court then adopted wholesale the argument that Ms. Garibay had made in her briefs: that Mr. Uribe had not properly exhausted his remedies prior to amending his case to add a PAGA claim based on the failure to reimburse for cellular phone expenses. This argument had fallen on deaf ears at the trial court, but the court of appeal found it to be compelling, reaching the following conclusion:

Having no basis to sue on that ground, any settlement Uribe reached with Crown could not include settlement of PAGA claims for unreimbursed cell phone costs, and the trial court could not enter judgment confirming such a settlement.

The court of appeal noted that the settlement provided that if the court did not approve it “as provided herein” it was null and void. The court then found that the settlement could not stand because it was not approved as written. The case will therefore return to the trial court, where HPL and FJWW will continue to fight on behalf of the 20,000 or so workers who are affected by this case.

By a strange twist of fate, on September 30 2021, the same date that Uribe was decided, the Second District Court of Appeal reached the opposite conclusion in the case of Turrieta v. Lyft (September 30, 2021, Case No. B304701). There, the court concluded that the objectors to a PAGA settlement did not have standing to appeal from a judgment approving that settlement. The attorneys in Turrieta have indicated that they are going to seek review at the California Supreme Court. Check back here for future developments as that effort continues.

If you have questions about your rights in the workplace, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at (510) 444-4400, at inquire@hunterpylelaw.com, or at www.hunterpylelaw.com.