This month in an unpublished opinion in Green v. Bank of America, No. 13-56023 (9th Cir. Oct. 13, 2015), the Ninth Circuit clarified the standard for exhaustion of administrative remedies under the California Private Attorneys’ General Act (PAGA). The plaintiffs are now petitioning the court to have this decision published, so that the PAGA notice standard becomes the law of the Circuit. Continue reading “How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision”
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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. Continue reading “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”
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.
Continue reading “California Wage and Hour Class Actions: Some Guidance after Brinker and Duran”
Read more...Employer Unlawfully Denies Truck Drivers Reimbursement by Misclassifying Them as Independent Contractors
Seacon Logix, Inc. (Seacon) transports cargo from the Port of Long Beach and the Port of Los Angeles to warehouses or other facilities. Seacon hired and unlawfully classified its truck drivers as independent contractors rather than employees. Seacon had its drivers complete and sign various documents, including
an agreement which provided that the drivers were independent contractors or subcontractors.
Seacon then leased its trucks to the drivers. Because the company classified the drivers as independent contractors, it deducted lease and insurance payments, and fuel and repair expenses from the truckers’ paychecks.
The truck drivers filed a class action lawsuit against Seacon. The plaintiffs alleged that they should have been classified as employees and that Seacon should not have deducted truck lease payments or insurance premiums from their paychecks. Continue reading “Employer Unlawfully Denies Truck Drivers Reimbursement by Misclassifying Them as Independent Contractors”
Read more...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.) Continue reading “The Ninth Circuit and PAGA: A Pair of Important Decisions in Yocupicio v. PAE and Sakkab v. Luxottica”
Read more...Halliburton Pays $18.3 Million in Overtime Wages to More than 1,000 of its Employees
On Tuesday, September 22, 2015, oil and gas service provider Halliburton entered into a settlement agreement with the Department of Labor. Halliburton agreed to pay $18,293,557 in overtime wages to 1,016 employees nationwide.
Halliburton misclassified employees in 28 job positions as exempt. These positions included field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists. When these employees worked more than forty hours a week, Halliburton failed to pay them overtime wages in violation of the Fair Labor Standards Act (FLSA). Halliburton also failed keep accurate records of the hours these employees worked. The company claims to have discovered it misclassified its employees during a self-audit. Continue reading “Halliburton Pays $18.3 Million in Overtime Wages to More than 1,000 of its Employees”
Read more...Proposed Changes to Overtime Laws Will Help Millions of Employees Nationwide
In July, the United States Department of Labor (DOL) announced a new rule that would extend federal overtime protections to millions of “white collar” workers. Continue reading “Proposed Changes to Overtime Laws Will Help Millions of Employees Nationwide”
Read 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. Continue reading “Connor v. First Student, Inc.: California Law Protecting Employees from Illegal Background Checks is Constitutional”
Read more...Being Classified as an Independent Contractor Instead of an Employee Denies Workers Important Benefits and Protections Under the Law
There is an increasing trend in this country for employers to misclassify employees as independent contractors. Workers who are misclassified as independent contractors are often denied important benefits and protections under the law, such as minimum wage, overtime compensation, family and medical leave, and unemployment insurance. Continue reading “Being Classified as an Independent Contractor Instead of an Employee Denies Workers Important Benefits and Protections Under the Law”
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.) Continue reading “The Road Ahead for California Truckers: Rest Breaks, Piece-Rate Work, and Federal Preemption”
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