In Iskanian v. CLS Transportation Los Angeles, LLC, filed on June 23, 2014, the California Supreme Court strengthened the Private Attorneys General Act (PAGA), Labor Code § 2698, et seq. Specifically, the Court held that arbitration agreements that waive employees’ right to proceed with representative PAGA 
actions violate public policy. As such, they are not enforceable. This aspect of the Court’s opinion is a huge win for employees, and means that PAGA actions are alive and well even where employers seek to avoid them through contractual waivers. Continue reading “A Win for California Workers: Iskanian Upholds and Strengthens PAGA Claims”
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The Bad News: Supreme Court finds Qualified Immunity in Lane v. Franks
[This is the second of two posts on the United States Supreme Court’s decision in Lane v. Franks. The facts of the case and its procedural history are set forth in the first post, and will not be repeated here.]
After siding with the plaintiff in the first part of its opinion, the Supreme Court turned its attention to the issue of qualified immunity. Qualified immunity is a judicially created doctrine that drastically limits people’s ability to sue public officials for illegal conduct. The way that it works is that courts are not permitted to award damages in lawsuits against government officials in their personal capacity unless two requirements are met:
First, the government official must have violated a statutory or constitutional right.
Second, the right at issue must have been clearly established at the time of the violation. However, in order for a court to find that a right was clearly established, there does not need to be a prior case with identical, or even materially similar, facts. Instead, the question is whether the preexisting law provided the defendant with fair warning that his or her conduct was unlawful. See Flores v. Morgan Hill (9th Cir.2003) 324 F.3d 1130, 1136-37.
In Lane, the Supreme Court found that the appropriate question for resolving whether qualified immunity applied was whether the defendant, Mr. Franks, could reasonably have believed, at the time that he fired the plaintiff, that a public employer could terminate an employee because of testimony that the employee gave that was outside of the scope of the employee’s normal job duties. Continue reading “The Bad News: Supreme Court finds Qualified Immunity in Lane v. Franks”
Read more...The Good News: Supreme Court Expands Free Speech Protection in Lane v. Franks
In Lane v. Franks (June 19, 2014) No. 13-483, the Supreme Court of the United States provided further guidance regarding two important issues for government employees who blow the whistle. First, the Court explained that speech that merely concerns the employee’s job duties, as opposed to being part of the employee’s job duties, is protected under the First Amendment. Second, the Court clarified what a government employee must show in order to survive a motion to dismiss based on qualified immunity. (The qualified immunity issue will be discussed in a separate blog post that will follow shortly.) Continue reading “The Good News: Supreme Court Expands Free Speech Protection in Lane v. Franks”
California Court Clarifies Exhaustion and Minimum Number of Employees Requirements under the Fair Employment and Housing Act
A recent decision from California’s Fourth Appellate District clarifies two oft-ignored aspects of claims brought under the Fair Employment and Housing Act (FEHA): the administrative exhaustion requirement and the requirement that an employer have at least five employees in order to be covered by the FEHA. Continue reading “California Court Clarifies Exhaustion and Minimum Number of Employees Requirements under the Fair Employment and Housing Act”
U.S. Supreme Court Expands Whistleblower Protections
The Sarbanes-Oxley Act of 2002 (“SOX” or “the Act”) was enacted in the wake of the financial scandals that occurred in the nineteen-nineties and early aughts. SOX was a response to the brazen behavior of companies like Enron that, in conjunction with their accounting firms, engaged in massive fraud to inflate their supposed value. When these companies later filed for bankruptcy, their shareholders and workers lost billions of dollars. Subsequent criminal convictions of scoundrels like Kenneth Lay did little to comfort those who lost large portions of their pensions.
Among other things, SOX was written so as to protect whistleblowers-people who report unlawful or dishonest behavior-at publicly traded companies. Section 1514A of the Act protects such whistleblowers from demotion, harassment, and termination, among other things:
No [public company]…or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee…because of [whistleblowing or other similar activity]
Note that Section 1514A includes not only officers and employees: It also includes contractors and subcontractors of such companies. This language therefore raises the question: Does Section 1514A protect workers at privately held companies that contract with publicly held companies? (This is a fair question. The title of SOX, after all, is “Whistleblower Protection for Employees of Publicly Traded Companies.” It does not mention anything about contractors or subcontractors.) Continue reading “U.S. Supreme Court Expands Whistleblower Protections”
Read more...PAGA Claims Remain In State Court Where They Belong
Workers in California have a powerful tool for combating wage and hour violations: the Private Attorneys General Act, or PAGA, California Labor Code section 2698, et seq. PAGA allows workers to bring civil cases seeking penalties that otherwise would be available only to the Labor and Workforce Development Agency.
PAGA cases are almost always filed in state court. Employers seeking to defeat PAGA actions have increasingly been attempting to remove them to federal court. This is because federal judges are generally viewed as more pro-employer on the issues that arise in PAGA cases than state court judges. In other words, employers believe that they are more likely to win in PAGA actions if they are in federal court.
However, in another win for plaintiffs who seek to bring PAGA actions, the Ninth Circuit recently held that PAGA claims are not class actions. Thus, they are not subject to the Class Action Fairness Act, or CAFA. Continue reading “PAGA Claims Remain In State Court Where They Belong”
Read more...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 Co. (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. Continue reading “What a Plaintiff Must Show To Win in an Off The Clock Case”
Read 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 are 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. Continue reading “Duran v. U.S. Bank: Statistics Remain an Important and Viable Tool in Achieving Class Certification”
Read more...California Takes Hopeful Step to Raise the Minimum Wage to a Living Wage
The California minimum wage is set to increase to $9.00 an hour, effective July 1, 2014. This week, though, the State Senate approved more a more drastic measure to increase minimum wages. On May 29, the State Senate approved a measure that would slowly but surely raise the minimum up to $13 an hour in 
2017. The bill is being sponsored by Senator Mark Leno of San Francisco, who wants to help the 7.9 million Californians who are currently earning minimum wages to climb out of poverty. Continue reading “California Takes Hopeful Step to Raise the Minimum Wage to a Living Wage”
The Law Regarding “On-Duty” Meal Periods in California
What is an on-duty meal period? An on-duty meal period is one in which the employee is not relieved of all duties. In California, on-duty meal periods are only legal under certain narrow circumstances. On-duty meal periods are only legal if: The nature of the work prevents an employee from being relieved of all duty. […]
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