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 
years, 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. Continue reading “The Wolf Guarding the Henhouse: Should Arbitrators Decide Whether To Enforce Arbitration Agreements?”
Blog
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? 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. Continue reading “Another Court Gets It Right: Class Certification Must Focus On Plaintiffs’ Theory Of Liability, Not Its Merits”
Read 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 report 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. Continue reading “Expanded Protection for Whistleblowers: California Labor Code Section 1102.5 “
Read more...Are Salespeople Exempt from Overtime under California Law?
Non-exempt workers earning an hourly wage in California are subject to state minimum and overtime requirements under California Labor Code sections 510 and 1194. However, there are some narrow exceptions which exempt these workers from these basic wage protections. One of these is the outside sales 
exemption, under Section 1171 of the California Labor Code.
The Industrial Welfare Commission (IWC) Wage Orders define an outside salesperson as a person who “customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.”
Fortunately for California workers, this is an area of law in which courts have decided that workers are more strongly protected under California law than under the similar federal exemption. The California Supreme Court considered the difference between California and federal law vis-à-vis the meaning and scope of the outside salesperson exemption in detail in Ramirez v. Yosemite Water Company (1999) 20 Cal.4th 785. Continue reading “Are Salespeople Exempt from Overtime under California Law?”
Read 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 organized.
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. Continue reading “Which Side Are You On: A Union for College Athletes?”
Read 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.
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? Continue reading “Salas v. Sierra Chemical: Will Employers Be Free To Discriminate Against Undocumented Workers In California? “
Read more...The Origins and Significance of May Day vs. Labor Day
In over 80 countries around the world, the first of May, or May Day, is commemorated and celebrated as a day of workers’ rights and workers’ solidarity. In many countries, the day is marked with marches and speeches, along with general festivities, which offer everyone a chance to reflect on the impact of labor regulations (or lack thereof) on their lives.
The official counterpart in the U.S., Labor Day, occurs on the first Monday of September and stands in stark contrast to the international celebration months before. While enjoyable in its own right, Labor Day is hardly more than a day routinely promised to barbecues, and erroneously marking the end of summer. This innocuous rendition of what should be a socially conscious holiday deprives us of the opportunity to reflect on the importance of workers’ rights advocacy in the past, and set goals for the future.
Surprisingly to many (including myself), the origins of May Day started here in the United States. The holiday stems back to the eight hour work day movement, which began circa 1864, when the abolition of slavery highlighted the importance of matching actual freedom with practical freedom- meaning adequate time to pursue family, education and leisure. Over twenty years later, the Federation of Organized Trades and Labor Unions (which later became the American Federation of Labor), proclaimed that “eight hours shall constitute a legal day’s labor from and after May 1, 1886.” Thus, on May 1, 1886, more than 300,000 workers across the U.S. went on a general strike in an effort to make the eight hour work day a reality. Continue reading “The Origins and Significance of May Day vs. Labor Day”
Read 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.) Continue reading “PAGA Continues to Provide an Avenue to Justice for Workers”
Read 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: Continue reading “The California Supreme Court and the fate of Class Actions”
Read 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? But as more and more employment cases […]
Read more...