Which Wage and Hour Laws Apply to California Public Employees?

Wage and hour laws require that employers pay minimum wages and overtime wages, provide meal and rest breaks, and pay all wages immediately upon termination of employment, among many other things.Gear and Gavel Public employees often wonder whether they are covered by these laws, or whether such basic protections do not apply to them.  The answer in California, in true lawyerly fashion, is, “it depends.”  This post will attempt to sort out which wage and hour laws apply to public employees and which, unfortunately, do not. Continue reading “Which Wage and Hour Laws Apply to California Public Employees?”


Arbitration and the California Supreme Court:  A Glimmer of Hope in Melendez

Corporations in recent years have made great strides in their efforts to hijack the American system of justice and force workers out of court and into mandatory arbitration.  Their hope is that arbitration is such a stacked deck (and often it is) that workers will choose not to try to enforce their rights.  They also hope that the “repeat player” phenomenon will give them a decisive advantage in terms of the results.  Sadly, all too often that is the case.

However, there are signs that some judges are beginning to realize exactly what is going on with mandatory arbitration-and what a travesty it is. Continue reading “Arbitration and the California Supreme Court:  A Glimmer of Hope in Melendez”


Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse

On March 28, 2019, a third California Court of Appeal weighed in on the issue of whether California employees who have signed arbitration agreements can bring claims under the Private Attorneys General Act (PAGA) for unpaid wages.

To set the stage, in Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228, the Fifth District Court of Appeal held that a PAGA claim can be split, and that PAGA claims for unpaid wages under Labor Code section 558 can be sent to individual arbitration.   In Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, the Fourth District Court of Appeal disagreed, holding that employees can bring those PAGA claims on a representative basis in court.

The Second District Court of Appeal has now weighed in on this issue in the case of Zakaryan v. The Men’s Wearhouse (March 29, 2019) Case No. B289192.  In that case, the court agreed with Lawson for the most part, but added this interesting twist:  Of the unpaid wages recovered, 75 percent must go to the State, and 25 percent to the workers.  In reaching this holding, the Zakaryan court relied on the fact that Labor Code section 558 was enacted before PAGA.  Therefore, PAGA’s later-enacted rule regarding the distribution of civil penalties recovered under that statute must control. Continue reading “Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse”


Is calling in to check your work schedule considered reporting to work?

Predictive scheduling laws have recently received a great deal of attention. Although California is considering passing statewide predictive scheduling laws, individual entities like the City of San Francisco have already enacted similar legislation. The push for predictive scheduling is to provide workers with stability and predictability by allowing them advance notice of their work schedules. […]


Are taxi drivers independent contractors under Dynamex’s ABC Test?

Whether an individual is an employee or independent contractor has become a hotly disputed legal topic. This classification is important because independent contractors do not receive employment-related protections, such as the right to minimum and overtime wages, the prohibition against discrimination, and workers’ compensation. In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th […]


The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2

On August 15, 2017, after remand from the U.S. Supreme Court, the Ninth Circuit issued a second opinion in the case of Robins v. Spokeo, case no. 2:10-cv-05306-ODW-AGR (Spokeo II).  Spokeo II clarifies the requirements for standing under the Fair Credit Report Act (“FCRA”).  At the same time, it leaves open two critical questions that will need to be resolved by future litigation. Continue reading “The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2”


Perez v. U-Haul: Employers cannot compel arbitration of standing issue in PAGA cases

Some companies continue to try to force employees to arbitrate their individual PAGA claims before bringing their representative PAGA claims in court.  Two appellate decisions make it crystal clear that California courts have rejected these efforts, and that workers are not required to litigate PAGA claims in multiple forums.

By way of background, in Iskanian v. CLS Transportation, the California Supreme Court held that employers could not compel plaintiffs to arbitrate their representative PAGA claims.  In the wake of that case, some defendants began to argue that where workers had signed an arbitration agreement, they should be required to arbitrate their individual claims before proceeding with their representative claims in court. Continue reading “Perez v. U-Haul: Employers cannot compel arbitration of standing issue in PAGA cases”


Morris v. Ernst & Young -The Ninth Circuit Follows D.R. Horton

In an important decision for workers seeking to join together to enforce their employment rights, the Ninth Circuit Court of Appeals ruled in Morris v. Ernst & Young (https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/22/13-16599.pdf) that employers can not impose concerted action waivers in mandatory arbitration agreements. The Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act […]


Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods

Over the past decade or so, higher court rulings regarding class actions have tended to dramatically favor either corporations or workers.  Corporations have arguably scored the most significant victories.Gear-and-Gavel_dark-blue  However, with the recent exit of Justice Antonin Scalia from the United States Supreme Court, there are some indications that this tide has begun to turn.  At the same time, it is clear that a Republican victory in November 2016 would return a conservative majority to the Court, and devastate any positive momentum in terms of workers’ rights.

Vaquero v. Ashley Furniture Industries, Inc., No. 13-56606 (June 8, 2016), a recent decision of the Ninth Circuit, is a good example of the type of decision that we can hope to see more of in the future.  Vaquero does three important things.   First, it properly limits the scope of Wal-Mart v. Dukes, 564 U.S. 338 (2011) with respect to the issue of commonality.  Second, it limits the impact of Comcast v. Behrend, 133 S. Ct. 1426 (2013) in wage and hour class actions.  Finally, it underscores the critical holding in Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016) that plaintiffs may continue to rely upon representative evidence to prove both liability and damages.  As such, Vaquero provides powerful ammunition for workers and their advocates in class actions. Continue reading “Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods”


Representative Evidence May Be Used to Prove Class Action Wage Claims

In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Gear-and-Gavel_blackStandards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages.  Continue reading “Representative Evidence May Be Used to Prove Class Action Wage Claims”