PAGA’s Exhaustion Requirements: Guidance from the 9th Circuit
The Private Attorneys General Act of 2004 (Labor Code[1] §§ 2698-2699.5) (“PAGA”) was enacted in 2004 in order to allow employees to bring representative actions to recover civil penalties for violations of the Labor Code. Once an afterthought, in recent years PAGA claims have become increasingly popular.[2] As the number of PAGA claims has grown, the PAGA landscape has become ever more hotly contested.
This post is part of a series of posts exploring recent development in PAGA jurisprudence. It focuses on PAGA’s exhaustion requirements. (more…)
The Arbitration Struggle Continues: One (more) Courageous Judge Stands Up For Workers
The Chinese philosopher Laozi is reputed to have said that a journey of a thousand miles begins with a single step. A corollary is that a long journey only continues if people are courageous enough to continue it, despite the daunting odds they may face.
A California federal judge recently joined the group of jurists who have been courageous enough to push back against the efforts to force workers and consumers out of court and into binding arbitration. The ills and abuses associated with employment arbitration are well documented, and will not be revisited here. (The New York Times ran an excellent series about those ills and abuses in 2015, which revealed that Chief Justice John Roberts of the United States Supreme Court was among the attorneys who came up with the legal strategy of forcing people into arbitration.) But it is encouraging that the struggle over arbitration is far from over, and there are some glimmers of hope for workers.
In Totten v. Kellogg Brown & Root, U.S. District Judge Dolly M. Gee denied defendant KBR’s motion to compel individual arbitration in a wage and hour class action. Judge Gee did so despite the fact that the plaintiff had signed an agreement to arbitrate his grievances in an individual manner. Judge Gee based her order on the D.R. Horton, Inc. case, a decision of the National Labor Relations Board. In D.R. Horton, the Board found that class actions are protected concerted activity under the National Labor Relations Act (NLRA). As such, private agreements that ban such class actions are unenforceable. (more…)
An Employer Cannot Retaliate Against an Employee For Filing a Police Report
Plaintiff Rosa Lee Cardenas, a dental hygienist, lost an expensive wedding ring in the workplace. Suspecting that a coworker stole the ring, Ms. Cardenas wanted to file a police report. However, her employer expressed his disapproval and requested that Ms. Cardenas not tell the police that she left the ring on the 
breakroom table at work. Despite her employer’s objections, Ms. Cardenas filed a police report. After the police came to the dental office on two occasions to investigate, Ms. Cardenas’ employer told her the situation was causing great tension and fired her.
Do I Get Paid Sick Leave?: Decoding California’s New Paid Sick Leave Requirements
In 2015, the California Healthy Workplace Healthy Family Act (AB 1522) came into effect. Because of this new law, many California employees are now entitled to paid sick leave. Below are answers to some frequently asked questions about California’s new paid sick leave law. (more…)
Your Employer is Prohibited from Retaliating Against You for Asking for an Accommodation
Under Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, an employee who requested an accommodation did not engage in a protected activity for purposes of a Fair Employment and Housing Act (“FEHA”) retaliation claim. Workers’ rights advocates throughout the State celebrated when Governor Jerry Brown overturned the incorrect result in Rope and signed Assembly Bill (“AB”) 987 into law this year.
Under AB 987, employees no longer need to fear retaliation from their employers if they request a reasonable accommodation. (more…)
How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision
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. (more…)
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. (more…)
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.
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. (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.) (more…)