A Bright Spot for Workers in Tuesday’s Dismal Election Results
Despite the lingering outrage and disapproval many of us have regarding the Republican victory at the polls last Tuesday, there were some major wins for workers across California and the country which should be embraced and not overlooked.
Raising Minimum Wages:
Starting local, both Oakland and San Francisco voted to raise their local minimum wages. Oakland’s minimum wage will go up to $12.25 next year and San Francisco is now on track to gradually increase its minimum wage to $15 by 2015. (more…)
Unpaid TV Interns Settle Large Class Action Against NBCUniversal
Last year, a federal judge in New York ruled that Fox Searchlight Pictures violated minimum wage laws by not paying interns that worked on the set of the movie “Black Swan.” In holding that employers could not simply avail themselves of free labor by calling employees “interns,” this case opened the pathway for other intern cases against entertainment industry giants.
In the latest victory, a group of former interns reached a 6.4 million dollar settlement with NBCUniversal this week, representing the largest settlement yet in this new streak of cases. While the original complaint involved New York interns, the case grew to include plaintiffs from other states. This recent settlement makes clear that companies need to change the blanket exploitation of interns across industries and across the country, or pay the significant price that inevitably come with the growth of these cases.
California Supreme Court Holds Fast Food Employee Cannot Sue Franchisor For Sexual Harassment Claims.
On August 28, 2014, the California Supreme Court ruled that Domino’s Pizza could not be held liable for sexual harassment claims by an employee of a franchisee. The highly anticipated decision came on the eve of Labor Day weekend, dealing a blow to franchisee employees seeking accountability and meaningful compensation from franchisors.
A Win for Commissioned Salespeople: Peabody v. Time Warner Cable, Inc.
In order to be exempt from the overtime requirements of California law (as well as other wage and hour laws such as those requiring meal and rest breaks), commissioned employees must meet two requirements: [1]
1. They must earn more than one and half times the applicable minimum wage[2] (“the minimum wage test”).
2. They must earn at least half of their wages from commissions.
This test therefore poses the following question: What about employees who, because of their commission structure, earn less than one and a half times the minimum wage in some pay periods? Are employers allowed to average an employee’s wages across pay periods in order to determine whether they meet the minimum wage test?
The California Supreme Court recently addressed this issue. In Peabody v. Time Warner Cable, Inc. the Court held that employers may not consider commission payments in other pay periods in order to meet the minimum wage test of the commissioned employee exemption.
Let the Franchisor Beware: The NLRB Finds That McDonald’s Is Liable for the Conduct of Its Franchisees
Many of the market leaders in the industries that pay the lowest wages (think of fast-food restaurants and convenience stores) use a common device to limit their liability for unlawful conduct: the franchise. These companies (franchisors) grant franchises to other entities (franchisees) to operate locations in their name. Often the franchisees have limited assets. As a result, employees who challenge illegal labor practices at the franchises are unable to collect any money even when they prevail on their claims.
Some of these market leaders also use the franchise device to deny responsibility for the conduct of their franchise operators. For example, in response to the growing movement to require fast food restaurants to pay their workers a living wage, many of the market leaders have dubiously claimed that they have no control over the wages that their franchisees pay. They are thus seeking to use the franchise as an excuse for washing their hands of culpability for a situation in which women and men who work full time remain mired in poverty.
SSP Attorney Mana Barari Appointed to State Bar Commission
Hunter Pyle Law is proud to announce that associate attorney Mana Barari has been appointed by the State Bar Board of Trustees to the California Commission on Access to Justice.
The California Commission on Access to Justice was established in 1997 to pursue long-term fundamental improvements in the civil justice system so that it is truly accessible for all, regardless of income, geography, or language ability. The Commission pursues a wide range of projects to fulfill its mission, including funding local legal services programs around the state, helping to establish and expand court-based self-help centers, and the publication of reports focusing attention on possible solutions to access problems.
Ninth Circuit Clarifies California Labor Law Protections for Truck Drivers in Dilts v. Penske Logistics
California labor laws almost always offer stronger protections than their federal counterparts, which set the minimum baseline for all states. However, for some categories of employees, the California Labor Code protections can be preempted by federal laws- meaning the federal law supersedes the California law. Federal preemption of California laws almost always translates into fewer protections for employees.
Two federal regulatory schemes in particular contain preemption clauses: the Federal Aviation Administration Authorization Act of 1994 (FAAAA), dealing with motor carriers (the trucking industry), and the Airline Deregulation Act of 1978 (ADA), dealing with the air carriers. Both laws bar the application of California laws “relating to the rates, routes, or services” of any air or motor carrier.
Guidelines from the Northern District Regarding Class Action Settlements
The United States District Court for the Northern District of California has issued a document called “Procedural Guidance for Class Action Settlements” (Guidance). The Guidance is extremely helpful, and offers a glimpse at the prevailing wisdom with respect to settlements of class actions, at least in federal court.
The first section of the Guidance addresses motions for preliminary approval (MPAs), making the following noteworthy points:
Ayala v. Antelope Valley: When are “Independent Contractors” really Employees?
On June 30, 2014, in Ayala v. Antelope Valley Newspapers, Inc., the California Supreme Court clarified the appropriate test to use when determining whether “independent contractors” are actually employees for the purposes of California’s wage and hour laws. The Court also provided a clear road map that lays out how courts should analyze class actions that raise this issue. These clarifications are welcome, and should help more plaintiffs achieve class certification in similar cases in the future.
The plaintiffs in Ayala deliver daily newspapers to people who subscribe to the Antelope Valley Press. Antelope Valley Newspapers, Inc. (Antelope) classifies these delivery men and women (called carriers) as independent contractors, not employees. As a result, they are deprived of the wage and hour protections to which they would otherwise be entitled.
An Epic Dissent: Justice Werdegar Nails it in Iskanian
The majority opinion in Iskanian has been discussed at length, both here and in every other employment blog that touches on California law. What has been overlooked, however, is the incredibly eloquent and persuasive dissenting (and concurring in part) opinion written by Justice Kathryn Werdegar.
The fundamental points made by Justice Werdegar are that (1) class actions are a form of collective action; (2) Congress has made it clear for eighty years that contracts that strip employees of the right to engage in collective action are illegal; and (3) therefore class action waivers are illegal and unenforceable.