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.Gear-and-Gavel_dark-blue (more…)

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 Gear-and-Gavel_dark-bluesupposed 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.) (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. (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 Gear-and-Gavel_dark-blueCo. (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. (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 areGear-and-Gavel_dark-blue 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. (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 Gear-and-Gavel_black2017. 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. (more…)

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:

  1. The nature of the work prevents an employee from being relieved of all duty.
  2. The employer and the employee agree to on-duty meal periods in writing.
  3. The meal period is paid.
  4. The agreement to waive the meal period can be revoked at any time in writing by the employee.

Meal Period Regulations in California

Gear-and-Gavel_goldCalifornia employers are generally required to provide an unpaid, off-duty meal period of at least 30 uninterrupted minutes to its non-exempt employees for every five hours of work. During these meal periods, employees must be relieved of all duties and employers must relinquish control over their activities. Employers may not impede or discourage employees from taking their breaks. See Brinker v. Superior Court (2012) 53 Cal.4th 1004; California Labor Code §226.7; 8 Cal. Code Regs. §11040. If an employee is not afforded a 30-minute uninterrupted meal break for every five hours worked, the employer must compensate the employee for one additional hour of pay for each workday that the meal break is missed. California Labor Code §226.7.

Sometimes, in an attempt to circumvent this law, employers ask employees to sign forms agreeing to take “on-duty” meal periods. However, on-duty meal periods are permissible only under very limited circumstances, as described above.

Under this narrow exception to the general rule that employers must provide off-duty meal periods, an employer who opts to implement on-duty meal periods carries the burden of establishing that the facts justify an on-duty meal period. Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 961 (9th Cir. Cal. 2013); see also Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014). Because on-duty meal periods are limited alternatives to the off-duty meal requirement, various factors are considered when analyzing employer-mandated on-duty meal periods. If an employer has a qualified representative who can perform the duties, the on-duty meal exception may not apply. Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014) (citations omitted). However, if a position calls for an employee to be on duty at all times and that employee is the sole employee of a particular employer, the exception may apply.

Hunter Pyle Law recently represented a client whose employer had a blanket policy mandating that all dispatchers agree to “on-duty” meal breaks. The employer required our client to sign an on-duty meal period agreement despite the fact that she worked with one to two other dispatchers at all times. The other dispatchers could have relieved our client of her duties. Our firm was able to settle this case before filing a lawsuit on favorable terms on the grounds that the employer could not meet its burden in demonstrating that the on-duty meal period exception was justifiable.

If you have questions about your meal periods, on-duty meal agreements, or would like to speak with an experienced wage and hour attorney, please contact Hunter Pyle Law at 510.444.4400, or email us at ttambling@hunterpylelaw.com, for a free consultation.

The Wolf Guarding the Henhouse: Should Arbitrators Decide Whether To Enforce Arbitration Agreements?

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 Gear-and-Gavel_dark-blueyears, 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. (more…)

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? Gear-and-Gavel_dark-blue 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. (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 reportGear-and-Gavel_dark-blue 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. (more…)