Saving Your Constitutional Right To A Day In Court: The Arbitration Fairness Act
Imagine after months of unemployment (not hard to imagine these days), you survive a rigorous application and interviewing process to finally arrive at that climactic moment of landing a job. In your state of euphoria, and as day one as a perfect no-hassle employee. You hastily review and sign the standard new hire documents you’re given, knowing that there is nothing you could do about the content, anyways. You sign everything and vaguely hope you haven’t signed away the soul of your first born.
A while later, well after the new job excitement has worn off, you realize that maybe you should be getting paid for overtime, or maybe your supervisor should stop referring to you by a racial nickname. Maybe you complain about these new discoveries in your workplace, and are promptly fired.
No problem! You know you have rights. You contact an attorney with the intention of filing a lawsuit. Then you realize, those new hire documents you signed on day one have come back to haunt you. You’re informed that you signed an arbitration agreement and have to submit to binding arbitration. Binding arbitration with an arbitrator chosen (and paid) by your now nemesis. (more…)
Employers May Not Force Employees to Arbitrate PAGA Claims for Labor Code Violations
Brown v. Superior Court, Case No. H037271 (6th App. Dist. June 5, 2013) represents another important victory for workers in California. In Brown, the court held that employers may not force employees to arbitrate their claims under California’s Private Attorney General Act, Labor Code section 2698, et seq., also known as “PAGA.” This is because PAGA claims are representative actions intended to advance a public purpose. A private agreement attempting to waive the right to take such representative actions is unenforceable because it prevents employees from exercising their unwaivable statutory rights.
In Brown, the plaintiffs had signed an arbitration agreement that waived their right to pursue any type of class or representative action. In their lawsuit, the plaintiffs brought claims for unpaid wages and overtime, among others. They also brought claims under PAGA. (Many sections of the California Labor Code provide for civil penalties, often in the amount of $50 or $100 per violation. PAGA allows employees to bring representative actions to recover those penalties in representative actions brought on behalf of other employees.)
The employer then attempted to force the plaintiffs to arbitrate all of their claims, including their PAGA claims. If successful, this would have resulted in the plaintiffs losing their right to pursue claims on behalf of other employees. The trial court agreed with the employer. However, the Court of Appeal for the Sixth Appellate District blocked the employer from doing so. (more…)
On-Duty Meal and Rest Breaks: Workers May Proceed In Class Action Even If Some Got Breaks
The recently published decision in Faulkinbury v. Boyd & Associates, G041702 (Cal.App.4th May 10, 2013) (Faulkinbury II) clarified several important issues in wage and hour class actions. First, the court held that a trial court must certify a class where an employer requires all employees to sign meal-break waivers-even
when some of the employees are able to take off-duty meal breaks. Second, the court held that the lack of a uniform rest break policy may create a common issue that is sufficient for class certification. Third, the court held that an overtime policy that fails to include bonuses and other allowances in calculating the overtime rate of pay presents common questions suitable for class treatment.
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A Victory For Low-Wage Workers: Class Actions Remain The Best Way To Protect The Rights Of Large Numbers Of Employees
Class actions are important tools for protecting the rights of workers-particularly those workers on the lower rungs of the economic ladder. When large numbers of these workers are denied their rights in the workplace-such as overtime pay or meal and rest breaks, they can join together in a class action to demand justice.
Large and powerful companies that have been subject to this type of litigation hate class actions. And it is no secret that these business interests have seduced the conservative faction of the United States Supreme Court into doing their bidding. In decision after decision, those same five justices have contorted the law, the facts, and their rational facilities, in an attempt to gut the class action device. Arbitration (Concepcion), removal to federal court under the Class Action Fairness Act (Standard Fire), and class certification itself (Dukes) have all been manipulated in an overt effort to prevent poor and working class people from having their day in court.
Thankfully, there are many brave and conscientious judges who have resisted this trend. For example, on May 28, 2013, the Court of Appeals for the Ninth Circuit issued its opinion in Leyva v. Medline Industries, Inc. Leyva addressed the critical issue of whether individual damages calculations can defeat commonality for the purpose of class certification. For many years, in both the state and federal courts, the answer to that question had been no. See, e.g., Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Brinker v. Superior Court, 273 P.3d 513, 546 (2012). (more…)