SLAPP Motions and Discrimination Claims: The California Supreme Court Limits Defendants’ Ability To Attack FEHA Cases

California has a powerful statute that is aimed at protecting our right to engage in free speech.  Known as the SLAPP law, Code of Civil Procedure section 425.16 allows people who are sued for engaging in free speech to bring a motion dismiss the lawsuit that has been filed against them.  In order to prevail on such a motion, the defendant in such a lawsuit must show that the claims at issue arise from protected activity.  If the defendant makes that showing, the plaintiff must then prove that the claims have some degree of merit.

In recent years, public entities have begun to rely on the SLAPP law to challenge lawsuits claiming discrimination or retaliation under California’s Fair Employment and Housing Act (FEHA).  For example, in Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, a hospital brought a SLAPP motion in a case in which a doctor claims to have been discriminated and retaliated against.  The Nesson court held that the hospital’s peer review proceedings were official proceedings.  Therefore, decisions that resulted from those proceedings were protected by the SLAPP law.  See also DeCambre v. Rady Children’s Hospital-San Diego (2015) 235 Cal.App.4th 1, 22.

However, on May 4, 2017, the California Supreme Court recently limited employers’ ability to rely upon the SLAPP law in discrimination cases.  In Park v. Board of Trustees of the California State University (2017) S229728 the Court held that a claim for national original discrimination under the FEHA did not arise from protected activity.  Therefore, it was not subject to the SLAPP law.

The plaintiff in Park sued after he was denied tenure at California State University, Los Angeles.  The University then moved to dismiss Park’s claim on the grounds that it arose from the decision to deny tenure and the communications that led up to that decision.  As such, the University claimed that Park’s lawsuit arose from protected activity.

The Court rejected the University’s argument.  The Court reasoned that the basis of Park’s claim was the decision to deny Park tenure.  The decision to deny tenure may have been communicated either verbally or in writing, but that did not convert the lawsuit into one arising from the exercise of free speech.  Similarly, Park might rely upon certain comments that were made about him to show discriminatory animus.  But that did not convert his case into one that arose from protected speech.

The Court also limited the scope of an earlier decision, Kibler v. Northern Inyo County Local Hospital Distr. (2006) 39 Cal.4th 192.  The Court clarified that its holding in Kibler was only that hospital peer review proceedings could be (not that they always were) official proceedings for the purposes of the SLAPP law.

Interestingly, the Court did not address an issue that arose in an earlier case called Hunter v. CBS Broadcasting Inc. (2013)  221 Cal.App.4th 1510.  In Hunter, the court of appeal found that a defendant news media organiation’s refusal to hire a particular person as a weather news anchor was in furtherance of protected speech.  The defendant in Park tried to rely upon a similar argument, however the Court found that it had not developed that argument sufficiently.

If you have been discriminated against or retaliated against at work, feel free to contact the attorneys at Hunter Pyle Law for a free initial intake.  We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com

The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act

The Equal Pay Act prohibits employers from paying men and women differently for equal work.  However, is it unlawful for an employer to have a policy that offers its new hires a salary that is five percent higher than their previous salary if the policy results in a female worker getting paid less than all her male colleagues?

 

In a 1982 decision, Kouba v. Allstate Insurance, the Ninth Circuit held that an employer can take prior salary into account when deciding an employee’s pay rate if the prior salary effectuated a business policy and was reasonable.  691 F.2d 873 (9th Cir. 1982).  In a decision last month, the Ninth Circuit provided further guidance on the extent to which employers can rely on prior salary in determining its employees’ pay.  Rizo v. Yovino, No. 16-15372 (April 27, 2017).  (more…)

No Arbitration of PAGA Claims

PAGA continues to be an important tool for workers in California seeking to enforce their rights under the Labor Code.  Employers continue to try to force PAGA claims into arbitration, where they think that they have a decisive advantage.  Yet courts continue to block these efforts.  As a result, PAGA claims remain in court where they belong.

The latest case to hold that PAGA claims cannot be arbitrated is Hernandez v. Ross Stores, Inc. (2d DCA Pub. Order 1/3/17) E064026.  There, the plaintiff, a warehouse worker, sought to bring a PAGA-only action against the discount store giant for failure to pay wages, failure to properly itemize hours, and failure to pay overtime.  Ross attempted to compel Hernandez to arbitrate her individual claims, arguing that its arbitration agreement stated that it applied to “any disputes arising out of or relating to the employment relationship” between Ross and an employee.  Ross contended, based upon this language, that before Hernandez could bring a PAGA action, she had to arbitrate the “dispute” over whether she was an aggrieved employee.

Not surprisingly, this too-clever-by-half argument failed.  Both the trial court and Division Two of the Second District Court of Appeal held that Hernandez could not be compelled to arbitrate her PAGA claims.  The trial court grounded its analysis in the seminal case of Iskanian v. CLS Transportation (2014) 59 Cal.4th 348, which held that PAGA actions-whether seeking penalties for one employee or for a group of them-are fundamentally law enforcement actions designed to protect the public.  In PAGA cases, there are therefore no individual claims to arbitrate. (more…)

Rest Period Pay and Overtime Premiums for Piece-Rate Workers

A complicated and developing area of California wage and hour law involves how to calculate wages and premium pay for piece-rate workers. In this post, we will explain the calculations for rest period wages and overtime premiums for piece-rate workers.

Many California workers are compensated on what is known as a “piece-rate” basis. Piece-rate means that a worker’s pay is based on a specific amount paid for completing a particular task or making a particular piece of goods. This could include truck drivers who are paid based on the number or type of loads delivered, factory workers who are paid based on the number of widgets completed, or construction workers, such as plumbers or electricians, who are paid based on the number of installations they do.

Even though piece-rate workers are not paid by the hour, they are still entitled to the protections provided by the California Labor Code. These protections include overtime premium pay for more than eight hours of work in a day or 40 hours in a week, meal periods before the end of fifth hour of work, separate compensation for required rest periods, and wage statements showing, among other things, the number of pieces completed, the applicable piece rates, and overtime and rest period pay.

But if someone is paid by the piece, how is their hourly wage calculated for the purpose of determining the amount of wages for paid rest periods and overtime premiums?

(more…)

No On Call or On-Duty Rest Periods in California

On December 22, 2016, the California Supreme issued a blockbuster opinion in the case of Augustus v. ABM Security Services, Inc. (S224853).  As described more fully below, the Court held that California law prohibits both “on call” and “on duty” rest periods.  On call rest periods are those in which an employee is available by phone or by radio.  On duty rest periods are those in which the employees continue to perform some job duties.  For example, the plaintiffs in Augustus claimed that:

ABM required guards to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The holding in Augustus means that employers must relieve their workers of all duties, and relinquish all control over them during their breaks.  As such, Augustus is consistent with the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  Like Brinker, Augustus is a huge win for workers.

(more…)

Penalties for Late Payment of Wages under California Labor Code 204

How soon after payroll period are employers required to pay employees?

Employers in California have to pay their employees by a certain date.  That date depends on whether the payments are made every two weeks (bi-weekly), twice a month (bi-monthly), or otherwise.  If an employer does not make its payments on time, it can face significant liability under the Private Attorneys General Act, as described below. (more…)

Another Win for Workers in the War over Sampling and Damages in Class Actions

As workers have increasingly turned to class actions in order to combat wage theft and other unlawful actions in the workplace, employers have fought back on a number of fronts.  Two issues that have Gear-and-Gavel_dark-bluegotten a lot of attention lately are (1) the use of sampling and (2) the role of individualized damages.

How courts rule on the issue of sampling is important because it is often an effective way for workers to manage issues that arise in the class context.  How courts rule on the issue of individualized damages is critical because sometimes employers have unlawful policies or practices, but not all employees are damaged by them.  Under those circumstances, should the employees who have been damaged be able to bring a class action to vindicate their rights?

On November 21, 2016, workers in California won a significant victory with respect to both sampling and damages.  In Lubin v. Wackenhut (Second App. Dist.,  case no. B344383), the court of appeal reversed an order decertifying the class in a case brought by private security officers.  As a result, those workers will be able to proceed to trial and to bring their claims on a class-wide basis. (more…)

California Truck Drivers and Meal Breaks

A company’s failure to provide the meal breaks that are required by law can give rise to PAGA penalties.  In 2012, the California Supreme Court clarified some of the basic rules that apply to meal breaks in the seminal case of Brinker Restautant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  A recent case further clarifies how the rules regarding meal breaks apply to truck drivers in California.

In Driscoll v. Granite Rock Company (6th Appellate District, November 30, 2016, case no. H037662) the defendant was a concrete company that manufactures, delivers, and pours concrete.  The defendant hired mixer drivers to deliver the concrete to customers such as home owners and contractors.

The defendant provided its drivers with a handbook that stated that they had the right to take a 30 minute off-duty meal break during which the drivers were not paid.  The defendant also offered its drivers the opportunity to take an on-duty meal break-in other words, a meal break where the drivers kept working and kept getting paid.  On-duty meal breaks are allowed only:

[W]hen the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.

Critically, such agreements must be revocable by the employee at any time.  In Driscoll, the court found that the requirement of one day’s notice to revoke an on-duty meal break agreement violated the requirement that employees be able to revoke such an agreement at any time.

However, the court also found that no driver was ever denied an off-duty meal break if he or she requested it.  Additionally, the defendant allowed drivers to revoke their on-duty meal break agreements as long as they gave at least one day’s notice.  If drivers chose not to sign an on-duty meal break agreement, or revoked their agreement, and missed a meal break, they were paid one additional hour of pay.

Based on these facts, the court found that the drivers had failed to prove that the defendant violated the law with respect to meal breaks.  Specifically, the court found that the drivers had not been forced or coerced into signing the on-duty meal period agreements against their will.  The court also found that the defendant had not interfered with the drivers’ ability to take off-duty meal breaks.

After Driscoll, California drivers who are concerned about their meal breaks should ask the following questions:

  1. Does your employer have a policy that provides you with a 30 minute, uninterrupted, off-duty meal break if you work more than 5 hours, and a second meal break if you work more than 10 hours?
    • Are you relieved of all duty during such breaks? If not, there may be a violation.
    • Does your employer have control over you during your meal breaks? If so, there may be a violation.
  1. Does your employer do anything to interfere with your ability to take your meal breaks?
    • For example, is your schedule too busy to take breaks? If so, there may be a violation.
    • Does your employer discourage you from taking breaks? If so, there may be a violation.
  1. Have you signed an agreement to take on-duty meal breaks?
    • Is there something about your industry that prevents you from being able to take off duty meal breaks? If not, there may be a violation.
    • Can you revoke your off-duty meal break agreement at any time? If not, there may be a violation.
  1. Are you paid an extra hour of pay when you miss a meal break? If not, there may be a violation.

The Driscoll case also discusses how the practices of a particular industry may impact the legality of an employer’s meal breaks.  In particular, the court found that the nature of the work (pouring concrete) made it more difficult to schedule off-duty meal breaks because freshly batched concrete must be poured within 60 to 90 minutes in order to insure its structural integrity.  This made it reasonable for the defendant to offer on-duty meal breaks to its drivers.

If you have a question about your meal breaks and/or California’s Private Attorneys General Act (“PAGA”), feel free to contact Hunter Pyle Law for a free consultation.  We can be reached at 510.444.4400, or inquire@hunterpylelaw.com.

California Fair Pay Act Expands State Law Against Pay Inequality

gavel-952313-mThe California Equal Pay Act prohibits employers from paying men and women differently for equal work.  On October 6, 2015, Governor Jerry Brown signed the California Fair Pay Act, which expanded and strengthened the Equal Pay Act in several respects.  Under the California Fair Pay Act, employers are required to pay men and women equally for “substantially similar work” rather than merely “equal work.”  “Substantially similar work” refers to work that is similar in skills, effort, and responsibility, and performed under similar working conditions.

(more…)

Can California Employers Combine Rest Breaks into One Break?

One common source of PAGA penalties occurs when employers fail to authorize and permit the rest breaks that are required under California law.   When this happens, workers can recover one hour of pay at their regular hourly rate for each day they are deprived of one or more rest breaks.  They can also seek penalties under PAGA, as well as their attorney’s fees.

A recent decision by the Second District of the California Court of Appeal clarifies the timing of rest breaks, and whether rest breaks can be combined into a single break.  Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027 involved a class action brought by workers who paint metal parts manufactured in machine shops.  The workers worked eight hour shifts, so they were entitled to two ten minute rest breaks.  EME, the employer, required the workers to take their two rest breaks in one combined break that lasted 20 minutes.

The court looked closely at the language of Wage Order No. 1-2001, which provides as follows:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.

The court also considered the holding in the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  There, the California Supreme Court held that employers could deviate from the preferred course of providing rest breaks in the middle of each work period “where practical considerations render in infeasible.”  The Rodriguez court also noted this critical language from Brinker:

As a general matter, one rest break should fall on either side of the meal break.  Shorter or longer shifts and other factors may alter this general rule.

Id. at 1032.

One of the critical questions resolved by Rodriguez is what the phrase “insofar as practicable” means.  The court interpreted that phrase narrowly, holding that an employer could depart from the preferred schedule only where it could meet two requirements:

  1. Departing from the preferred schedule of two rest breaks, with one on either side of the meal break, would not unduly affect employee welfare; and
  2. The departure is tailored to alleviate a material burden that would otherwise be imposed on the employer.

The court then turned to the evidence submitted by the parties.  If found that a single declaration submitted by the plaintiff was sufficient to defeat the employer’s motion for summary judgment.  This was somewhat surprising, given that the employer had submitted a large amount of evidence in support of its motion.

The court then turned to the question of whether the term “work period” meant the two work periods that fall on either side of the meal break under the preferred schedule, or something else.  The defendant, along with various employer-side legal organizations, argued that the term “work period” means the entire shift, and that an employer’s only obligation was to ensure that during the entire shift, the meal and rest breaks divide the shift into approximately equal work periods.

The court rejected the defendant’s argument.  Instead, it held that in an eight hour shift with a single meal break, the preferred schedule requires the provision of two rest breaks, with one in the middle of each of the work periods that fall either side of the meal break.

Last, the court considered the issue of under what circumstances an employer can combine two or more rest breaks into one longer rest break.  The court noted only one situation where that type of combination was permissible:  when an employer’s business requires shifts in which the meal break must be taken soon after the workers start their shifts.  (One example of this type of situation might be in a restaurant where the waitstaff eat their meals before the rush of customers makes it impossible to take breaks.)

Rodriguez thus establishes that employers that choose to depart from the standard meal and rest break schedule must be two relative stringent requirements.  Otherwise they will face significant liability under California’s wage and hour laws.

If you have questions about the meal or rest breaks at work, please feel free to contact Hunter Pyle Law for a free consultation.  We can be reached at inquire@hunterpylelaw.com or 510.444.4400.