Employers Have to Reimburse Workers for Work-Related Cell Phone Expenses Even if Employees Have Unlimited Plans
Employees often do not think they are entitled to reimbursement of cell phone expenses if they have an unlimited plan. Likewise, employers may also presume that they are under no obligation to reimburse their employees for using cell phones for work-related issues if the employees have an unlimited plan. However, they are incorrect.
Under California Labor Code section 2802, an employer must indemnify employees for all expenses incurred as a result of performing their duties. (more…)
Removability of PAGA actions to Federal Court
This blog is the third in a series regarding recent PAGA jurisprudence. It focuses on developments regarding the removability of PAGA claims to federal court. (more…)
PAGA and Arbitration: Representative Actions Are Alive and Well in California
This post is the second in a series of posts on developments in PAGA jurisprudence in 2015. It focuses on the interplay between PAGA and arbitration agreements. (more…)
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…)