California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

Typically, arbitration agreements are given to employees to sign when they are hired. These agreements usually state that both parties, employee and employer, agree to resolve their issues out of court should legal issues arise. Often time an arbitration agreement can require that this process take place in a specific jurisdiction/ particular geographic area and can also redefine or restrict some statutory issues.
 

However, there has been much debate over if these statutory restrictions are legal in California. One provision some companies have tried to include in their arbitration agreements was to take away the right for employees to be able to file a class action for any employment issues that might affect them and all of their similarly situated colleagues. This waiver is also commonly referred to as a class action waiver.

A recent ruling by The National Labor Relations Board (NLRB), In D.R. Horton, Inc. and Michael Cuda, concluded that as a condition of employment employers cannot require that employees sign arbitration agreements that give up their right to file a class action in any forum.
The NLRB did not apply the United States' Supreme Court's holding in AT&T Mobility v. Concepcion. This case had previously set president that class action waivers could be included in consumer arbitration agreements then to workplace arbitration agreements.
 

The NLRB held that: "employers may not compel employees to waive their [National Labor Relations Act (NLRA)] right to collectively pursue litigation of employment claims in all forums, arbital and judicial." The NLRB also stated that "[s]o long as the employer leaves open a judicial forum for class and collective claims, employee's NLRA rights are preserved without requiring the availability of classwide arbitration." Therefore, "[e]mployers remain free to insist that arbitral proceedings be conducted on an individual basis.”
 

Because this topic is being contested by both employees and employers it’s important to seek legal advice from an experienced California class action attorney. Labor law is complex and if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.

If you have any questions about this article or information on our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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After the decision for Wal-Mart v Dukes was announced many believed that it was significantly change class action litigation, specifically what was needed to certify a class action. The case also alleged Sexual Discrimination and much of the language seemed to apply to other kinds of class actions, those outside of the employment context entirely.

Particularly; will Dukes apply to collective actions under FLSA section 16(b)? 16(b) is what allows wage and hour claims to be filed collectively if the class members are “similarly situated”. In the past, most courts find this to mean that the class members must be able to show that they were subject to "a common policy or plan that violated the law." The best example of this was written by district court judge Sonia Sotomayor , Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y.1967).  However the Dukes Decision was related specifically to Rule 23(a)(2), which necessitates a commonality. In other words: Are the facts of the case common to the class?

In California Cruz v Dollar Tree, Case No. 3:07-04012-SC (N.D. Cal. July 8, 2011), demonstrates that Dukes will apply to wage and hour suits as well. Cruz represented all current and former Store managers of the Dollar Tree Stores in California. Cruz filled in Northern California courts alleging that they were misclassified as exempt from overtime but were in fact entitled to overtime pay as well as meal and rest breaks. The court certified the class in 2009.

In both of these cases the plaintiff won the first round, but this did not last. After the cases were certified the Ninth Circuit render it’s decision in Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009), and Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir 2009), rendering the class partially decertified. Then later The Ninth Circuit decertified a class of truck loading dock supervisors it had previously certified in Marlo v UPS, Case No. 09-56196 (9th Cir. 2011).

After Cruz v Dollar tree and Marlo v UPS were decertified the court felt obligated to reexamine Dukes v Wal-Mart, stating, "a forceful affirmation of a class action plaintiff's obligation to produce common proof of class-wide liability in order to justify class certification." The court’s interpretation of this requirement was "common proof to serve as the 'glue' that would allow a class-wide determination of how class members spent their time on a weekly basis." The end result, decertification of the class.

The bottom line is that no matter what you think the current labor law says about your employment rights, the laws are always changing. It can never hurt to reach out to an experienced California labor law attorney to evaluate your current situation.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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The nation has been anxiously awaiting the, the California Supreme Court opinion of California’s employment laws regarding non-resident employees who perform work in California. While the decision will likely force many employers to reevaluate their non exempt payment policies, specifically overtime. Presumably, a large number of lawsuits will follow, including class actions, demanding back pay of overtime.

Sullivan v. Oracle has been settled and appealed several times. The premise of the case was that several Arizona and Colorado residents were employed by Oracle as instructors; they argued that they were entitled to overtime under California law when they had preformed work in California. However, Oracle had classified the instructors as exempt employees and as such they were not paid overtime. This case required the interpretation of two labor laws principals; first whether or not the nonresidents were covered under California labor laws and second if they were classified properly as exempt employees. The federal Ninth Circuit Court of Appeal certified these issues for the California State Supreme Court to decide.

Most companies in California are aware that California law has several striking differences from the federal Fair Labor Standards Act (“FLSA”). Specifically exemptions from overtime under California labor law are examined differently than under the FLSA, specifically focusing on not what an individual’s “primary” duties are, but on the duties in which they are “primarily” engaged. Furthermore, California labor law requires that overtime be paid at time and half for hours 8-12 in a day and for double time for work performed beyond 12 hours in a day. Meal and rest breaks to non-exempt employees are also a requirement under California labor laws.

The California Supreme Court found that California’s overtime laws do apply to non-resident employees who perform work in California. The Court went a step further to conclude that the state overtime laws did not make a distinction between residents and non-residents, and clarified that it would defeat the purpose of those laws if employers could simply “import unprotected workers from other states.”

While the decision is limited to “California-based” employers; the court did not provide a definition for this term. As such, employers based outside California should not ignore Sullivan. There is every reason to believe that non-resident workers of employers based outside California will contend that they, too, should be covered by California’s wage-hour laws when working in the state. And, based on the broad language in Sullivan, there is every reason to believe the California Supreme Court might agree.

What Employee Should Do now when traveling to California to work

• Keep accurate records of your work hours and all breaks.
• Make a list of all the job duties you are expected to perform while in California.
• Keep accurate records of your travel time and all travel expenses, including mileage.

If you are not paid for all hours worked or have been classified as exempt from overtime contact an experienced California labor law attorney to examine your records. You might be owed back pay for your overtime, meal and rest breaks as well as travel time and expenses.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Most people are not paid to drive to work they are paid once they arrive and begin their work. Mike Ritti sued Lojack for his commute time and originally lost. However, Rutti v Lojack, March of 2010, the 9th circuit court of appeal found that Rutti and all other technicians at Lojack were owed their commute time from home to their first stop.

Mike Rutti worked for Lojack as an installation technician. As such he would drive a company vehicle from his home to the client’s location each morning to in install alarm systems. Lojack had several company policies regarding the work vehicle. Rutti was not allowed to: run personal errands in the vehicle, have any passengers other than co workers, use his cell phone while driving and he was required to go directly to the job in the morning and directly home at the end of his last appointment.

Rutti Sued Lojack on behalf of himself and all other technician for his commute time and for the time he spent performing “preliminary” activities, such as, mapping, receiving, prioritizing tasks/jobs, routing before leaving his home every morning. As well as the time he spent at the end of his day when he returned home to wrap up all of the necessary documentation from that day’s work.

Originally the court found that Rutti’s commute time and pre/post work activities were not compensable under the Employee Commuting Flexibility Act (ECFA). Then new case law presented its self: Morillion v Royal Packing Company, where the California Supreme Court found that employees must be compensated during time when an employee is subject to the control of the employer. Rutti filed an appeal and will receive back pay for the time he spend working off the clock during his commute. However, the court determined that the time he spent at home before and after his commute was not compensable based on the language found in the ECFA.

The ECFA states that employers are not required to compensate employees for activities which are preliminary to or postliminary to the employees principal activities. It further designates that even if the activities are related to the employees principal activity the time is still not compensable if it is de minimis.

In determining if an activity is de minimis the court considered:

• The practical administrative difficulty of recording the additional time
• The aggregate amount of compensable time
• The regularity of the additional work

The court found that Rutti’s pre and post activities were not integral to his principal activities and so they are not compensable.

In conclusion, if you have any restrictions placed on you by your employer during your commute to and from work you should have an experience California employment attorney review your case.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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California labor law attorneys have recently received an extended explanation of “commission wages” from the opinion given by the California Second Appellate District court. This explanation related directly to employees that are classified as exempt from overtime under the commissioned salesperson exemption. In the case Areso v. CarMax, Inc., it was decided that CarMax’s commission plan of a flat rate per sale would be considered commission wages.

Essentially the plaintiff Areso was unsuccessful in the class action in which he was claiming misclassification as exempt from overtime under the commissioned salesperson exemption and owed overtime. California labor law attorneys for Areso argued that overtime was owed because CarMax’s commission plan did not meet the requirements as “commission wages” under Labor Code Section 204.1, which necessitates commissions to be “based proportionately on the amount or value” of the sale of the employer’s property or services.

California labor law attorneys for CarMax were pleased to hear the court found CarMax’s commission structure is a “performance-based incentive system and thus fairly understood to be a commission structure” due to the language that commissions can be founded on the “amount” rather than “value” of cars sold, interpreting “amount” to mean the number of cars sold. Furthermore, the court agreed with labor law attorneys for CarMax’s argument that prior decisions necessitate commissions to be base on “a percentage of the price of the product or service” (as first articulated in Keyes Motors, Inc. v. DLSE, 197 Cal.App.3d 557, 563 (1987)) as dicta as it related only to the part of the statutory language in Labor Code § 204.1 interpreting the “value” of the product or service.

In order for someone to be considered exempt under the commissioned salesperson exemption, Labor Code Section 204.1, the employee:
• must be involved principally in selling a product or service (not making a product or rendering a service)
• The amount of their compensation must be based proportionately on the amount or value of the product or service.

The Court opinion also interpret the word “amount” in the statute, and found that a flat payment for each car sold satisfies the statutory stipulation because the commissions are compensated based on the “amount” or number of cars sold. Further, paying a flat amount for each car is “proportionate” because it is a one-to-one proportion where the “compensation will rise and fall in direct proportion to the number of vehicles sold.”

Flat fees and proportionate percentages can be a little confusing if you are unsure whether or not you are classified as exempt correctly you should contact a California labor law attorney to examine your exemption status and determine if you are entitled to any back pay for overtime you may have worked.
 

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This California class action originating in San Francisco has been in court for over a decade. Labor law attorneys for the plaintiffs assert that Wal-Mart has discriminated against millions of woman in over 170 separate job classifications, in terms of pay and promotions.

This would be the first class actions of its size that sets out to prove discrimination through the broader use of statistical models rather than direct evidence. If the Plaintiffs are successful this could mean a slew of similarly litigated discrimination class actions will flood the courts. Naturally corporations are holding their breath and watching closely to see the outcome as it could mean millions in liability.

There are some concerns with such a wide range of subclasses and situations. Wal-Mart argues that the plaintiff’s discrimination claims are too diverse to be banded together in a single action. They also try to point out that with so many different situations there is bound to be a few rogue managers that might have discriminated against woman in terms of pay or promotions, but that doesn’t necessarily mean that all women were treated similarly.

On the other hand the attorneys for the plaintiffs would argue Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women. Furthermore, that if there is a pattern of discrimination and Wal-Mart knew about it then shouldn’t they be held responsible.

Because of these concerns the justices could choose to remand the case to the lower court under a revised set of guidelines; rather than a divided court issuing an opinion and setting a precedent in such a case.
 

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California labor law attorneys fought to prove that it should be illegal to change the beginning and end days of the work week in order to evade 7th day payment of overtime. The California Supreme Court upheld this reasoning and the court also found that all on-call time where employees were required to sleep aboard the employment vessel will be paid as hours worked.

In Seymore v. Metson Marine, Inc., the employees were scheduled to work 14days on then 14 days off. Their primary job function was to attend to marine oil spills. However the Metson Marine designed the work week to begin and end in such a way that they would not have to pay the 7th day overtime pay on the second week (day 14). In other words the employees would be paid for overtime on the 7th consecutive day of work but they would not get paid for the last day of their 14 days. While the court recognized that employers do have the ability to choose the work week for payroll purposes the court noted that Metson Marine designed their work week simply to avoid payment of overtime on the 14th day, due to Metson’s lack of evidence proving anything to the contrary.

California labor law attorneys for the plaintiff were also successful in proving that the employees were not properly compensated for being on call or off duty stand by. Metson Marine would allow the employees to sometimes leave the ship, unpaid, for personal reasons however they required that the employees carry a phone, be within 45 minutes of the ship and they were not to drink alcohol. The court found that Metson Marine should have paid the employees during the on-call times as hours worked because of the restrictions that were placed on the employees during this time.

The California labor law attorneys for the plaintiff asked for payment of the 8 hours during which the employees were sleeping on the ship. Metson Marine did have one victory in this suit; the court held that the sleep time of the employees was subject to payment as time worked.
If you are concerned that you have not been paid properly for being placed on call or standby and or overtime, please contact an experienced California labor law attorney to review your situation.

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Have you worked in California for Wells Fargo any time after August 20, 2008 as a “telephone banker” or in a similar position at a Wells Fargo call center?

Our investigation reveals that call center personnel described as Telephone Bankers were not fully paid for work performed on their shifts.

We believe there are substantial unpaid wages and penalties due to this group of California employees and we would like to speak with you regarding your employment with Wells Fargo in this capacity for any time you may have worked after August 20, 2008.

The class action lawsuit that we are pursuing is entitled Mists Herrick, et al. v. Wells Fargo Bank, N.A.
U.S. District Court, Central District of CA, Case No. CV11-1646 GAF (Ex).

You can help, so please contact us immediately either by phone at (888) 474-7242, email at info@uelglaw.com , or contact us through our website at www.collectmyovertime.com.

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United Employees Law Group through this blog, its website and direct discussions by phone, provides information on a multitude of employment issues to those seeking help with California Labor Law issues.

The laws and rules dealing with employment are extensive and complicated. Although there maybe "quick answers" those answers may only scratch the surface and may not provide adequate guidance without a more thorough review. In many instances there is substantial money at stake not to mention other important rights that should be protected.

When someone calls us looking for help, we understand that they are trying to navigate an unfamiliar area where the stakes are high.

This firm has prosecuted well over 1000 cases. Some of which include class action cases against some of the largest Fortune 500 companies. Each of these cases requires an investment of substantial economic resources. This requires that we selectively choose those cases we believe have the greatest chance of success.

To better understand the process the following is an overview of how we proceed when someone seeking help contacts us.

POTENTIAL CLIENTS ARE SCREENED

United Employees Law Group prescreens all clients before their case is accepted. Potential clients are taken through an in-depth analysis to determine the strength and value of their claim.

ANALYSIS OF PRELIMINARY DOCUMENTS

Potential clients are required to send in initial documents for preliminary review. Documents may include pay stubs, job descriptions, along with an employee handbook and evaluations.

FINAL REVIEW

All information provided by the potential client then goes through a final review to determine if the case can be accepted.

CLIENT FEE AGREEMENT

If the case is accepted, a fee agreement is sent to the client, this agreement sets out the scope of services, the clients’ responsibilities and the fees charged. All expenses are advanced by the law firm. No fee or costs advanced are collected, except out of monies recovered by the client. In other words, all work is done and expenses are incurred at the sole risk of the law firm.

INITIAL SCHEDULING OF ALL ACTIONS ON CASE

The first step is to record all information in a specialized computer program that coordinates calendared deadlines, phone calls, meetings and to do's. This information is continually being updated as the case progresses. This same program cross-references all documents and contact information of all parties. For example, the initial steps scheduled include the preparation of various letters along with the entry of a follow-up date.

INITIAL COMMUNICATIONS AND ANALYSIS

A notice is sent to the California Labor and Workforce Development Agency as well as a letter to the employer explaining the nature of the claim and an offer of early resolution.

An investigation of the employer is conducted and a detailed computation is made of unpaid wages, interest and penalties.

DISCUSSIONS WITH CLIENT

Numerous contacts and discussions are made with client in order to refine the information necessary to evaluate the value of the claim and to answer questions that the client may have and to discuss the client’s settlement objectives.

PREPARING FOR LITIGATION

An old and true military motto from Flavius Vegetius, Renatus circa 375 AD: says “If you want peace, prepare for war.” 

This is also good advice when it comes to fighting for the rights of our clients. It is for this reason that we prepare for the possibility that our resolve will be tested and we therefore work closely with our clients to gather facts, documents and witnesses. Although this requires work from both our client and our firm the results are well worth the effort.

SETTLEMENT OR TRIAL

Because this is an unfamiliar process most clients are naturally apprehensive about the prospect that this matter may go all the way to trial. Although a substantial amount of work is done in anticipation of a possible trial, it is much more likely that a settlement will be reached and a trial will not be required. As a matter of fact over 95% of all cases are successfully resolved by settlement between the parties.

INFORMATION IS POWER

Because California Labor Law is complex and could involve substantial sums of money it is important that you seek advice from a California Labor Law Attorney. In most instances this service is provided without charge so you have nothing to lose and everything to gain.

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