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Archive for August, 2010|Monthly archive page

New York Enacts Overtime Law for Domestic Workers

In Other Cases of Interest, Overtime on August 31, 2010 at 12:30 pm
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The Washington Post reports today that New York Governor David Paterson has signed into law the nation’s first expansive domestic workers’ rights measure.  The law provides for overtime pay for domestic workers in addition to time off and protections against sexual harassment.

By CHARLES H. JUNG

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SFPD Overtime Draws Scrutiny

In Other Cases of Interest, Overtime on August 31, 2010 at 11:22 am
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Shoshana Walter of The Bay Citizen reports that a recent audit says that the San Francisco Police Department has failed to properly monitor and control millions of dollars in overtime and premium pay.

The audit found many problems. One was that the department was not enforcing overtime limits and failed to properly document earnings and payments during a period of two years that ended right before Police Chief George Gascon took office in August 2009. Read the rest of this entry »

Northern District Strikes Jury Demand in Wage & Hour Class Action for Failure to Timely Plead

In Jury on August 30, 2010 at 11:23 am
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The Northern District struck a jury trial demand in a putative wage and hour class action.  Rodriguez v. Sears Holding Corporation, No. 10-1268 SC, 2010 WL 3341656 (N.D. Cal. Aug. 24, 2010).  Plaintiff originally filed his complaint in Alameda Superior Court.  Id. *1.  Plaintiff was an employee of Defendants, and brought a putative class action on behalf of himself and others similarly situated for violations of various provisions of California’s Labor Code and Business and Professions Code, including failure to pay overtime wages, failure to allow and pay for meal and rest periods, failure to pay compensation upon discharge, and failure to provide proper wage statements. Id. Read the rest of this entry »

Collective Bargaining Agreement That Mentions “Breaks” Does Not Clearly and Unmistakably Waive Right to Sue

In Collective Bargaining Agreements, Waiver on August 30, 2010 at 8:58 am
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In Martinez v. J. Fletcher Creamer & Son, Inc., 2010 WL 3359372 (C.D. Cal. Aug. 13, 2010), the court held that a collective bargaining agreement that mentions “breaks” did not clearly and unmistakably waive plaintiff’s right to sue.

Plaintiff Antonio Martinez  (“Plaintiff”) worked for Defendant J. Fletcher Creamer & Son, Inc. (“Defendant”) as a construction worker. Id. *1. Plaintiff’s terms of employment were governed by a CBA, which provides for a grievance procedure for “enforcing all the terms and provisions contained in this Agreement .” Id. If an employee has “a grievance or dispute,” he must first raise the issue with Defendant. The CBA outlined the terms of employment relating to holidays, payment of wages, meal periods, and breaks, and in a section entitled “Breaks,” the CBA stated: Read the rest of this entry »

Southern District Rejects Argument That Wage Order 7-2001 Invalid

In IWC Orders on August 27, 2010 at 10:59 am
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In Kilby v. CVS Pharmacy, Inc., Civil No. 09cv2051-L(CAB), 2010 WL 3339464 (S.D. Cal. Aug. 23, 2010) (slip op.) Defendant argued that provisions of Wage Order 7-2001 were invalid because the IWC, before adopting any new rules, regulations or policies, was required by Labor Code section 1173 to consult with the California Occupational Safety and Health Standards Board to determine areas of potential overlap, which it is alleged to have failed to do because it delegated too much to the staff. Id. *2.  The court rejected this argument, agreeing with the California Court of Appeal in California Manufacturers Association v. Industrial Welfare Commission, 109 Cal. App. 3d 95, 122-23 (1980).

Defendant also argued that the action should be dismissed because the pertinent provision of Wage Order 7-2001 is not incorporated into Labor Code Section 1198. Section 1198 provides: Read the rest of this entry »

Second District Holds That, Pending Brinker, Employer Has a Duty to Provide Meal Breaks “as a Practical Matter”

In Meal and Rest Breaks on August 26, 2010 at 8:41 pm
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While the California Supreme Court will resolve this issue shortly, in Brookler v. Radioshack Corp., B212893, 2010 WL 3341816 (Cal. Ct. App. 2d Dist. Aug. 26, 2010), an unpublished opinion issued today, the Second District Court of Appeal held that “Unless and until our Supreme Court holds otherwise, we agree with the analysis in Cicairos which held an employer’s obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory; it must also provide them as a practical matter.”

Morry Brookler filed a class action complaint against Radioshack for its alleged failure to provide employees with a meal period of not less than 30 minutes during a work period of more than five hours.  Id. *1.  The trial court certified the class. Radioshack filed a second motion for decertification after issuance of the opinion in Brinker, 165 Cal. App. 4th 25 which the trial court granted. The California Supreme Court granted review in Brinker and the matter is currently pending. Read the rest of this entry »

Northern District of California Holds That Allegation of Denial of Overtime Based on Race or Sex States Discrimination Claim Under Title VII

In Demurrer, Overtime, Title VII on August 26, 2010 at 7:45 am
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The Northern District of California considered whether an allegation of failure to allow overtime because of a plaintiff’s race or sex states a claim for discrimination under Title VII.  The court held that it did.

In Moore v. Contra Costa College District, No. C 09-4781 MEJ, 2010 WL 3324895 (N.D. Cal. Aug. 23, 2010) (slip op.), Plaintiff filed an employment discrimination complaint as a pro se litigant, bringing suit under Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. § 2000e-5. Read the rest of this entry »

Expedited Jury Trial Bill Passes

In Breaking News on August 25, 2010 at 4:19 pm
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In a positive development for both plaintiffs and defendants, a bill establishing an expedited jury trial procedure has sailed through the California Legislature.  The Wall Street Journal Law Blog and The Recorder reported today that Assembly Bill No. 2284 was approved by the legislature on a unanimous vote.  The bill, entitled the Expedited Jury Trials Act, was introduced by Assembly Member Noreen Evans (D-Santa Rosa).  It calls for the establishment of strealined jury trials in civil cases, where the parties stipulate to them.  Some of the highlights:

  • Waiver of all rights to appeal, motions for directed verdict, and post-trial motions;
  • Only 3 hours per side to present its case;
  • Jury sizes of 8 or fewer, with no alternates, and only 3 peremptory challenges;
  • Provision for high/low agreements: (i.e., a voluntarily agreement specifying a minimum and maximum amount of damages, regardless of the ultimate verdict issued returned by the jury).

By CHARLES H. JUNG

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In a Split Opinion, Ninth Circuit Affirms Christian Humanitarian Organization’s Exemption From Title VII’s Prohibition Against Religious Discrimination

In Other Cases of Interest on August 24, 2010 at 2:42 pm
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In Spencer v. World Vision, Inc., No. 08-35532, — F.3d —-, 2010 WL 3293706 (9th Cir. Aug. 23, 2010), the Ninth Circuit Court of Appeals considered whether a faith-based humanitarian organization is exempt from Title VII’s prohibition against religious discrimination.  Defendant World Vision describes itself as “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” Id. *1.   Read the rest of this entry »

Labor Code Section 512 Does Not Apply to Public Employees

In Meal and Rest Breaks on August 23, 2010 at 6:29 am
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The First District Court of Appeal held that Labor Code section 512 and IWC Wage Order No. 17 do not apply to public employees.  California Correctional Peace Officer’s Association, et al. v. State of California, No. A125679, 2010 WL 3248794 (Cal. Ct. App. 1st Dist. Aug. 18, 2010).  The California Correctional Peace Officers’ Association (CCPOA) filed a class action, contending that the State of California violated various Labor Code provisions, as well as wage orders promulgated by the Industrial Welfare Commission (IWC), by failing to provide correctional officers with meal periods and by failing to pay for the missed wage periods. CCPOA argued that the Legislature intended that the State provide its correctional officers with meal periods as required by Labor Code section 512 and IWC Wage Order No. 17, and that the State must pay for missed meal periods as required by Labor Code section 226.7.  The court rejected this argument, holding that “the subject wage and hour statutes do not apply to public employees.”  Id. *1. Read the rest of this entry »