calwages.com

Archive for October, 2010|Monthly archive page

Northern District Denies Production of Names of Non Opt-In Members of FLSA Collective and Labor Code Class Action

In Class Actions, Class Discovery, Class Notice, Collective Action, Discovery, FLSA, Opt-in on October 28, 2010 at 9:37 am
Privacy caution
Image via Wikipedia

The United States District Court for the Northern District of California denied the production of names, addresses and telephone numbers of non-opt-in members of a FLSA collective and putative Labor Code class action.  Hill v. R+L Carriers Shared Services, LLC, No. C 09-1907 CW (MEJ), 2010 WL 4175958 (N.D. Cal. Oct. 20, 2010).  Plaintiff Glenn Hill is a former employee of Defendant R+L Carriers Shared Services, LLC, which provides administrative employees to transportation companies all across the United States.  Id. *1. Plaintiff worked as a “dispatcher” at Defendant’s San Lorenzo terminal in California, and brought a collective and class action pursuant to the Fair Labor Standards Act (“FLSA”), California’s wage-and-hour laws and California Business & Professions Code section 17200. Id.

Background

Plaintiff sought two sub-classes: those employees in California and those that he refers to as a Nationwide Collective.  Id. The California Class is defined as “all persons who worked for any period of time in California who were classified as Dispatchers (including “City Dispatchers” and any other position(s) who are either called, or work(ed) as, dispatchers) in the four years prior to the filing of this Complaint, up through the final disposition of this action.” Id. In Defendant contended that a collective action under the FLSA is improper because the job duties, work schedules, and salary of its employees varies across the United States, as well as in the State of California. Id. Read the rest of this entry »

Advertisements

DFEH Charge Does Not Toll Statute of Limitations Under the Labor Code

In Statutes of Limitation on October 19, 2010 at 12:30 pm
Caltrans Ama 3
Image by Omar Omar via Flickr

The Court of Appeal for the Second District held that a “DFEH complaint will [not] toll the statute on a claim for unpaid wages under the Labor Code.”  Parvizian v. California Department of Transportation, No. B215608, 2010 WL 4012070 (Cal. Ct. App. 2d Dist. Oct. 14, 2010).

Background

Plaintiff-appellant Syrus Parvizian brought a suit against his former employer, respondent State of California Department of Transportation (“DOT”).  Id. *1.  The operative first amended complaint brought six causes of action, titled Damages for Violation of Statutory Duty to Pay Wages and Compensation, Unpaid Wages, Accounting, Conversion, Money Had and Received, and Discrimination, Harassment and Retaliation in Violation of Government Code section 12940.  Id. DOT’s demurrer was sustained with leave to amend as to the causes of action for Damages of Violation of the Statutory Duty to Pay Wages and Compensation, Accounting, Conversion, and Money Had and Received.  Id. The court ruled that the claims were not properly pled, noting that “the state can only be sued if it authorizes a lawsuit, and you don’t plead the proper statutory authority to do so.”  Id. The court overruled the demurrer to the cause of action for unpaid wages, which was brought under Labor Code sections 201 and 202. Id. The court found that the cause of action for violation of Government Code section 12940 had been dismissed with prejudice in the earlier case, and sustained the demurrer as to that cause of action without leave to amend. Id. Plaintiff elected not to amend his complaint, and DOT filed a motion for judgment on the pleadings on the cause of action under the Labor Code, on the defense of statute of limitations.  Id. The court granted the motion and dismissed the complaint. Id.

Statute of Limitations Read the rest of this entry »

California Wage & Hour Law on Holiday This Week

In Blog Status on October 18, 2010 at 4:54 pm
The Amalfi Coast at Night
Image by Stuck in Customs via Flickr

I am traveling this week, so California Wage & Hour Law will be updated less frequently.  I’ll resume daily updates next week, October 26, 2010.

Cheers!

Charles Jung

Enhanced by Zemanta

Overtime Class Action Remanded to State Court for Failure to Meet CAFA Amount in Controversy

In CAFA Jurisdiction, Class Actions, Overtime on October 14, 2010 at 3:15 pm
Evaluating a casualty
Image by The U.S. Army via Flickr

The United States District Court for the Eastern District of California remanded a wage and hour class action case for failure to meet the $5,000,000 amount in controversy requirement under the Class Action Fairness Act (“CAFA”).  Rhoades v. Progressive Casualty Insurance Co., Inc., No. 2:10-cv-1788-GEB-KJM, 2010 WL 3958702 (E.D. Cal. Oct. 8, 2010).  Plaintiffs alleged that they and the members of the putative class were “employed in the State of California by the Defendant[ ] to adjust insurance claims and their positions were known as ‘Claims Adjuster,’ ‘Claims Generalist Associate,’ or similar titles” during the past four years. Id. Plaintiffs and members of the putative class were allegedly “not paid overtime wages for all hours worked” and were not “provided accurate itemized wage statements.” Id.

Apparently attempting to avoid federal court jurisdiction, Plaintiffs also alleged that “the individual members of the classes herein have sustained damages under the seventy-five thousand … jurisdictional threshold and that the aggregate claim is under the five million dollar … threshold, [and argue therefore] removal under the CAFA would be improper.” Id. Plaintiffs state in their prayer for relief: “Plaintiffs are informed and believe that the damages, back-wages, restitution, penalties, interest and attorneys’s [sic] fees do not exceed an aggregate of $4,999,999.99 and that Plaintiffs’ individual claims do not exceed $74,999.99.” Id. Read the rest of this entry »

Northern District Rejects Stay of Meal and Rest Break Action Pending California Supreme Court’s Decision in Brinker v. Superior Court

In Meal and Rest Breaks, Stay on October 11, 2010 at 6:56 am
A Toyota Hiace from the 1970s with 2-piece old...
Image via Wikipedia

The Northern District rejected defendant’s motion for stay of a meal and rest break action where the primary focus of complaint was unrelated to the break claims.  Murphy v. J.B. Hunt Transport Services, Inc., No. C 10-01568 WHA, 2010 WL 3911786 (N.D. Cal. Oct. 5, 2010) (slip op.).  Defendant J.B. Hunt Transport, Inc., moved to stay a case alleging three claims for discrimination and one claim for nonpayment of wages for regular meal-and-rest periods.  Id. *1.  Defendant’s stay motion sought a stay pending the resolution of a case pending before the California Supreme Court, Brinker Restaurant Corp. v. Superior Court, 196 P.3d 216 (Oct. 22, 2008), in which the court will decide whether the California Labor Code requires employers to affirmatively ensure that employees take rest and meal breaks. Id.

The court recited the standard for a stay of federal court proceedings as follows:

The proponent of a stay bears the burden of establishing its need. Clinton v. Jones, 520 U.S. 681, 708 (1997). Read the rest of this entry »

Northern District Finds Factual Determination of Outside Salesperson Exemption Unsuited for Class Treatment

In Certification, Class Notice, Collective Action, FLSA, Opt-in, Outside Salesperson, Overtime, Uncategorized on October 8, 2010 at 5:37 am
HSBC Bank in Armenia
Image via Wikipedia

The Northern District of California granted defendant’s motion to decertify a conditional FLSA class in Wong v. HSBC Mortgage Corporation (USA), No. C-07-2446 MMC, 2010 WL 3833952 (N.D. Cal. Sept. 29, 2010).  Plaintiff HSBC loan officers, allege that HSBC improperly classified them as exempt under the Federal Labor Standards Act (“FLSA”), and, consequently, violated the FLSA by failing to pay them overtime compensation. Id. *1. The Court granted plaintiffs’ motion for an order conditionally certifying, for purposes of the FLSA, a class of persons who, as of May 7, 2004, had been employed by HSBC as loan officers within the United States. Id. Notice of the action was sent to the class, and 120 class members filed consent forms, joining the action as plaintiffs.  Id.

Decertification Motion

HSBC argued that individualized factual determinations will be necessary regarding HSBC’s affirmative defense that plaintiffs are/were properly classified as “outside” salespersons and, consequently, are exempt under the FLSA. Id. *2 (citing 29 U.S.C. § 213(a)(1) (providing “maximum hour requirements” in FLSA do not apply to “any employee employed … in the capacity of outside salesman”)). Read the rest of this entry »

In a Wage & Hour Class Action and FLSA Collective Action, Northern District Invalidates Opt-Out Forms and Orders Defendants to Show Cause Why They Should Not Be Sanctioned Pursuant to Rule 11

In Class Actions, Class Notice, Collective Action, FLSA, Opt-in, Opt-out, Sanctions on October 7, 2010 at 7:21 am
Anonymity
Image via Wikipedia

Issuing a robust opinion in a putative wage and hour class and FLSA collective action, Judge Lucy H. Koh invalidated opt-out forms solicited by defendants, granted plaintiff’s request for a curative notice at defendants’ expense, and ordered defendants to show cause why they should not be sanctioned pursuant to Rule 11.  Li v. A Perfect Day Franchise, Inc., No. 10-CV-01189-LHK, 2010 WL 3835596 (N.D. Cal. Sept. 29, 2010).  The court concluded that based on the record, it appeared likely that “the opt-out forms submitted by Defendants on September 7, 2010 were fraudulently created after the September 2, 2010 hearing on the underlying motions.”  Id. *11.  The court admonished that “Defendants will not be permitted to defraud this Court by submitting false testimony.” Id. *12.

Background

Named plaintiffs are former workers for A Perfect Day Franchise, Inc., which owns and operates spas. Id. *1. Named plaintiffs describe themselves and the majority of the putative class as being native Chinese speakers, with limited English proficiency and little or no formal education. Id. Plaintiffs claim that they paid for a massage training course offered by an entity related to Perfect Day, the Minjian Hand Healing Institute.  Id. Plaintiffs allege they paid for the course based on promises, contained in advertisements for the training program, that they would be employed by Perfect Day and would earn a minimum income once it was completed, but that these promises were not honored by Perfect Day, and that Perfect Day has miscategorized them as independent contractors rather than employees. Id. Read the rest of this entry »

California Supreme Court Rejects Challenge to Governor’s Furlough Program

In Other Cases of Interest on October 6, 2010 at 10:15 pm
Arnold Schwarzenegger in July 2003
Image via Wikipedia

On Monday, the California Supreme Court held that the California “Legislature’s 2009 enactment of the revisions to the 2008 Budget Act operated to ratify the use of the two-day-a-month furlough program as a permissible means of achieving the reduction of state employee compensation mandated by the act.”  Professional Engineers in California Government v. Schwarzenegger, No. S183411, — Cal.Rptr.3d —-, 2010 WL 3835132, *2 (Cal. Oct. 4, 2010).  Accordingly, the Court concluded that the “2009 budget legislation validated the Governor’s furlough program here at issue, and rejected plaintiffs’ challenge to that program.  Id.

On December 1, 2008 Governor Arnold Schwarzenegger declared a fiscal emergency, called the Legislature into special session, and submitted to the Legislature a comprehensive plan to address the budget problem.  Id. *1.  The Governor’s budget plan included, among many other cost-saving features, two proposed statutory provisions that would impose a mandatory one-day-a-month unpaid furlough of most state employees employed by the executive branch.  Id. The Legislature later passed its own proposed comprehensive budget legislation, but the Legislature’s alternative plan did not include the Governor’s recommended furlough provision.  Id. Read the rest of this entry »

Judge Illston of Northern District Approves $3.5 Million Non-Reversionary Settlement of Meal and Rest Break Class Action, With Award of 25% of Fund in Attorneys Fees, and Incentive Award of $20,000 to Each Class Representative

In Attorney's Fees, Class Actions, Incentive Award, Meal and Rest Breaks, Settlement on October 6, 2010 at 9:25 am
Seal of the en:United States District Court fo...
Image via Wikipedia

The Northern District of California granted final approval of a settlement in a meal and rest break class action in Ross v. US Bank National Association, No. C 07-02951 SI, 2010 WL 3833922 (N.D. Cal. Sept. 29, 2010).  The complaint was filed on behalf of all hourly employees who worked at a California U.S. Bank in-store branch.  See Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement (“MPA”) at 1.  Plaintiffs alleged that they and other hourly paid employees have not been provided a legally compliant meal and rest period on Sundays and worked off the clock pre and post shift and during their meal breaks. Id. The parties settled the case, and the settlement agreement provides for the payment of compensation to each Participating Class Member based on his or her total workweeks in a Class position during a certain period.  Ross, 2010 WL 3833922, *1.   The court approved a non-reversionary settlement of $3,500,000 for approximately 3,300 settlement class members.  MPA at 2.

Attorneys’ Fees and Costs

Plaintiffs’ counsel sought an award of 30% of the settlement fund,  $1,050,000.00, as attorneys’ fees.  Ross, 2010 WL 3833922, *1.   Plaintiffs estimate that the total time spent litigating this case, including time overseeing claims administration, will be approximately 2647.7 hours.  Id. Plaintiffs’ counsel listed hourly rates ranging from $185 an hour to $650 an hour.  MPA at 14.  The court reduced the award to 25%: Read the rest of this entry »

Second District Affirms Denial of Class Certification in Meal and Rest Break Class Action, Holding That Employers Need Not Ensure Employees Take Breaks

In Certification, Class Actions, Meal and Rest Breaks on October 5, 2010 at 5:25 am
Chipotle Mexican Grill at 2608 Erwin Road next...
Image via Wikipedia

In a putative meal and rest break class action, the Second District denied class certification, holding that “employers must provide employees with breaks, but need not ensure employees take breaks.”  Hernandez v. Chipotle Mexican Grill, Inc., No. B216004, 2010 WL 3789012 (Cal. Ct. App. 2d Dist. Sept. 30, 2010).  Plaintiff and appellant Rogelio Hernandez (Hernandez) Hernandez filed a class action lawsuit against Chipotle Mexican Grill, Inc. (Chipotle) alleging that Chipotle violated labor laws by denying employees meal and rest breaks. Id. *1. The trial court denied class certification, and plaintiff appealed.  Id. The Court of Appeal affirmed, holding that it would not be “practical” to require “enforcement of meal breaks” since it “would place an undue burden on employers whose employees are numerous or who … do not appear to remain in contact with the employer during the day.”  Id. *7. “It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws.” Id.

Background

Chipotle is a fast food restaurant chain, and all employees are nonexempt, except for the salaried position of “restaurateur.” Id. *1. Chipotle’s written policies require managers to provide employees with meal and rest breaks, and employees are not permitted to self-initiate breaks and are prohibited from skipping breaks. Id. Chipotle directs employees to record their breaks. Read the rest of this entry »