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Archive for the ‘Overtime’ Category

Northern District Denies Certification of Joe’s Crab Shack Meal and Rest Break Class Action

In 23(b)(2) Class, Certification, Class Actions, Meal and Rest Breaks, Overtime, Uniform on January 1, 2011 at 3:21 pm
Joe's Crab Shack
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The Northern District of California denied class certification of a meal and rest break class action in Washington v. Joe’s Crab Shack, No. C 08-5551 PJH, 2010 WL 5396041 (N.D. Cal Dec. 23, 2010.) (slip op.).  Plaintiff Drew Garrett Washington asserted that defendant Crab Addison, Inc. (“Crab Addison”), a company that operates a number of Joe’s Crab Shack restaurants, failed to provide employees with meal and rest breaks, allowed its restaurant managers to manipulate employee time records to deprive employees of pay for all hours worked (including overtime and missed meal break pay), required employees to perform work “off the clock”; and required employees to pay for their own employer-mandated uniforms.  Id. *1.

Class Definition

Plaintiff moved pursuant to Federal Rule of Civil Procedure 23, to certify a plaintiff class consisting of “all non-exempt restaurant employees employed by Crab Addison at Joe’s Crab Shack restaurants in California from January 1, 2007, through the present.”

Discussion

The court denied the certification motion.  Id. *11.  “Plaintiff’s position is that common questions predominate because the main issue is whether—notwithstanding Crab Addison’s written policies—Joe’s Crab Shack restaurants in California followed a common unwritten policy of denying meal and rest breaks, failing to pay employees who did not take breaks, failing to pay for overtime, requiring employees to purchase their own uniforms, and so forth.” Id. Plaintiff contended that the existence of a policy or practice that in effect contradicts Crab Addison’s written policies can be ascertained by an analysis of the data in Crab Addison’s computer systems.  Id. “But since plaintiff has failed to adequately explain how that analysis works and exactly what the data shows, he has failed to adequately establish the existence of such a policy or practice.” Id. Read the rest of this entry »

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
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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 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
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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 »

Ninth Circuit Holds That Newspaper Reporters Not Exempt

In 23(b)(2) Class, Class Actions, Class Notice, Collective Action, Exemptions, FLSA, Jury, Meal and Rest Breaks, Opt-in, Opt-out, Overtime, Preemption, Professional, Trial, Unfair Competition Law on September 30, 2010 at 12:14 am
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On Monday, the U.S. Court of Appeals for the Ninth Circuit affirmed in “all respects” the trial court’s grant of partial summary judgment to plaintiffs, a judgment after jury and bench trials, and an award of attorney’s fees to plaintiffs.  Wang v. Chinese Daily News, Inc., Nos. 08-55483, 08-56740, — F.3d —-, 2010 WL 3733568 (9th Cir. Sept. 27, 2010).  Among other things, the Ninth Circuit held that plaintiff newspaper reporters were non-exempt.  (Thank you to Randy Renick for bringing this case to my attention.)

Background

Employees of Chinese Daily News, Inc. (“CDN”), a Chinese-language newspaper, filed suit against CDN on behalf of current, former, and future CDN employees based in CDN’s San Francisco and Monterey Park (Los Angeles), California locations.  Id. *1.  Plaintiffs claimed violations of the FLSA, California’s Labor Code, and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, alleging that employees were made to work in excess of eight hours per day and forty hours per week. Id. Read the rest of this entry »

Second District Reverses Summary Judgment on All Wage and Hour Claims

In Meal and Rest Breaks, Overtime, Summary Judgment on September 28, 2010 at 5:54 am
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The Court of Appeal for the Second District reversed summary judgment on wage and hour claims in Porter v. Ralphs Grocery Company, No. B218220, 2010 WL 3704055 (Cal. Ct. App. 2d Dist. Sept. 23, 2010).  Plaintiff alleged that defendant required him to work overtime off the clock, and by doing this defendant both denied plaintiff proper wages and made it difficult for plaintiff to calculate the overtime pay due him.  Id. *8.  Plaintiff also alleged that defendant failed to afford meal periods of at least one-half hour in which he was relieved of all duties, and that he regularly worked without taking the 10 minute rest breaks due him.  Id. Plaintiff alleged violation of Labor Code sections 1174, 226.7, and 512. Id. He also alleged violation of Labor Code sections 201 and 203 for failure to pay all sums due plaintiff immediately upon termination of his employment.  Id. Additionally, he alleged defendant retaliated against him for his having requested that he not have to work off the books. Id.

The Court of Appeal held that “when an employee continues to work at the end of his shift even when not requested or required to do so, and the employer knows or has reason to know about such continuing work, then the time is considered working time and it is the duty of management to see that the post-shift work is not performed if it does not want the employee to work past his shift.” Id. *9 (citing Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)). Read the rest of this entry »

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

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 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 »