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Posts Tagged ‘Labor’

In an Involuntary Servitude Case, Northern District Dismisses FLSA and California Labor Code Claims

In Involuntary Servitude, Minimum Wage, Trafficking Victims Protection Reauthorization Act (TVPRA) on January 1, 2011 at 4:11 pm
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The Northern District dismissed plaintiffs’ FLSA and California Labor Code claims in an involuntary servitude case.  Shuvalova v. Cunningham, No. C 10-02159 RS, 2010 WL 5387770 (N.D. Cal. Dec. 22, 2010).  The case involved the “unusual scenario of one spouse bringing claims against the other for alleged violations of the Trafficking Victims Protection Reauthorization Act (TVPRA).” Id. *1.  Natalya Shuvalova and her daughter Elizabeth Shuvalova claimed that defendant and his adult son fraudulently lured them from Russia to the United States, induced Natalya to marry one defendant, and then forced plaintiffs into involuntary servitude at defendant’s rural property in Clearlake, California.  Id. Plaintiffs claimed that for seven months, they were forced by defendants’ alleged verbal and physical threats to perform heavy, outdoor labor on the property. Id. Plaintiffs raised eighteen claims for violations of the TVPRA, federal and state labor law, and state contract and tort law.  Id. Defendants moved to dismiss the entire complaint under Rule 12(b)(6).  Id.

Background

The court presented the allegations of the complaint as follows:

Natalya and Joe met through a computer dating service in October 2005. At the time, Natalya lived in Russia and Joe lived then and now in Clearlake, California. They began a two-year relationship involving frequent emails and phone calls, as well as two vacations together each lasting two weeks. In October 2005, [FN1] Joe proposed to Natalya and promised to provide a loving home to her and her daughter Liza. Natalya and Liza arrived in the United States in February 2008 and began living with Joe at the Clearlake property. Joe’s thirty-five-year-old son, Dan, also lived at the house on the weekends. Natalya and Joe married on May 3, 2008. . . . Read the rest of this entry »

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California Wage & Hour Law on Holiday This Week

In Blog Status on October 18, 2010 at 4:54 pm
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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

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Surprising Side Effect of the Minimum Wage: Finishing High School

In Minimum Wage, Wages on September 26, 2010 at 12:48 am
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The National Bureau of Economic Research report suggests a surprising effect of the minimum wage: finishing high school.  As reported by Kevin Lewis of the Boston Globe:

By curtailing low-wage/low-skill jobs, the minimum wage motivates young people to stay in school and become skilled. This effect then generates what the author calls an “educational cascade” by setting an example for the upcoming class of students. He estimates that the average male born in 1951 gained 0.2 years — and the average male born in 1986 gained 0.7 years — of high school due to the cumulative effect of the minimum wage.

Sutch, R., “The Unexpected Long-Run Impact of the Minimum Wage: An Educational Cascade,” National Bureau of Economic Research (September 2010).

By CHARLES JUNG

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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 »

Third District Holds that Employer May Recover Fees for Defense Against Allegation of Wrongly Denied Rest Periods

In Attorney's Fees on August 1, 2010 at 7:32 am
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In a case with serious implications for Plaintiff’s wage & hour attorneys, the Third District Court of Appeal held that an employer may recover its attorneys fees in a case alleging wrongful denial of rest breaks.  In Kirby v. Immoos Fire Protection, Inc., 2010 WL 2910075 (Cal. Ct. App. 3 Dist. July 27,2010) two former employees challenged an award of attorney’s fees to an employer who successfully defended against allegations of labor law violations. Plaintiff-Appellants Anthony Kirby and Rick Leech, Jr. sued Respondent-Defendant Immoos Fire Protection, Inc. as well as 750 Doe defendants for violating various labor laws as well as the unfair competition law (Bus. & Prof.Code, § 17200 et seq.). Plaintiff dismissed the case after the trial court denied class certification.

Judge Loren McMaster of the Sacramento Superior Court subsequently awarded $49,846.05 in attorney’s fees to Defendant for its defense of the first, sixth and seventh causes of action.  The first cause of action sought recover for violations of the UCL.  The third cause of action alleged that Immoos failed to pay overtime compensation, as required by sections 204.3, 510, and Industrial Wage Commission Order No. 16-2001 (Order No. 16-2001).  The sixth cause of action alleged that Immoos failed to provide Kirby with rest periods as required by Order No. 16-2001.  The Third District Court of Appeal reversed, allowing reasonable fees for the sixth cause of action only.

Defendant moved to recover attorney’s fees from Plaintiff pursuant to Labor Code section 218.5. Plaintiff opposed the motion arguing, in part, that the unilateral fee-shifting provision in favor of plaintiffs provided by Labor Code section 1194 barred an award of fees to Immoos.

Section 218.5 provides in pertinent part: “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action…. [¶] This section does not apply to any action for which attorney’s fees are recoverable under Section 1194.”

Section 1194 provides in relevant part: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

The trial court concluded that it is “apparent from the express language of … section 218.5, that only section 1194 can defeat a prevailing party employer’s entitlement to attorneys’ fees under that statute, under the rule of statutory construction, expressio unius est exclusio alterius-the expression of one thing is the exclusion of another.”  “As only [section] 1194 is named as an exception to 218.5, no other Labor Code sections may be implied to defeat a prevailing party employer’s entitlement to attorneys’ fees under that section.”

In addition to the fees allowed for defense against the complaint, the trial court awarded Immoos fees for bringing the motion for attorney’s fees.  Altogether, attorney’s fees were awarded to Immoos in the amount of $49,846.05.

The Court of Appeals concluded that the trial court did not err in awarding fees to Defendant for the sixth cause of action.  However, the court erred in awarding attorney’s fees for defense against claimed violations of section 2810 as set forth in the first and seventh causes of action.

Plaintiff argued that fees should not be awarded since section 218.5 includes an express exception to its bilateral fee-shifting provision, which states: “This section does not apply to any action for which attorney’s fees are recoverable under Section 1194.” Arguing that an “action” refers to an entire case, Kirby concluded that the inclusion of causes of action subject to section 1194 bars Immoos’s recovery of any attorney’s fees in this case.  The Court rejected the argument.

The Court construes the “section 1194 exception as applying only to causes of action for unpaid minimum and overtime wages.”  Id. at *6. “To adopt Kirby’s statutory construction would allow the exception of section 1194 ‘s unilateral fee shifting to eviscerate the rule of section 218.5.”  Id.

We harmonize sections 218.5 and 1194 by holding that section 218.5 applies to causes of action alleging nonpayment of wages, fringe benefits, or contributions to health, welfare and pension funds. If, in the same case, a plaintiff adds a cause of action for nonpayment of minimum wages or overtime, a defendant cannot recover attorney’s fees for work in defending against the minimum wage or overtime claims. Nonetheless, the addition of a claim for unpaid minimum wages or overtime does not preclude recovery by a prevailing defendant for a cause of action unrelated to the minimum wage or overtime claim so long as a statute or contract provides for fee shifting in favor of the defendant.

Id.

Since Plaintiff’s sixth cause of action alleged that Plaintiff was “owed an additional one hour of wages per day per missed rest period” the court concluded that it was a claim seeking additional wages.  Therefore section 218.5’s provision of attorney’s fees for “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions…” applied.  Id. **7-8.

It is now common practice to include a rest break claim in wage & hour complaints.  Plaintiffs attorneys will need to seriously reconsider whether they will continue this practice or risk bearing defendant’s fees in an unsuccessful claim.

By CHARLES H. JUNG

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