Litigating California Wage & Hour and Labor Code Class Actions

More documents

Recommendations

Info

worked,” which is language absent from the FLSA. 227 The Armenta court also noted that Labor Code Sections 221-223, which have no counterparts under the FLSA, make it illegal to secretly pay employees less than the amount designated by statute or contract. 228 The court failed to explain, however, why the violation of these particular Labor Code statutes signaled an intent to treat those violations as minimum wage violations. The Armenta decision affects California law in several ways. First, allowing a minimum wage claim whenever there are some uncompensated work hours will allow employees who could not state a claim for overtime an alternative basis to sue. For example, unionized employees whose overtime claims are preempted by Section 301 of the Labor Management Relations Act may still be able to sue under California law for unpaid minimum wages. Indeed, the plaintiffs in Armenta were members of a union who had pleaded claims for overtime, but later abandoned those claims because they recognized that those claims were preempted. 229 Minimum wage law claims, by contrast, are generally not preempted given that they can be resolved entirely independently of a collective bargaining agreement. 230 Second, employees who sue for minimum wage violations can recover liquidated damages under Labor Code Section 1194.1, which are not available for other sorts of wage violations. If liquidated damages are awarded, then employees will recover twice the minimum wage (which would currently amount to $16 per hour) for each hour they can show they worked but received no pay. Third, plaintiffs will be able to plead minimum wage claims in any case where they allege some work time was unpaid. For example, in meal period cases where the employer is alleged to have recorded meal periods automatically whether or not the employees actually took them, employees may argue that they worked through the meal period, but were not paid for that work time. Those facts might trigger minimum wage claims now. Similarly, a claim that an employee worked controlled standby time that the employer erroneously treated as unpaid will now trigger a minimum wage claim. A more recent case issued by the very same panel that decided Armenta suggests that Armenta may not apply in situations beyond its narrow facts. In Fitzgerald v. Skywest Airlines, Inc., 231 the plaintiff was a flight attendant. Her governing contract called for her to receive $1.60 an hour for “block time” while the aircraft is readied for flight, while passengers board and disembark, and for flight standbys. On the whole, however, only a fraction of her hours were block time, the remainder 227 228 229 230 231 Armenta, 135 Cal. App. 4th at 323-24. Id. Id. at 318. Unionized employees’ overtime claims often fail because those employees generally work under a collective bargaining agreement that provides premium pay for all hours worked, which then brings the employees within the Labor Code Section 514 “collective bargaining exemption.” Id. 155 Cal. App. 4th 411 (2007). Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 54
of her hours was paid at a rate of $20 to $30 per hour, and there was no evidence that wages paid to the employee averaged less than minimum wage for even one day. Nonetheless, the plaintiff argued, under Armenta, that paying only $1.60 for each hour of “block time” was a violation of the minimum wage law. The court affirmed summary judgment for the defendant based primarily on the doctrine of federal preemption under the Railway Labor Act. 232 In addition, however, the court suggested that Armenta might not apply where, as in Fitzgerald, the employment contract specifies that certain hours are to be paid at less than the minimum wage, but the employee always receives an average wage for hours worked each day above minimum wage: In Armenta, the employer violated its own CBA and written employment policies which required that employees be paid for time spent driving company vehicles to and from job sites. . . . Unlike Armenta, here there is no evidence that SkyWest pays [attendants] less than what was collectively bargained for. As discussed in Armenta, Labor Code “[s]ections 221, 222, and 223 articulate the principle that all hours must be paid at the statutory or agreed rate. . . .” Here the agreed rate is set forth in the SkyWest CBA which was voted on and approved by SkyWest [attendants]. 233 In sum, as a result of this language in Fitzgerald, employers should have a plausible argument that Armenta applies only where employees are forced to work hours without any pay. 234 XI. California Labor Code Private Attorneys General Act A. General Scope of the Law Effective January 1, 2004, California law greatly expanded the prospect of litigation under the Labor Code. Labor Code Section 2698, et seq., the Labor Code Private Attorneys General Act (“PAGA”), provides employees with added financial incentives to sue and creates new penalties for Labor Code violations. Previously, many of the Labor Code provisions carried no civil penalty at all, and others had a civil penalty but provided no 232 233 234 Fitzgerald, 155 Cal. App. 4th at 421-22. Fitzgerald, 155 Cal. App. 4th at 417. Employers may also face both contractual liability and Labor Code penalties for failing to pay workers in accordance with a city “living wage” ordinance that sets minimum pay above the statutory minimum wage rate. Amaral v. Cintas Corp., 163 Cal. App. 4th 1157 (2008) (employee class could bring claims to recover contract damages for unpaid wages, as well as Labor Code penalties for failure to pay wages and accrued vacation on termination, and for improper wage statements, pursuant to living wage clause in laundry services contract between the City of Hayward and Cintas); see also McKenzie v. Fed. Express Corp., 2011 U.S. Dist. LEXIS 48707 (C.D. Cal. Apr. 14, 2011) (judgment entered against defendant for PAGA penalties where violation under Sectiion 226 is established; injury need not be shown). Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 55
Page 1 and 2:
Litigating California Wage & Hour a
Page 3 and 4:
Table of Contents I. Introduction a
Page 5 and 6: A. Disclosure of Class Member Names
Page 7 and 8: associated statutory penalties. 1 T
Page 9 and 10: who does not meet the threshold com
Page 11 and 12: exempt work is of a kind which in e
Page 13 and 14: 3) The employee performs his or her
Page 15 and 16: decisions have concluded that under
Page 17 and 18: Bell court to look beyond the Wage
Page 19 and 20: place of business, would that quali
Page 21 and 22: IWC had the authority to promulgate
Page 23 and 24: stores” by providing them a porti
Page 25 and 26: declare such a system illegal witho
Page 27 and 28: employers should be able to defend
Page 29 and 30: waive the right to reimbursement, s
Page 31 and 32: Due to the ambiguity in the meaning
Page 33 and 34: For each workday the employer fails
Page 35 and 36: Arguably, no additional $100-per-pa
Page 37 and 38: permitted” the employee to work t
Page 39 and 40: federal decisions also held that an
Page 41 and 42: for all overtime hours worked. The
Page 43 and 44: much broader, such as the court’s
Page 45 and 46: In the appeal of Chau, the appellat
Page 47 and 48: years before the lawsuit, or for an
Page 49 and 50: imposition of penalties, 194 routin
Page 51 and 52: In one such class action, Elliot v.
Page 53 and 54: First, there has been a substantial
Page 55: Recent court decisions have begun t
Page 59 and 60: the limitations period for a penalt
Page 61 and 62: passage, then the employee could st
Page 63 and 64: all, but rather simply to proceed w
Page 65 and 66: Shortly thereafter, another Divisio
Page 67 and 68: and the ability to bring a collecti
Page 69 and 70: XIII. Class Action Fairness Act of
Page 71 and 72: the plaintiff is “master of her c
Page 73 and 74: alleged conduct or any related cond
Page 75 and 76: Initially, the decisions were split
Page 77 and 78: XIV. Class Certification A. General
Page 79 and 80: expectations and the realistic requ
Page 81 and 82: In the immediate wake of Sav-On, th
Page 83 and 84: Similarly, employers may argue that
Page 85 and 86: A 5 to 4 ruling reversed the Ninth
Page 87 and 88: facility to the next, or variations
Page 89 and 90: employer’s defense arsenal, and t
Page 91 and 92: In reaching this conclusion, the Co
Page 93 and 94: party who seeks the same relief, pr
Page 95 and 96: is to be so maintained.” This det
Page 97 and 98: speech. 429 Therefore, the court he
Page 99 and 100: Puerto, or Crab Addison cases would
Page 101 and 102: epresentative. That question was an
Page 103 and 104: CashCall to disclose the identities
Page 105 and 106: nothing but still are bound by the
Page 107 and 108:
Initially, there appeared to be a v
Page 109 and 110:
the case. As any one of these class
Page 111 and 112:
have any great impact on class sett
Page 113 and 114:
plaintiff’s attorney and putative
Page 115 and 116:
the California Supreme Court issued
Page 117 and 118:
While California courts have essent
Page 119 and 120:
The plaintiffs attempted to justify
Page 121:
Breadth. Depth. Results. www.seyfar
show all

Litigating California Wage & Hour and Labor Code Class Actions

Create successful ePaper yourself

Delete template?

Save as template?