Labor & Employment Law Blog

As we previously reported here, on April 26, 2010, in Dukes v. Wal-Mart Stores, Inc., a divided Ninth Circuit Court of Appeals decided 6-5 en banc to affirm the decision of the trial court to grant class certification in a discrimination lawsuit alleging Wal-Mart Stores discriminates against its women employees. The nationwide class is reputed by the Los Angeles Daily Journal to number upward of 1.6 million women employees, which would make the class the largest class in United States history.

On March 25, 2011 the National Labor Relations Board ruled in the New York New York ruling that off-duty employees of a restaurant, a contractor doing business on hotel property, can distribute flyers on hotel property regarding their union organizing campaign. The hotel sought to exclude the off-duty employees and their distribution of flyers from hotel premises.  

The five members of the NLRB, appointed by ...

On March 24, 2011, we conducted our 12th Annual Employment Law Conference at the Cerritos Center for Performing Arts and the Cerritos Sheraton.

In the case of Best Friends Animal Society v. Macerich Westside Pavilion Property, LLC decided March 2, 2011, the California Court of Appeal addressed the question of whether a privately owned shopping mall can enforce rules that give preferential treatment to persons engaged in labor speech on their premises. The court held that it could not, and that such rules violate the state Constitution by discriminating against other types of speech.

In Karena Wherry v. Award, Inc., Division Three of the Fourth Appellate District of the California Court of appeal held that the standards applicable to arbitration agreements between an employee and an employer apply also to arbitration agreements between an independent contractor and the contracting “employer.” 

Despite the Federal Arbitration Act and the California Arbitration Act, both of which provide essentially that arbitration agreements are valid and enforceable, it can scarcely be gainsaid that California courts will for the foreseeable future continue to closely scrutinize pre-dispute arbitration agreements between employers and employees. Such arbitration agreements have frequently been struck down as contrary to public policy, unconscionable substantively, and/or unconscionable procedurally on account of various features of such agreements.

Not every cloud has a silver lining, but some do, and the California Court of Appeal's decision today in Thomas McGann v. United Parcel Service, Inc., contains a terrific silver lining for employers. Thomas McGann was employed by United Parcel Service, Inc., ("UPS") for a number of years and worked as an On Road Supervisor. UPS classified Mr. McGann as an exempt employee and therefore did not pay Mr. McGann premium pay (i.e., overtime pay) for hours worked in excess of eight hours in a workday.

As we previously reported here and here, two recent decisions of the California Court of Appeal hold an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats. For example, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.

On February 17, 2011, the California Court of Appeal ordered published (and therefore citable) its previously unpublished (and therefore not citable) decision in Drake Price v. Starbucks Corporation, a decision that should prove helpful to employers defending against claims for allegedly non-compliant wage statements, which are nearly always included in wage and hour class action lawsuits.

Labor Code section 226.7 states that if an employer fails to "provide" an employee a meal period or a rest period in accordance with an applicable Industrial Welfare Commission wage order, "the employer shall pay the employee the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided."