Labor & Employment Law Blog

Issues of whether the President has validly appointed members of the National Labor Relations Board panel in Washington, DC continue to develop.  One recess appointment, Terrence Flynn, announced his resignation in late May, effective in July 2012.  Mr. Lenz was contacted by influential online legal publication www.law360.com for commentary identifying issues which have arisen with the composition of ...

As we previously reported here, a report issued by the Judicial Council of California, Administrative Office of the Courts, Office of Court Research, shows that employment cases were the most frequently filed class actions, representing 29.3% of the class actions filed, and that over half of the employment cases filed alleged violations of Labor Code provisions governing payment of wages, rest and meal periods, and related claims. This is consistent with our experience representing numerous employers against such class action lawsuits.

Many employers have attempted to require current and former employees to pursue claims individually and not by way of class action lawsuits by requiring employees to agree to arbitrate individually whatever claims they might have.

Today, in Kirby v. Immoos Fire Protection, Inc., the California Supreme Court put to rest the issue of whether either side--a plaintiff employee or a defendant employer--can be awarded attorney's fees under Labor Code sections 1194 or 218.5 when it prevails on a claim for alleged meal or rest period violation penalties under Labor Code section 226.7. The court held today that neither Labor Code section 1194 nor Labor Code section 218.5 apply to a claim for meal or rest period violation penalties under Labor Code section 226.7. For reasons we explain below, we think this common sense decision is a major victory for California employers, and we think this decision has the potential to dramatically alter the landscape of wage and hour class action litigation in California.

Yesterday, the California Court of Appeal, Second Appellate District, Division Three, issued its decision in Kinecta Alternative Financial Solutions, Inc. v. Malone, published in part and unpublished in part, in which the Court held employers cannot be compelled to arbitrate class action claims if the employment arbitration agreement between the employee and the employer expressly limits arbitration of disputes as to those between the individual employee and the employer.

On April 16, 2012, the Supreme Court of the United States conducted oral argument in Christoper v. Smithkline Beecham Corp., and will decide whether the federal Fair Labor Standards Act exemption for outside salespersons applies to pharmaceutical sales representatives ("PSRs") such that PSRs are not required to be paid in addition to their substantial salaries and incentive compensation based on sales productivity overtime pay for hours worked in excess of 40 hours in a workweek.

In Henry Lee Law Corp. v. Superior Court, the California Court of Appeal held that attorney's fee awards made in wage and hour cases under Labor Code section 1194(a) and 226(e), which provide for an award of attorney's fees to the prevailing employee belong to the employee's attorney and not to the employee even though both statutes expressly state it is the employee who is entitled to recover attorney's fees when an employer fails to pay minimum wages or overtime compensation or fails to provide to the employee a wage statement that complies with all of the requirements of Labor Code section 226(a).

The California Labor Code Private Attorneys General Act of 2004 ("PAGA") permits an "aggrieved" current or former employee to seek on behalf of all other "aggrieved" current and former employees very sizable penalties for violations of many provisions of the California Labor Code and for violations of Industrial Welfare Commission Wage Orders.  PAGA provides for penalties of $100 per employee per pay period for each initial violation and of $200 per employee per pay period for each subsequent violation. A successful PAGA plaintiff is entitled also to an award of his or her attorney's fees and costs, which can also be sizeable. 

As we previously reported here  and here, on November 7, 2011, Governor Jerry Brown signed into law effective January 1, 2012, Assembly Bill 469, sponsored by State Assembly Member Sandre R Swanson (Dem. Oakland), known as the "Wage Theft Prevention Act of 2011." Effective January 1, 2012, the Wage Theft Prevention Act of 2011 subjects California employers to new notice and record keeping requirements and to additional penalties for failing to comply with various provisions of the California Labor Code.  

As we previously reported here, the National Labor Relations Board (NLRB) made rules which required private sector employers across the country to post a Notice of Rights. This Notice provided a listing of employee rights under federal labor law including the right to form and join unions, to discuss and protest working conditions, and to refrain from such activity. Management groups sued the NLRB in an effort to block the rules and stop the mandatory Notice posting.