Labor & Employment Law Blog

Given the current state of the economy, many employers are considering reductions in work hours and potential layoffs.  As businesses consider taking action to save money and prevent potential closure, they must do so carefully in order to manage and reduce risk of future litigation related to its actions.  This blog discusses the appropriate steps that a business must take when conducting a reduction in force (“RIF”).

Recent mass layoffs by tech companies, such as Twitter and Meta, have made headlines.  The massive layoff by Twitter on November 4, 2022 has already resulted in a lawsuit filed by former Twitter employees for violations of the federal Worker Adjustment and Retraining Notification (“WARN”) Act.  The WARN Act requires certain employers to provide 60-day advance notice in cases of qualified plant closings and mass layoffs, allowing employees and their families with transition time to seek alternate employment or skills training.

Wage and hour claims asserted under the Private Attorneys General Act of 2004 (“PAGA”) are often compared to class actions, but without the same gatekeeping principles. Under PAGA, a single employee can potentially represent hundreds or thousands of other employees for a garden variety of wage and hour allegations, even if the representative did not experience the same violations—and even if the representative only ever experienced one violation. PAGA’s lack of standards, combined with the persnickety character of the Labor Code, are a recipe for “sue first, ask questions later” lawsuits and difficult decisions to fight or fold.

Due to a cost-of-living increase required by the State’s minimum wage law, effective January 1, 2023, California’s minimum wage will increase from $15.00 to $15.50 per hour for all employers, regardless of their number of employees.

On September 12, 2022, the California Court of Appeal, Second District, held that employees are entitled to recover attorney’s fees and costs stemming from a claim for failure to provide uninterrupted rest periods. Betancourt v. OS Restaurant Services, LLC, Case No. B293625 (Cal. Ct. App 2022). In her complaint, plaintiff Raquel Betancourt also alleged that she was retaliated against and wrongfully terminated for reporting these repeated rest break and food safety violations.

On September 2, 2022, the California Court of Appeal, Second District, delivered a rare victory for California construction employers in Jerome Oswald v. Murray Plumbing and Heating Corporation (2022) __ Cal.Rptr.3d __, Dkt. No. B312736.  At its core, this case shows how qualifying employers can—and should—take advantage of California’s construction industry exemption from the Private Attorneys General Act of 2004 (“PAGA”).

Often it is said that “the best result in mediation is the one that makes everyone equally unhappy.”  Even so, experience proves that the party who usually comes out best in mediation is the one who is most prepared.  This article provides some common sense, practical tips to help with that preparation.

Mediation has become an essential part of litigation because the risks of going to trial are so considerable.  A defendant that cannot resolve a case before trial runs the risk of a court or jury awarding substantial damages to the plaintiff.  If the plaintiff recovers anything at all, the defendant also may have to pay the plaintiff’s attorneys’ fees and costs.  Even when defendants win (and they do), the fees they pay to their own counsel to secure a defense win are substantial.  Plaintiffs also are at risk.  While many plaintiffs may have contingent fee arrangements with their own counsel, a losing plaintiff likely will be on the hook for significant hard costs incurred in litigation by their own counsel.  Even worse, they can be responsible for the defendant’s legal costs, and on rare occasions, attorneys’ fees.

In a recent article, the National Labor Relations Board (“NLRB”) reported that during the first six months of 2022, union representation petitions filed at the NLRB increased 58%—up to 1,892 from 1,197 during the first half of 2021.  (https://www.nlrb.gov/news-outreach/news-story/correction-first-three-quarters-union-election-petitions-up-58-exceeding).  The NLRB also reported that in 2021, 52% of petitions filed resulted in a victory for the union as compared to only 46% in 2020.  (https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/representation-petitions-rc).

On December 28, 2018, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a regulation under the Motor Carrier Safety Act of 1984 (49 U.S.C. § 31101, et seq.) that preempted California’s meal and rest break rules.  In doing so, the FMCSA decided that California may no longer enforce its meal and rest break laws with respect to drivers of property-carrying commercial motor vehicles.

On November 15, 2021, the West Hollywood city council enacted an ordinance that establishes a local minimum wage, and requires employers to provide paid and unpaid leave benefits. On May 16, 2022, the city council approved amendments to the ordinance and published Administrative Regulations (637879708613130000 (weho.org)) regarding the law, discussed below.

The ordinance’s minimum wage and leave benefits are restricted to only hourly, non-exempt, employees. There are also exceptions available for unionized employees subject to a collective bargaining agreement.