Employment Law Blog

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Civil Actions Under the Private Attorneys General Act

Under the Private Attorneys General Act (“PAGA”), an aggrieved employee may bring a civil action personally and on behalf of other current or former employees and the State of California to recover civil penalties for Labor Code violations. Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380. Seventy-five percent of any PAGA penalties go to the Labor & Workforce Development Agency (“LWDA”), leaving the remaining 25 percent for the employees. Id.; see also ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 275. PAGA is intended to augment the limited enforcement capability of LWDA by empowering employees to enforce the Labor Code as representatives of the Agency. Id. at p. 383. A judgment in a PAGA action binds all those who would be bound by a judgment in an action brought by the government. Id. at 381.

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Awarding Attorneys Fees in PAGA Actions

Under PAGA, an aggrieved employee may bring a civil action personally and on behalf of other current or former employees and the state of California to recover civil penalties for Labor Code violations. Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380. Seventy-five percent of any PAGA penalties go to the LWDA, leaving the remaining 25 percent for the employees. Id. PAGA is intended to augment the limited enforcement capability of by empowering employees to enforce the Labor Code as representatives of the Agency. Id. at p. 383. A judgment in a PAGA action binds all those who would be bound by a judgment in an action brought by the government. Id. at 381.

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Non-Compliance in the Discovery Process

Once a party has been ordered to answer discovery or to produce documents more severe sanctions are available for continued refusal. (C.C.P. §§ 2030.290(c), 2030.300(e).) The court may order that designated facts “shall be taken as established” by the party adversely affected by the discovery misuse; or it may prohibit the party who committed such misuse from supporting or opposing designated claims or defenses. (C.C.P. § 2023.030(b).) The court may also prohibit the party (or party-affiliated witness) who disobeyed the court order from introducing designated matters in evidence. (C.C.P § 2023.030(c); Deeter v. Angus (1986) 179 Cal.App.3d 241, 255; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1547-1548.) In addition to any other sanction, the court may order the disobedient party or counsel responsible or both to pay the reasonable expenses, including attorney fees, incurred as a result of the failure to obey (including fees on the sanctions motion). (C.C.P. § 2023.030(a).)

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Safety for Employees in the Workplace

An employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not an actual law was being violated. Labor Code § 6310; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300; Green v. Ralee Eng’g Co. (1998) 19 Cal.4th 66, 87; Freund v. Nycomed Amersham (9th Cir. 2003) 347 F.3d 752, 759; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Thus, it is immaterial if the practice was actually unsafe or whether there was an OSHA standard that was actually being violated. The employee need only have complained in good faith about the working conditions or practices.

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Overtime, Wage Violations, and Employer Obligations Regarding Disabilities

California Labor Code section 510 requires employers to pay overtime compensation for hours worked over 8 per day and 40 per week. An employer may avoid paying overtime for hours worked over 8 per day by adopting a valid Alternative Workweek Schedule. The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 4 at California Code of Regulations, title 8, § 11040, subd. 3(B). Among other things, the law requires an employer to hold a secret ballot election regarding the AWS amongst its employees and to file the results of the election with the State.

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Discovery and Physician/Patient Confidentiality

The California Constitution and the California Evidence Code establish a right of privacy which protects communications between a physician and patient.  Roe v. Sup. Ct. (1991) 229 Cal.App.3d 832, 837 (physician-patient privilege broadly construed in favor of the patient for public policy reasons).  Jones v. Sup. Ct. (1981) 119 Cal.App.3d 534, 549–550, citing Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678–679:

“A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected . . . . [¶] The individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones. The state of a person’s gastro-intestinal tract is as much entitled to privacy from unauthorized public or bureaucratic snooping as is that person’s bank account, the contents of his library or his membership in the NAACP. We conclude the specie of privacy here sought to be invaded falls squarely within the protected ambit, the expressed objectives of article I, section 1 [of the California Constitution].”

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