Employment Law
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Privacy Privilege in Discovery
Article I, section 1 of the California Constitution “creates a zone of privacy which protects against unwarranted compelled disclosure of certain private information.” Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 357. Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370–371. In determining whether information falls within the zone of privacy, the party claiming the privacy privilege must have a reasonable expectation of privacy under the circumstances, including the customs, practices, and physical settings surrounding the circumstances. Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35–37.
California Wage and Hour Laws for Large Corporations
“Meal and rest periods have long been viewed as part of the remedial worker protection framework.” Murphy, infra. California law requires employers to authorize and permit rest breaks for every four hours of work or major fraction thereof. The California Supreme Court in Brinker, infra, explained that the “major fraction thereof” requirement means one break for a shift greater than 3.5 but less than 6 (“3.5>6”) hours long, two breaks for a shift greater than 6 but less than 8 (“6>8”) hours long, and three breaks for a shift greater than 10 but less than 12 (“10>12”) hours long.California Labor Code section 226.7 prohibits employers from requiring its employees to work during any rest period mandated by the Industrial Welfare Commission (“IWC”) Wage Orders. “[I]n light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed with an eye to promoting such protection.” Industrial Welfare Com. v. Superior Court, 27 Cal.3d 690, 702 (1980). “[T]he IWC’s wage orders are entitled to ‘extraordinary deference, both in upholding their validity and in enforcing their specific terms.’” Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1027 (2012) (quoting Martinez v. Combs, 49 Cal.4th 35, 61 (2010)). Rest break requirements “have long been viewed as part of the remedial worker protection framework.” Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1105 (2007).
The Class Certification Process
Under the Fair Labor Standards Act ("FLSA"), individuals may bring suit “on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. §216(b). Neither the statute itself nor the Ninth Circuit have defined the term “similarly situated,” Luque v. AT&T Corp., 2010 WL 4807088 (N.D.Cal. Nov. 19, 2010) at *3, citing Lewis v. Wells Fargo & Co., 669 F.Supp.2d 1124, 1127 (N.D.Cal. 2009). Courts in the Ninth Circuit take a two-step approach to determine whether plaintiffs are “similarly situated.” Id.The Court’s first step is to make an initial, conditional determination of whether the plaintiffs are similarly situated, “deciding whether a collective action should be certified for the purpose of sending notice to potential class members.” Luque, supra, at *3, quoting Lewis, supra, at 1127. The initial notice stage determination utilizes a lenient standard that typically results in certification. Wynn v. National Broad Co., Inc., 234 F.Supp.2d 1067, 1082 (C.D.Cal. 2002). While the initial inquiry is not a mere formality, plaintiffs seeking conditional certification need only provide “substantial allegations, supported by declarations or discovery.” Luque, supra, at *3, citing Kress v. PriceWaterhouseCoopers, LLP, 263 F.R.D. 623, 627 (E.D.Cal. 2009). Indeed, “Courts need not even consider evidence provided by defendants at this stage.” Luque, supra, at *3 (emphasis in original), quoting Kress, supra, at 628.
Class Rights of Taxi Drivers in Oakland, California
Oakland City Ordinance 5.64.040(d)(1)) unequivocally states that: “Fleet managers shall provide to drivers receipts for all fees collected from said drivers.”Oakland Municipal Code 5.64.040(C) states:Fleet management permittees are required to maintain for a period of not less than one year all records pertaining to the fleet manager's operation and management, including but not limited to all waybills completed by drivers, all dispatch logs, all vehicle inspection records, driver training records, passenger complaints, citation records, leasing records, and insurance records. Fleet managers shall make available for inspection, Monday through Friday from 9:00 a.m. to 5:00 p.m., all such records. Fleet managers shall take reasonable efforts to ensure the completeness and accuracy of all records. Any records which are determined to be inadequate, inaccurate, or any request which is not complied with may result in the suspension or revocation of the fleet management permit pursuant to Section 5.64.080.
Determining Employment Status in California
“The California Supreme Court has developed a multi-factor test for determining employment status.” Ruiz v. Affinity Logistics Corp. (9th Cir. 2011) 667 F.3d 1318, 1324, quoting S.G. Borello & Sons, Inc. v. Dept. of Indust. Rel. (1989) 48 Cal.3d 341 (“Borello”). “[U]nder California law, once a plaintiff comes forward with evidence that he provided services for an employer, the employee has established a prima facie case that the relationship was one of employer/employee.” Narayan v. EGL, Inc. (9th Cir. 2010) 616 F.3d 895, 900, citing Robinson v. George, (1940) 16 Cal.2d 238, 243-244. “Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor.” Id. (citation omitted).Under California law, primary test of an employment relationship is whether “the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….” Borello, supra, at 350. While the right to control work details is the most important factor, there are also “’secondary’ indicia of the nature of a service arrangement.” Id. These secondary factors, principally derived from the Rest.2d Agency, include
Motion to Compel Arbitration
The FAA provides, that a "written provision in any...contract evidencing a transaction involving commerce to settle by arbitration a controversy...shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of the contract." 9 U.S.C. § 2. In order to opt out of the FAA, a controlling state arbitration law must be specified in the agreement. See, e.g. Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir. 1998) ("In other words, parties are free to contract around the FAA by incorporating state arbitration rules into their agreements.").
The Importance of Independent Testimony
California Code of Civil Procedure section 2025.420 subdivision (b) provides that, "the court, for good cause shown, may make any order that justice requires to protect any party... from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Code Civ. Proc. § 2025.420 (b)(12) expressly authorizes the court to exclude from a deposition "designated persons, other than the parties to the action and their officers and counsel."
Some Notes on Awarding Attorney Fees in California
California Code of Civil Procedure section 1038 allows a public entity defendant to recover defense costs upon prevailing against a legal action, but only where the plaintiff brought or maintained he action in bad faith or without reasonable cause. A determination of good faith involves a factual inquiry into the plaintiff’s state of mind. Bosetti v. U.S. Life Ins. Co. in City of New York (App. 2 Dist. 2009) 175 Cal.App.4th 1208. Reasonable cause is determined by (1) analyzing the facts known to the plaintiff when he or she filed or maintained the action and (2) determining whether any reasonable attorney would have thought the claim tenable. Smith v. Selma Community Hosp. (App. 5 Dist. 2010) 188 Cal.App.4th 1, review denied. A defendant may not recover costs simply because it won a summary judgement or other dispositive motion; victory does not per se indicate lack of reasonable cause. Laabs v. City of Victorville (App. 4 Dist. 2008) 163 Cal.App.4th 1242.