Employment Law
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Intervention and Substantially Similar Actions
An applicant may intervene as of right pursuant to FRCP 24(a) if the following elements are satisfied: (1) the motion must be timely; (2) the applicant must have a “significant protectable interest” relating to the property or transaction which is the subject of the action; (3) the applicant must be situated such that disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. Smith v. Marsh, 194 F.3d 1045, 1049 (9th Cir.1999). The Court must interpret the rule broadly in favor of intervention. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995); see also Widjaja v. YUM! Brands, Inc., Case No CV-F-09-1074 OWW-DLB, 2009 WL 3462040 (E.D.Cal. Oct. 22, 2009).
Disability Accommodations in California
The California Fair Employment and Housing Act (“FEHA”) requires employers to reasonably accommodate their employees’ known disabilities and to engage in a “timely, good faith, interactive process” in order to determine effective reasonable accommodations. Government Code section 12940, subd. (m), (n).
Ex Parte Application for Temporary Restraining Order Regarding Communications with Class Members
“In the context of a class action, it is the court's authority and duty to exercise control over the class action to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice.” Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581 (citing Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 100–103).
Collective Action Under the Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) is a remedial statute that protects the rights of workers and should not be applied narrowly. Tennessee Coal Iron & R. Co., v. Muscoda Local No. 123, 321 U.S. 590, 597-98 (1944). The FLSA’s purpose is to “eliminate” unfair labor practices because their existence “burdens commerce,” “constitutes an unfair method of competition,” and “leads to labor disputes.” 29 U.S.C. § 202(a)(b). It prohibits “customs and contracts which allow an employer to claim all of an employee’s time while compensating him for only a part of it” and provides employees a private right of action to recover their unpaid wages. Tennessee Coal Iron & R. Co.,321 U.S. at 602.
Exempt v. Non-Exempt Workers, and Workplace Discrimination in California
California state laws require that all non-exempt employees be compensated at time-and-a-half for all hours worked over 8 hours per day and 40 hours in a week. See California Labor Code section 510(a) and Industrial Welfare Commission (“IWC”) Wage Order, Order No. 7-2001 section 3(A). The law further requires employers to maintain accurate time records for all of the hours worked by its employees, provide accurate itemized wage statements, authorize, permit and provide meal and rest periods, and pay all wages earned to an employee immediately upon their termination.
Preemptions: State vs. Federal Labor Law
Pursuant to the Supremacy Clause of the Constitution, the laws of the United States “shall be the supreme Law of the Land.” (U.S. Const., Art. VI.) Thus, state law that conflicts with federal law is “without effect” and preempted. Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516. Federal law can preempt state law either by express provision, by implication, or by a conflict between federal and state law. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Company (1995) 514 U.S. 645, 654 (“Travelers”). However, where the possibility of preemption arises from an express statutory provision, there is no need to consider any possible implied preemptive effect, since, “Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.” Cipollone, supra, 505 U.S. at 517.
Rest Breaks and the Duty of the Court to Protect Class Members
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 (1980) 27 Cal.3d 690, 702. “[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 (2012) 53 Cal.4th 1004, 1027 (quoting Martinez v. Combs (2010) 49 Cal.4th 35, 61). Rest break requirements “have long been viewed as part of the remedial worker protection framework.” Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105.
The Definition of "On-Duty" and "Off-Duty" Periods
Employees must be relieved of all duty during their meal and rest breaks. Brinker, 53 Cal.4th at 1035–1036; Faulkinbury v. Boyd & Associates (2013) 216 Cal.App.4th 220, 236. During breaks, an employee “must be free to attend to any personal business he or she may choose.” Brinker, 53 Cal.4th at 1036. An employee is working and “on duty” when he is “subject to the control of an employer,” “including all the time the employee is suffered or permitted to work, whether or not required to do so.” Wage Order No. 9 § 2(H). Time spent by an employee waiting on standby for the benefit of the employer is considered to be on duty. Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.
Certification of a Class Under California Law
The California Supreme Court has identified three requirements for the certification of a class: (1) “the existence of an ascertainable and sufficiently numerous class”; (2) a well-defined community of interest”; and (3) “substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4th 1004, 1021. The community of interest requirement in turn has three factors: (1) common questions of law or fact predominate over individual questions; (2) the class representatives have claims or defenses typical of the class; and (3) the class representatives can adequately represent the class. Id.
Meal and Rest Breaks for "On Call" Health Care Employees
As the California Supreme Court has noted, an employer meets the requirements of the applicable Wage Order’s meal period requirement if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Id. at 1036.However, in the health care industry, as discussed in a Division of Labor Standards Enforcement ("DLSE") Opinion Letter approved by the Brinker Court, an employer may require an employee to remain on its premises, “so long as the worker is relieved of all duties during the meal period.” Dept. Industrial Relations, DLSE Opinion Letter No. 1996.07.12 (July 12, 1996) p. 1 (“1996 Opinion Letter”). In that Opinion Letter, the DLSE discussed whether an employee that is required to carry a pager during a purported meal period must be compensated. The DLSE determined that: "[s]o long as the employee who is simply required to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for. On the other hand, if the employee responds, as required to a pager call during the meal period, the whole of the meal period must be compensated."