Employment Law
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Mandatory Meal and Rest Periods
Labor Code §§ 226.7 and 512 and the applicable wage orders requires an employer to authorize and permit meal and rest periods to its employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes, and from employing an employee more than ten hours per day without providing the employee with a second meal period of not less than 30 minutes. “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1035 (2012). “An employer must relieve the employee of all duty for the designated period.” Id. at 1034. An employer cannot “impede or discourage [employees] from [taking breaks].” Id. at 1040. Section 226.7 and applicable wage orders also require employers to authorize and permit employees to take 10-minute rest periods for each four hours or major fraction thereof of work, and to pay employees their full wages during their rest periods. “[A]s a general matter, one rest break should fall on either side of the meal break.” Id. at 1032. Unless the employee is relieved of all duty during the 30-minute meal period and 10-minute rest period, the employee is considered “on duty” and the meal or rest period is counted as time worked under the applicable wage orders. When an employer fails to provide a rest or meal period in accordance with the applicable wage orders, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that a required rest period is not provided, and one additional hour of pay for each work day that a compliant meal period is not provided. Labor Code § 226.7.
Compensation for On-Call Shifts
It is well established that an employee’s on-call or standby time may require compensation. “Of course, an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself.” (Armour & Co. v. Wantock (1944) 323 U.S. 126, 133; see Skidmore v. Swift & Co. (1944) 323 U.S. 134, 137 (“Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.”); Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, 406 (concluding officers’ on-call mealtime was compensable hours worked).)
Establishing Typicality in a Class Action Suit
The first, and most important, benefit of a class action procedure will be that it prevents “a failure of justice in our judicial system.” Linder v. Thrifty Oil Co., (2000) 23 Cal.4th 429, 434-435.
California Law Regarding Depositions and Discovery
“Any party may obtain discovery…by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (C.C.P. § 2025.010.)
Penalties in California Wage & Hour Suits
California Labor Code § 510 requires employers to pay overtime compensation for hours worked over eight hours per day and 40 hours per week. An employer may avoid paying overtime for hours worked over eight per day by adopting a valid Alternative Workweek Schedule ("AWS"). The procedures for adopting a valid AWS are set forth in Labor Code § 511 and the relevant Industrial Welfare Commission (“IWC”) Wage Order No. 16 (California Code of Regulations, title 8, § 11160, subd. 3(B), 3(C)). 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. Prior to the election, the employer must issue a written notification to the affected employees, explaining the election process and the effects of the AWS on the employees’ work schedule and compensation.
When Can A California Court Refuse To Compel Arbitration?
Unlike the Federal Arbitration Act (“FAA”), the California Arbitration Act (“CAA”) expressly permits courts to deny a petition to compel arbitration where related litigation or other proceedings create a risk of conflicting rulings. Cal. C.C.P. § 1281.2(c). “Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward.” Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S. 468, 470 (1989).
Argument for Denial of Summary Judgement in a Retaliation Case
The plaintiff’s prima facie burden in a retaliation case is to (1) show he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (McRae v. Dept. of Corr. & Rehab. (2006) 142 Cal. App. 4th 377, 386). Once the plaintiff has established a prima facie case of retaliation, the defendant must provide a legitimate, nonretaliatory explanation. The burden then shifts back to the plaintiff to show this explanation is merely a pretext for the retaliation. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68–9.)An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to his employer of unsafe working conditions, or work practices, in his employment or place of employment.” (Labor Code § 6310(b).) In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that he believes to be unsafe. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299.)
Enforcement of Arbitration Agreements
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 2-16, provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Under the Act, “arbitration agreements [are] on an equal footing with other contracts,” and courts must enforce arbitration agreements according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 66 (2010). “Like other contracts, however, they may be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’ ”
The Elements of Fraud
The elements of fraud are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996).
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).)