Employment Law
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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).
Administrative Exemption from Overtime in California
“[U]nder California law, exemptions from statutory mandatory overtime provisions are narrowly construed. Moreover, the assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee’s exemption.” Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794–795 (internal citations omitted). California Labor Code section 510(a) requires employers to pay overtime compensation—that is, to compensate its employees at a higher rate for hours worked over eight in a day or forty in a week. Lab. Code § 515(a) gives the Industrial Welfare Commission (“IWC”) the authority to establish exemptions from the overtime pay requirement. The IWC promulgated Wage Order No. 4, which relates to “professional” and “technical” employees. Cal. Code Regs., tit. 8, § 11040. The wage order establishes four exemptions from the overtime requirement: the (1) executive, (2) administrative, (3) professional, and (4) computer professional exemptions. Id. at subd. 1(A). Pursuant to the Wage Order, in order to be exempt, an employee must perform exempt duties more than fifty-percent of the time.
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).)
Classification of Personal Assistants and Live-In Caregivers
California law defines a “personal attendant” as "any person employed by a private householder . . . in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked." (Labor Code § 1451(d).)
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.
What Counts as "Wages" in the Context of Waiting Time Penalties?
Labor Code §§ 201-203 require an employer to pay all wages owed to an employee who has been discharged or who has quit. If the employer fails to pay an employee all wages owed within the statutorily required time period, § 203 calls for a penalty on the employer equal to one day’s rate of pay for each day the employer fails to pay, for a time period not to exceed 30 days. An employer's liability for waiting-time penalties under Labor Code § 203 flows directly from the violations established above. An employer can easily satisfy the requirement that their failure to pay proper wages upon termination was “willful.” The standard for willful is not high: “[t]he employer’s refusal to pay need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due.” Rivera v. Rivera, No. 10-CV-01345-LHK, 2011 WL 1878015 at *7 (N.D. Cal. May 17, 2011). A willful failure to pay wages within the meaning of § 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. Id.