« October 2007 | Main | December 2007 »
The Supreme Court will review Harris v. Superior Court (Liberty Mutual Insurance) (2007) 154 Cal.App.4th 164, a case involving the administrative exemption as applied to certain insurance company claims adjusters under Wage Order 4-2001. A statement of issues has not yet been posted. We previously discussed the case in a post last August.
The Supreme Court closed and transferred two cases for reconsideration in light of Gentry v. Superior Court (2007) 42 Cal.4th 443. The two cases, both of which were discussed here previously, are Massie v. Ralphs Grocery and Konig v. U-Haul Co. of California.
Massie:
Petition for review after the Court of Appeal affirmed orders denying petitions to compel class arbitration in a civil action. The court ordered briefing deferred pending decision in Gentry v. Superior Court (S141502), which presents issues regarding the enforceability of an arbitration provision that prohibits employee class actions in litigation concerning alleged violations of California's wage and hour laws.
The above-entitled matter is transferred to the Court of Appeal, Second Appellate District, Division Seven, with directions to vacate its decision and to reconsider the cause in light of Gentry v. Superior Court (2007) 42 Cal.4th 443. (Cal. Rules of Court, rule 8.528(d).)
Konig:
Petition for review after the Court of Appeal affirmed an order granting a motion to compel arbitration in a civil action. The court ordered briefing deferred pending decision in Gentry v. Superior Court (S141502), which presents issues regarding the enforceability of an arbitration provision that prohibits employee class actions in litigation concerning alleged violations of California's wage and hour laws.
The above-entitled matter is transferred to the Court of Appeal, Second Appellate District, Division Five, with directions to vacate its decision and to reconsider the cause in light of Gentry v. Superior Court (2007) 42 Cal.4th 443. (Cal. Rules of Court, rule 8.528(d).
[Update] The court did the same in three other cases:
Dunn v. Superior Court (Kroger Co.):
Application for stay and petition for review GRANTED. Further action in this matter is deferred pending consideration & disposition of a related issue in Gentry v. Superior Court, S119334 and Murphy v. Kenneth Cole Productions, Inc., S140308 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing pursuant to Cal. Rules of Court, rule 8.520, is deferred pending further order of the court.
The above-entitled matter is transferred to the Court of Appeal, Second Appellate District, Division Two, with directions to vacate its decision and to reconsider the cause in light of Gentry v. Superior Court (2007) 42 Cal.4th 443. (Cal. Rules of Court, rule 8.528(d).)
Petition for review after the Court of Appeal reversed an order denying a motion to compel arbitration. The court ordered briefing deferred pending decision in Gentry v. Superior Court (S141502), which presents issues regarding the enforceability of an arbitration provision that prohibits employee class actions in litigation concerning alleged violations of California's wage and hour laws.
In light of the decision in Gentry v. Superior Court (2007) 42 Cal.4th 443, review in the above-entitled matter is dismissed. (Cal. Rules of Court, rule 8.528(b)(1).)
and Jones v. Citigroup:
Petition for review after the Court of Appeal reversed an order denying a motion to compel arbitration in a civil action. The court ordered briefing deferred pending decision in Gentry v. Superior Court (S141502), which presents issues regarding the enforceability of an arbitration provision that prohibits employee class actions in litigation concerning alleged violations of California's wage and hour laws.
The above-entitled matter is transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions to vacate its decision and to reconsider the cause in light of the decision in Gentry v. Superior Court (2007) 42 Cal.4th 443. (Cal. Rules of Court, rule 8.528(b)(1).)
To our knowledge, that means that all Gentry companion cases are now back at the trial courts or Courts of Appeal.
The default statute of limitations for an action to recover a statutory penalty is one year, unless the statute provides otherwise. Code of Civil Procedure § 340 ("Within one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.") Labor Code § 203, the statute for recovering waiting time penalties for failure of an employer to promptly pay an employee's final wages specifies a longer period:
“If an employer willfully fails to pay . . . any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. . . . [¶] Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.”
So it's pretty clear that an employee suing for waiting time penalties after, say, two years, shouldn't have to worry about those pesky statutes of limitations, right? As Lee Corso would say, "Not so fast, my friend."
In McCoy v. Superior Court (Kimco Staffing Services, Inc.) (2007) __ Cal.App.4th __, Derrick McCoy filed a class action complaint arising from Kimco Staffing's alleged practices of making employees wait for their final paycheck until the next regular payday. The defendant sought to strike parts of the complaint, saying that employees who had only a waiting time penalty claim, and who left Kimco Staffing's employment more than a year before the complaint was filed, should have their claims barred. Orange County Superior Court Judge Stephen Sundvold agreed, and struck portions of the complaint seeking waiting time penalties for late payment of wages. The plaintiff filed a writ petition, claiming that, pursuant to Labor Code § 203, even when an action seeks waiting time penalties only, the statute of limitations should be the same as that which would apply to a claim for wages. That measure, he argued, was four years (applying the four-year statute for unfair competition). The Court of Appeal disagreed, holding that
when a suit seeks for only waiting time penalties, the one-year statute under section 340(a) governs.
Why? Because Section 203 was enacted to give employees additional time to sue for waiting time penalties when they also bring an action for late wages. "Nothing in the statute otherwise negates the one-year period in section 340(a)."
Plaintiff contends the statute of limitations in section 203 applies to any action for penalties, regardless of whether there is also a claim “for the wages from which the penalties arise.” He points to Code of Civil Procedure § 312, which directs: “Civil actions, without exception, can only be commenced within the periods prescribed in this title [setting out the general statutes of limitations], after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” Plaintiff asserts that section 203 is “one of these ‘special cases’” that contains its own statute of limitations, thereby supplanting section 340. We agree with plaintiff to the extent the period set out in section 203 applies to actions for waiting time penalties sought in conjunction with back wages. But for suits seeking penalties alone, the objective of section 203, the legislative intent, and the common sense meaning of the section’s language persuade us defendant’s interpretation is correct.
The opinion is worded fairly strongly, and the court falls barely short of dismissing the plaintiff's arguments as silly. The court gave no weight to dicta in Murphy v. Kenneth Cole Productions, Inc., that appeared to support McCoy's view of Section 203:
In reaching its conclusion, the court referred to section 203, noting that the Legislature understood “it could, if it so desired, trigger a one-year statute of limitations by labeling a remedy a penalty.... Knowing that remedies constituting penalties are typically governed by a one-year statute of limitations, the Legislature expressly provided that a suit seeking to enforce the section 203 penalty would be subject to the same threeyear statute of limitations as an action to recover wages. [Citation.]” (Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at pp. 1108-1109.) Like the trial judge, we are not persuaded by plaintiff’s claim this dictates the one-year statute does not apply where an employees sues only for waiting time penalties.
Because of the holding limiting the claims to one year, the court did not address McCoy's claim that the "expiration of the statute of limitations on an action for the wages from which the penalties arise" is four years under the unfair competition theory. Handicapping this one, we would have found interesting the undecided issue of whether the measure is three years or four, but we wouldn't have given the employer much of a chance on the one-year issue.
You can download the full text of McCoy v. Superior Court here in pdf or word format.
Statement of issues on review have finally been posted in Arias v. Superior Court (Angelo Dairy), no. S155965:
Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issues:
(1) Must an employee who is suing an employer for labor law violations on behalf of himself and others under the Unfair Competition Law (Bus. & Prof. Code, section 17203) bring his representative claims as a class action?
(2) Must an employee who is pursuing such claims under the Private Attorneys General Act (Lab. Code, § 2699) bring them as a class action?
Apparently, Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2007) 148 Cal.App.4th 39, is the lead case. The first issue looks like an interesting one. The second one looks like a no-brainer.
The Department of Labor once used Batgirl, Batman & Robin to promote equal pay statutes.
The California Prevailing Wage Law mandates the payment of prevailing wages to workers employed in the execution of a contract for public works. Labor Code § 1771. In Williams v. SnSands Corporation (2007) __ Cal.App.4th __, Fred H. Williams, an employee truck driver for S&S Trucking (SnSands Corporation), sued for unpaid wages for hauling materials to, and off-hauling materials from, a public works construction project. The trial court applied prevailing wage standards and awarded Williams $76,853.27 in prevailing wages for his off-hauling work. The Court of Appeal reversed.
S&S Trucking’s off-hauling of the generic materials to a locale bearing no relation to the public works project site, as described in the two scenarios, was no more an integral part of the process of the public works project than the delivery of generic materials to the public works site by a bona fide material supplier. In the absence of evidence that, either by contract or custom, the off-hauling described in scenarios C and D was “‘an integrated aspect of the “flow” process of construction,’” (Sansone, supra, 55 Cal.App.3d at p. 444, quoting Green, 12 supra, 128 N.W.2d at p. 7), the prevailing wage statute was not applicable to the offhauling performed by Williams.
For the next 60 days or so, you can download Williams v. SnSands Corporation in pdf or word format.
While an undocumented alien generally cannot recover front pay in employment litigation, anyone, documented or not, is generally entitled to recover wages due for actual labor performed, even if they laborer lacked the requisite papers for lawful employment. Employers who discover that they owe wages to undocumented aliens often do not know how to process the payroll without a valid social security number. There is, however, a way to do it. The employee needs to obtain an individual taxpayer identification numbers (ITIN).
Since May 29, 1996, the IRS has assigned ITINs to aliens who are otherwise ineligible for SSNs but who need taxpayer identification numbers for tax purposes. 61 Fed. Reg. 26,788. A valid ITIN is a nine-digit number, like a social security number or any taxpayer identification number, and always begins with a 9. An ITIN is a tax processing number for both resident and nonresident aliens, as well as their spouses and dependents. It can be used only for income tax purposes. It does not entitle them to social security benefits or the earned income tax credit. It does not create any inferences regarding their immigration status. It bestows upon them no right to work in the U.S. Aliens must apply for an ITIN on IRS Form W-7 (Application for IRS Individual Taxpayer Identification Number). IRS Tax Topic 857.
The application must show a federal tax purpose for seeking the ITIN. In most cases, this will require attaching a federal tax return to the most current revision of the Form W–7 available. Along with the completed Form W-7, they will submit identity documents, and either a federal tax return, or other documentation to show the federal tax purpose for which they need the ITIN.
The identity documents are needed to verify both identity and foreign status; one must include a recent photograph. If one submits an original valid passport (or a notarized or certified copy of a valid passport) there is no need to submit any other documents. If one does not submit a passport document, one must provide a combination of documents (at least two or more) that are current and that (1) verify identity (that is, contains a name and a photograph), and (2) support your claim of foreign status.
If the ITIN is for a dependent, the documentation must prove that the dependent lives in the United States, Mexico, Canada, Japan, The Republic of Korea, and India. If the dependent is a minor, the documentation must establish the relationship between the dependent and the representative signing the application on the dependent's behalf. Such documentation could include a birth certificate, adoption papers, or other court-appointed papers showing legal guardianship.
In addition to a passport, examples of acceptable documentation include: national identification card (showing photo, name, current address, date of birth and expiration date); civil birth certificate; foreign driver's license; or visa. A complete list of acceptable documentation can be found in the instructions to the Form W-7. The documents must be originals or certified copies.
Aliens can apply for an ITIN by mail or in person at most IRS offices in the United States. If they apply in person, the documents will be reviewed and returned to them. Publication 1915, Understanding Your IRS Individual Taxpayer Identification Number, has a list of IRS offices abroad which can accept Form W–7. If applying by mail, use the address shown in the Form W–7 instructions and in Publication 1915. If the original documents have not been returned within 60 days, call 1–800–829–1040 (in the United States), or 1–215–516–2000 (outside the United States), to find out about the status. It takes approximately 4 to 6 weeks for the IRS to notify the application in writing of his or her ITIN. For more information, refer to Publication 1915. You may also want to obtain Publication 519, U.S. Tax Guide for Aliens. For information about who qualifies to be claimed as a dependent, refer to Topic 354.
No substantive posts today. We might put up a canned post tomorrow. One that we wrote a long time ago and never got around to posting.
Employment Practices Liability Insurance generally does not cover wage & hour liability, but we've seen a few cases recently where defendants had policies with ELPI riders that provided some cost of defense coverage for defending wage & hour cases. We've also heard of a few cases tendered under officers & directors policies where some money was put on the table by insurer, but no one wants to provide the specifics.
We overheard someone (not a speaker) at a recent seminar opining that Wal-Mart settled its California meal period case for a fraction of the amount of the jury verdict. Not true. The appeal is still pending, and just a few days ago, Wal-Mart received yet another extension of time to file its opening brief. Savaglio filed an opening brief on the plaintiffs' appeal on August 24, 2007. Wal-Mart's brief is due on Christmas Eve.
Recent Comments