Wage Law

Debtor's Prisons?

This is slightly off topic, but since we have some unsatisfied judgments we're trying to collect, this story caught our eye. "U.S. marshals arrest man for unpaid student loan." You can have someone arrested for not paying a debt? We've got some former employers we'd love to have tossed in jail for failing to pay their workers. But we abolished debtor prisons long ago right?

Right.

He wasn't arrested for not paying a debt. He was ordered to show up for a debtor's exam, and he disregarded the court order, so he got a bench warrant for that. It took them three years to get him, too. Fortunately, we usually get our money faster than that.

If You Spam Us, and Google Smacks You, Don't Come Asking Us For Help

A fellow named Ener sent us a email last week asking us to remove a spammy comment and link his company, logoworkgloves.com, left on one of our posts in 2010. For whatever reason, our spam filter didn't block it. Now logoworkgloves.com has been penalized by Google and they want our help removing their spam comment. And we are going to do it, just as soon as the time comes when we have nothing better to do than search three year old posts for spammers so that they can get a better listing on Google. #MightNeverHappen

How to File a Report of a Labor Law Violation in California

This very useful page on the DIR's website explains how an employee or former employee can report a labor law violation with the Division of Labor Standards Enforcement's (DLSE) Bureau of Field Enforcement (BOFE) about a variety of wage and hour violations, including violations concerning minimum wage, overtime, failure to give meal and/or rest periods, reimbursement for uniforms, payroll record keeping, cash shortages, child labor laws, failure to carry workers' compensation insurance, wage statement violations, failure to provide break time or locations to express milk and several others.

The list is also a handy short list of issues wage and hour lawyers like us us might use to explore client's options during an intial client interview.

Governor Brown Signs AB 2674

AB 2674 has been signed into law, amending the recordkeeping and inspection provisions under Labor Code § 226 and reducing the violations of these provisions from a misdemeanor to an infraction.

Existing law requires that every employer, semimonthly or at the time of each payment of wages, furnish to each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing specified items. Existing law requires an employer to keep a copy of the statement and the record of deductions on file for at least 3 years at the place of employment or at a central location within the State of California. This bill would provide that the term “copy,” for purposes of these provisions, includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information that existing law requires to be included in the itemized statement.

Under existing law, an employee has the right to inspect the personnel records that his or her employer maintains relating to the employee’s performance or to any grievance concerning the employee. This bill would require an employer to maintain personnel records for a specified period of time and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within a specified period of time, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. The bill would provide that an employer is not required to comply with more than 50 requests for a copy of the above-described records filed by a representative or representatives of employees in one calendar month. The bill would provide that the above provisions shall not apply with respect to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event an employer violates these provisions, the bill would permit a current or former employee or the Labor Commissioner to recover a penalty of $750 from the employer, and would further permit a current or former employee to obtain injunctive relief and attorney’s fees.

Under existing law, an employer who fails to permit an employee to inspect the employee’s personnel records is guilty of a misdemeanor punishable by a fine or imprisonment, as specified. This bill would, instead, provide that a violation of the above provisions requiring that personnel records be made available for inspection constitutes an infraction.

You can read the full text of the bill here in PDF.

Real Wages Keep Falling

Real average hourly earnings fell 1.6% from October 2010 to October 2011. Although wages were up about 1.8%, they failed to keep up with the 3.6% inflation rate published by the Bureau of Labor Statistics.

Great News!

We're blogging again.

But that's not the great news. This is: wages are finally on the rise again.

Supreme Court Upholds Prop 8

This is off-topic, but it's such big news in general and among employment litigators, we thought we'd post it - especially for those who are having trouble getting to the opinions page. In Strauss v. Horton, and related cases, the California Supreme Court has upheld Proposition 8, but has ruled that gay marriages that were entered into on or before election day shall remain valid. Here's the heart of the holding, which can be found on pages 12 and 13 of the majority opinion:

Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.

...

Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.

The majority opinion, 5-2 with Justices Kennard and George joining the three dissenters (Baxter, Chin and Corrigan) from In re Marriage Cases, is 136 pages long. Justice Kennard wrote a concurring opinion that added some analysis that was not included in the majority opinion. Justice Werdegar (who did not sign the majority opinion) wrote a concurring opinion in which she agreed that Prop 8 was valid, and that existing marriages are not to be retroactively voided, but disagreed with the most of the majority's analysis. Justice Moreno wrote a concurring and dissenting opinion in which he agreed with the part of the decision that validated the existing marriages, but disagreed that Prop 8 was a valid revision to the constitution. So the vote was 5-2 on the majority opinion, but on the issues, it was 7-0 on keeping existing gay marriages in place, and 6-1 in favor of upholding Prop 8 as a valid amendment to the Constitution.

The majority went to great lengths to say how they were forced to come to this conclusion even though they may disagree with the people's decision.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

Second, it also is necessary to understand that the legal issues before us in this case are entirely distinct from those that were presented in either Lockyer or the Marriage Cases. Unlike the issues that were before us in those cases, the issues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statute on the basis of the official’s personal view that the statute is unconstitutional, or the validity (or invalidity) of a statutory provision limiting marriage to a union between a man and a woman under state constitutional provisions that do not expressly permit or prescribe such a limitation. Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

In considering this question, it is essential to keep in mind that the provisions of the California Constitution governing the procedures by which that Constitution may be amended are very different from the more familiar provisions of the United States Constitution relating to the means by which the federal Constitution may be amended. ... 

To get to the opinions page, go here:
http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi

To download the opinion in MS-Word, right click here:
http://www.courtinfo.ca.gov/opinions/documents/S168047.DOC

To download the opinion in PDF, right click here:
http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF

The Court's press release on the opinion can be read here:
http://www.courtinfo.ca.gov/presscenter/newsreleases/NR29-09.PDF

Brewer v. Premier Golf Properties is Final

The Supreme Court denied petitions for review and depublication in Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243. We discussed the opinion in an earlier post that can be found at this link. The case was notable both for declaring punitive damages unavailable in claims made for Labor Code wage-and-hour violations, and for upholding the trial court's award for meal period and rest period violations. A remittitur was issued on March 23, 2009.

Your May Day Points and Authorities

"Thou shalt not oppress a hired servant that is poor and needy, whether he be of thy brethren, or of thy strangers that are in thy land within thy gates." Deuteronomy 24:14 (King James Version). See also California Labor Code § 1171.5; Reyes v. Van Elk (2007) 148 Cal.App.4th 604.

Where to File Your DLSE Claim

If you don't have a lawyer, and you want to bring a wage claim against your employer, one of the first decisions you have to make is where to go to file your claim before the Labor Commissioner's office. This link will tell you where to go. Click on the letter of the city where you worked, then click on the name of the city, and it will direct you to the correct DLSE venue. Good luck.

University of California Salary Database

If you are curious about the wages earned by particular employees of the U.C. system, check out this link from the Orange County Register. Of the 250,000 people employed by the University of California system, 3,018 earned a gross pay of $200,000 or more. Most are doctors, chancellors and coaches. The database covers employees who grossed $25,000 or more. You can search by top earners, gross pay range, employee name or UC campus. The database covers 2007. Rick Neuheisel, for example, isn't in there. Jeff Tedford is, however. He's number one on the salary list.

Happy President's Day

The U.S. President earns an annual salary of $400,000 (exempt from overtime) in addition to a generous expense account and, of course, use of a home with 132 rooms, 32 bathrooms, a theater, bowling alley, tennis court and other amenities, including a private jet and a vacation resort at Camp David. Adjusting for inflation, however, the president's salary is less than half of what it was in 1969.

Happy Birthday, Mr. Lincoln

Two hundred years ago today was born one of the greatest Americans ever to live. Remarkably, that same day, Charles Darwin was born. How many days in history have spawned two people who so dramatically influenced the history of the world?

Don't forget, state courts are closed. If you are counting court days when calendaring due dates for pleadings and other papers, today does not count as a court day. Neither does next Monday.

9th Circuit RSS Feeds

The United States Court of Appeals for the Ninth Circuit now offers several RSS feeds with headlines, descriptions and links back to its website for complete information. Opinions, Memoranda - Unpublished Dispositions, Cases of Interest and Announcements can now all be obtained through their RSS feeds.

Note, however, that if you are using Internet Explorer 6.0 or earlier, you will need to obtain an RSS Reader.

Department of Industrial Relations Organizational Chart

If you've ever wondered who answers to whom in the Department of Industrial Relations, here is a current organizational chart. A lot of people think that the Labor Commissioner answers directly to the Governor. In reality, there are three bureaucrats between the Labor Commissioner and the Governor.

California Lawyer's Employment Roundtables

We've noticed that the Employment Law Roundtables in California Lawyer do not offer a particularly even or broad sampling of viewpoints. Given recent legal and political events, the January 2009 roundtable, in particular, seemed particularly worthy of an employee's representative or two:

This month, with the inauguration of Barack Obama as the country's 44th president, comes the promise of closely watched changes to U.S. employment law and policy. Most notably, the Employee Free Choice Act (EFCA), which President-elect Obama has pledged to sign if given the opportunity, would dramatically modify the National Labor Relations Act in ways likely to increase union membership and impact the collective bargaining process. Additionally, pending legislation such as the Lilly Ledbetter Fair Pay Act and the Working Family's Flexibility Act will introduce new challenges and opportunities for employers and legal practitioners.

Our panel of experts from Northern California discuss the potential effects of this legislation, as well as recent, influential cases and decisions, such as Brinker Restaurant Corp. vs. Supreme Court of San Diego, Harris vs. Superior Court, and Nadaf-Rahrov vs. Neiman Marcus. They are Mike D. Moye and Diane Marie O'Malley of Hanson Bridgett; JoAnna L. Brooks and Bradley Kampas of Jackson Lewis; and Tom McInerney of Ogletree, Deakins, Nash, Smoak & Stewart. The roundtable was moderated by freelance writer Bernice Yeung and reported for Barkley Court Reporters by Krishanna DeRita.

Even the one notable Barack Obama supporter was a defense lawyer whose firm specializes in representing management. These are all fine lawyers, from what I can tell, but the panel is single-minded, and the discussion is one-sided:

It will also be important for the court to articulate, with the Brinker and the Brinkley decisions, a standard that is sufficiently helpful to avoid class certification because, even under Brinker and Brinkley, sufficient room for an allegation of a practice amounts to a policy that would permit class certification. In talking to some plaintiffs' lawyers, there are a number of them who don't view Brinker as the end of the road as much as introducing a twist or turn.

The Court of Appeal (Second Appellate District) basically created such a high standard in Harris that it would be very difficult for any employee to be deemed an administrative employee. Thankfully, the supreme court granted review of it, and the hope is that the supreme court will limit the Court of Appeal decision. As it stands, the decision is not very helpful in the context of class certification; it would make it virtually impossible, except for the most senior employees at a company, to be deemed administratively exempt from overtime.

Nadaf-Rahrov v. Neiman Marcus is an unfortunate case from the Court of Appeal (First Appellate District). ... The recent Court of Appeal decision is certainly not a helpful case for the defense, but it's not surprising. What's troubling to me about this decision is that the court essentially said that when an employer is considering whether or not to terminate someone in this situation, they have to consider whether the company might have an appropriate job opening in a few months such that the employer would have to keep the employee on leave until that potential job possibly opens up.

Some, or even all, of these perspectives may prove correct. But they do not reflect an accurate sampling of views on these subjects, which is what a reader would reasonably expect from something called an Employment Law Roundtable. Moreover, this panel's composition is not an abberation. The two prior roundtables, in August 2008 and February 2008, had similar panels. last  If they are going to invite only defense lawyers, and it's nothing more than a forum for promoting the viewpoints of the defense bar, they should at least have the decency to label it the Employment Defense Roundtable.

For Better Labor Laws

Why Martin Luther King, Jr. Died in Memphis

Martin Luther King, Jr. is remembered by all Americans as a champion of racial equality. Less widely known is that he was equally concerned with workers' rights and fair wages. Most well-informed Americans know that King was assassinated in Memphis on April 4, 1968. Not as many are aware that the reason he was in Memphis was to show support for underpaid city garbage workers.

Memphis sanitation workers earned only about $1.70 per hour, on average. Almost half made so little that they qualified for welfare benefits despite having jobs. On February 12, 1968, approximately 1,300 garbage workers walked off their jobs and demanded recognition of the American Federation of State, County and Municipal Employees, AFSCME as their collective bargaining unit. They sought, among other things, the right to overtime pay, and a wage increase.

On March 18, Martin Luther King spoke at a rally of 17,000 supporters, drawing national attention to the strike.

"It is criminal to have people working on a full-time basis ... getting part-time income ... We are tired of working our hands off and laboring every day and not even making a wage adequate with daily basic necessities of life."

King called for a March to take place ten days later. After King returned to lead the march, President Lyndon Johnson and AFL-CIO President George Meany tried to intervene, but were rebuffed by Memphis Mayor Henry Loeb. King returned again to Memphis on Wednesday, April 3. He delivered his final speech before a gathering of 10,000 supporters at the Masonic Temple.

"Memphis Negroes are almost entirely a working people. Our needs are identical with labor's needs -- decent wages, fair working conditions, livable housing, old age security, health and welfare measures, conditions in which families can grow, have education for their children and respect in the community. That is why Negroes support labor's demands and fight laws which curb labor. That is why the labor-hater and labor-baiter is virtually always a twin-headed creature spewing anti-Negro epithets from one mouth and anti-labor propaganda from the other mouth."

"I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And he's allowed me to go up to the mountain, and I've looked over, and I've seen the promised land. I may not get there with you. But I want you to know tonight that we as a people will get to the promised land."

The following morning, James Earl Ray shot King on the balcony outside his room at the Lorraine Hotel. Twelve days after the assassination, union leaders and Memphis officials reached an agreement that brought better working conditions and wage increases of 15 cents per hour before the end of 1968.

In 1966, King had called upon Congress to increase the minimum wage.

"We know of no more crucial civil rights issue facing Congress today than the need to increase the federal minimum wage and extend its coverage. ... A living wage should be the right of all working Americans."

The federal minimum wage reached its historic high in 1968. Adjusted for inflation, it was equivalent to more than $9.00 today. As tomorrow's inauguration of Barack Obama demonstrates, the fight for racial equality has taken great strides in the past 40 years. The fight for fair pay for working class Americans, less so. As you remember Dr. Martin Luther King, Jr. today, recall that we didn't just lose a champion for racial equality when he died; we also lost a champion of the working man.

Bank Error in Your Favor - Heller Employees Could Get Money After All

Heller Ehrman's bankruptcy filing might not leave its employees unpaid for wages or wage-related claims. Although Heller's bank had a security interest, and its landlord obtained a right to attach order and writ of attachment against the firm, it is being reported that Bank of America and Citibank may have blown a security interest that could result in more than $51 million of Heller Ehrman's loan payments being declared avoidable preferences in bankruptcy court. If the court requires the banks to pay back money on old debts they collected from the firm during the 90 days immediately prior to its December 28, 2008 bankruptcy filing, there could be a substantial pot of cash avaialble to pay the employees who are pursuing a WARN Act class action or any other type of wage claims against the firm. Any valid claims for straight wages due for labor performed would be priority claims, which would require that the employees be made whole on such claims before unsecured creditors get paid anything.

Don't Messenger Your Briefs to the Supreme Court in L.A. This Week,

especially not on the last day to file. Our public service announcement of the week:

Holiday Closure of Los Angeles Office of
the Supreme Court of California
December 29, 2008 - January 2, 2009

Filings should be sent by priority or express mail, or by
a common carrier - overnight delivery (see Cal. Rules of Court, rule 8.25(b))
to the court's main office at 350 McAllister Street,
San Francisco, CA 94102-4797
(415) 865-7000

Brewer Is The Law of the Land in All 58 Counties

The punitive damage decision in Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243, though hardly a surprise to wage and hour specialists*, has been received as good news for employers and their attorneys, but some are not taking the good news far enough. In the past week, we have seen two separate alerts that have advised employers that the Brewer decision is binding precedent in the counties of the 4th District Court of Appeal, meaning San Diego, Imperial, Orange, Riverside, San Bernardino and Inyo Counties. Technically, that's true, but it's not the whole truth. Brewer is binding precedent in the trial courts of all 58 counties in California. People v. Bullock (1994) 26 Cal.App.4th 985, 990, 31 Cal.Rptr.2d 850, 854 (opinions of the various district appellate courts are equally binding on all trial courts.) Stare decisis binds your trial court in Los Angeles just as surely as it does your trial court in San Diego.

Another Court of Appeal, in another district or another division of the 4th District, would not be similarly bound, but the only case we know of that currently has the opportunity to go in another direction is Savaglio v. Wal-Mart Stores, Inc., which is now stayed pending the outcome of Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25.

* There is no wage and hour specialty certified by the State Bar of California.

Fighting For Fees

You hear stories about attorneys fight each other over fees, especially in class actions, all the time. Usually, however, the fight is not literally a fight. Usually.

Online Salary Information

We found a website called Glass Door has a pretty cool feature that lets you provide or retrieve salary information for more than 14,000 places of employment. Check it out.

Goodbye, Parker Directory

The 90th edition of the Parker Directory of California Attorneys, due out in 2009, will be its last. We remember when this was one of the key books every litigator we knew had on the desk or shelf, along with the Rutter Group's Civil Procedure Before Trial and the Standard California Codes, Four-in-One edition and a couple of others. We no longer use it much. The Internets are probably to blame.

Happy Veterans Day 2008

We will be working and posting today, but on this day every year, we pause to remember the sacrifices American soldiers made, and continue to make, to protect the rest of us and help preserve our way of life here in the United States of America.

The Economy and Wage & Hour Cases

September was a slow month for blogging because it was a busy month for everything else. Our experience, and what we've been hearing from other wage and hour lawyers is that the economy is increasing workloads. More employers are cutting corners, more unemployed workers are talking to lawyers and more people are pursuing wage claims. That doesn't mean that wage and hour work is recession-proof. We know of several wage and hour class action settlements that fell apart or resulted in unpaid judgments as defendant banks, retail and restaurant chains have gone under, and we've seen several motions to withdraw for lack of payment of fees.

Hearsay

So we're sitting in a coffee shop, not far from where a judge's convention happens to be taking place, minding our own business. We hear a couple talking loudly about class actions. We can't help but overhear. One of them goes on and on about a case:

• It's a sweetheart deal; company not opposing; the plaintiff's lawyers are submitting huge bills.
• They went to mediation just to get a recommendation on the fee issue, solely on the fee issue. ... It's all window dressing as far as I can see. ...  had little charts with all the names of the people and the rates, and you could tell some of them weren't lawyers. Who are these people? Let's be real.
• So we had a second hearing for hours and time. They still didn't give me what I wanted. So I said I'm going to give you one more chance.
• They felt that X% was appropriate. You know how many claims were submitted? $50,000 worth. Then they submitted a request for $1.3 million in fees, talking about what a wonderful success they were.
• I can set us up for an opinion on this one.

Then the other one pipes in:

• "That's the one that bugs me sometimes!"
• I don't mind settlements; I like to have my caseload diminished. But...

We turn around to see who these people are. Yes, they are judges. They appear to realize that they are sitting within earshot of a group of lawyers who can hear them chatting about the case, so they turn the volume down immediately, and within a few minutes, they are gone.

Whether you are a lawyer, or a judge, or just a businessman, you should alway be discreet. You just never know who's sitting near you.

Holiday Computations

Next Monday is another state court holiday, so don't forget to add a day to all your oppositions due this week. For future reference, here is a list of the California codes regarding dates to perform acts when the date falls on or after a court holiday.

• Code of Civil Procedure § 135. Judicial holidays; alternate day of observance from Saturday or Sunday

Every full day designated as a holiday by Section 6700 of the Government Code, including that Thursday of November declared by the President to be Thanksgiving Day, is a judicial holiday, except September 9, known as "Admission Day," and any other day appointed by the President, but not by the Governor, for a public fast, thanksgiving, or holiday. If a judicial holiday falls on a Saturday or a Sunday, the Judicial Council may designate an alternative day for observance of the holiday. Every Saturday and the day after Thanksgiving Day is a judicial holiday. Officers and employees of the courts shall observe only the judicial holidays established pursuant to this section.

• Government Code § 6700. State holidays; memorandum of understanding

The holidays in this state are:

(a) Every Sunday.

(b) January 1st.

(c) The third Monday in January, known as "Dr. Martin Luther King, Jr. Day."

(d) February 12th, known as "Lincoln Day."

(e) The third Monday in February.

(f) March 31st known as "Cesar Chavez Day."

(g) The last Monday in May.

(h) July 4th.

(i) The first Monday in September.

(j) September 9th, known as "Admission Day."

(k) The second Monday in October, known as "Columbus Day."

(l) November 11th, known as "Veterans Day."

(m) December 25th.

(n) Good Friday from 12 noon until 3 p.m.

(o) Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday.

Except for the Thursday in November appointed as Thanksgiving Day, this subdivision and subdivisions (c) and (f) shall not apply to a city, county, or district unless made applicable by charter, or by ordinance or resolution of the governing body thereof.

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action, except that if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.

• Code of Civil Procedure § 12. Computation of time

COMPUTATION OF TIME. The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.

• Code of Civil Procedure § 12a. Computation of time; holidays; application of section

(a) If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, "holiday" means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.

(b) This section applies to Sections 659, 659a, and 921, and to all other provisions of law providing or requiring an act to be performed on a particular day or within a specified period of time, whether expressed in this or any other code or statute, ordinance, rule, or regulation.

• Code of Civil Procedure § 12b. Computation of time; day on which public office closed considered holiday

If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.

• Code of Civil Procedure § 13. Holidays; postponing performance

CERTAIN ACTS NOT TO BE DONE ON HOLIDAYS. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed.

• Code of Civil Procedure § 13a.. Special holidays; optional performance or postponement

Any act required by law to be performed on a particular day or within a specified period of time may be performed (but is not hereby required to be performed) on a special holiday as that term is used in Section 6705 of the Government Code, with like effect as if performed on a day which is not a holiday.

Any act required by law to be performed on a particular day or within a specified period may be performed (but is not hereby required to be performed) on a Saturday, with like effect as if performed on a day which is not a holiday.

Regrettably, we owe someone attribution for this list, but as it was passed on to us, it was without attribution. We're passing it along anyway, because one of our opposing counsel, and you know who you are, just can't keep these rules straight.

Judge Bonnie Sabraw Retires

Many of the complex litigation cases in Alameda County, including a large number of wage and hour class actions, are being reassigned from Judge Bonnie L. Sabraw, who has retired, to Judge Steven Brick in Department 22. One of Judge Sabraw's last cases was the SprintPCS cell phone early termination fee case, in which she held that Sprint's $200 ETF violated California's unfair competition law. There is no change regarding the other complex litigation assignment, where Judge Robert Freedman in Department 20 is still handling complex cases.

Another Pitfall of Arbitration

Check out the 4th Circuit's decision earlier this year in Long John Silver's Rests. Inc. v. Cole, No. 06-1259 (4th Cir. 2008). The plaintiffs brought an FLSA "class action" which ended up in arbitration rather than U.S. District Court, where it would have properly treated it as an opt-in FLSA "collective action." The arbitrator ruled that the class action arbitration should be "opt-out," and the 4th Circuit affirmed the arbitrator's decision.

It happens to everyone, sooner or later. In one of our cases, at the arbitration scheduling conference, the defense counsel tried to argue that only a very limited sampling of records should be produced prior to certification, and even though we didn't ask for everything, the arbitrator decided that a sampling of 100% might be more appropriate. As my daughter would describe it, “The defense guy was all like ‘arbitration is not supposed to be about random truckloads of documents’, and the judge was all like 'you get those, oh yeah you do, nothing random, you get them all, the time records, the lists, the manuals, you get all those'. And we were all like 'w00t'." So we got an order compelling a non-random production of every last truckload of documents. Decision final. That probably was not what they had in mind when they filed the petition to compel arbitration.

Yiddish in Federal Court

When English fails, Yiddish may come to the rescue. Arguing in a summary judgment motion in U.S. District Court in Boston, the defense counsel for Sherwin-Williams wrote, in a responsive pleading:

"It is unfortunate that this Court must wade through the dreck of plaintiff's original and supplemental statement of undisputed facts."

Plaintiff's attorneys responded with a motion to strike that could serve as a primer on practical Yiddish for lawyers:

PLAINTIFF'S MOTION TO STRIKE IMPERTINENT AND SCANDALOUS
MATTER

Plaintiff, by her attorneys, hereby moves this Court pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure to strike as impertinent and scandalous the characterization of her factual submission as "dreck" on page 11 of Defendant's Rule 56.1 Supplemental Statement of Disputed Facts, a copy of which is attached hereto as Exhibit A.

As grounds therefore, plaintiff states: For almost four years now, plaintiff and her attorneys have been subjected to the constant kvetching by defendant's counsel, who have made a big tsimmes about the quantity and quality of plaintiff's responses to discovery requests. This has been the source of much tsuris among plaintiff's counsel and a gontzeh megillah for the Court. Now, that plaintiff's counsel has, after much time and effort, provided defendants with a specific and comprehensive statement of plaintiff's claims and the factual basis thereof, defendant's counsel have the chutzpah to call it "dreck" and to urge the Court to ignore it.

Plaintiff moves that this language be stricken for several reasons. First, we think it is impertinent to refer to the work of a fellow member of the bar of this Court with the Yiddish term "dreck" as it would be to use "the sibilant four-letter English word for excrement." (Rosten, The Joys of Yiddish, Simon &Schuster, New York, 1968, p. 103). Second, defendants are in no position to deprecate plaintiff's counsel in view of the chozzerai which they have filed over the course of this litigation.

Finally, since not all of plaintiff's lawyers are yeshiva buchers, defendants should not have assumed that they would all be conversant in Yiddish.

WHEREFORE, plaintiff prays that the Court puts an end to this mishegoss.

We enjoyed reading it, but the story ultimately ended poorly for the plaintiff, against whom a summary judgment was rendered (Santiago v. Sherwin-Williams Co. (D.Mass. 1992) 794 F.Supp. 29) and affirmed Santiago v. Sherwin-Williams Co. (1st Cir. 1993) 3 F.3d 546.

Back Up and Running

Typepad seems to have gotten its act together again, so we're back in business.

We're delighted to let you know that we've just released some fixes that are specific to the new Compose editor. While the majority of TypePad members who are using the new editor have experienced no problems at all, we know that some of you have experienced some exceptionally frustrating errors. Our Support and Engineering teams have been working really hard, burning the midnight oil to address these issues and are excited to see them launched today. In addition to these fixes and those we released on June 11th, some additional fixes are forthcoming and we will keep you posted as we release them. All members who have the new Compose editor should receive an email giving details on the most recent fixes. You can also read about known issues and fixes on the Known Issues Blog. A huge thank you to everyone who has sent in feedback to our Support team and to our CEO Chris Alden. Our teams have reached out to many of you one on one and the information you've shared with us has been a tremendous help in our troubleshooting and beyond.

The new compose editor is still really slow, however, but we've been able to resolve that problem, somewhat pathetically, by using notepad.exe as our primary post composer.

Blame Typepad

We know from your emails that some of you check this blog more than once a day. If you are one of those, you've undoubtedly noticed some strange things afoot at the California Wage Law blog lately. Here's what happened.

A few weeks ago, Typepad introduced a new post editor. As a post author, I hate, hate, hate it. It makes formatting easier and it allows more flexibility regarding use of links, embedded photos and a host of other features, but it slows the process way down, causing the sort of "lag" that gamers experience when they overload their antiquated sysems with the latest MMORGs. Not all Typepad blogs have it. Apparently, ours was one which was randomly assigned the new post editor. We were made involuntary beta testers.

Along with the release of the new post editor, Typepad brought out a bug regarding the posting status of particularly posts. It has long been the case that, when we write a new post, we don't have to publish it immediately. We can publish it immediately, or we can save it for later, either as a "draft", which is not supposed to be published, or as a post to be published at a particular date and time, which we often do. For example, I often come across wage & hour related information which isn't any more or less relevant if weeks pass before I publish it. I'll save those so that the blog can continue to provide content even if Mark and I are in trial, or I'm out having (another) surgery, and Mark is slammed trying to do the work of two lawyers.

This month, Typepad has been very unreliable regarding drafts and future posts. Several times, when we wanted to delay a post for a few days, we would change the posting status to some date way in the future, i.e., July 25, so we could edit the post or decide a week later whether or not to use it. Typepad suddenly began to disregard these changes, and published everything on the date we originally told it to publish, so you might have looked at the blog and seen a post dated a month in the future, and then watched it disappear a few hours later.

Last week, every single post that was published was a post that was supposed to be published this week, while I am supposed to be out recovering from surgery. The more timely content sits in "draft" stage, and we'll sort that out as we have time this week. The post you are reading right now was originally a post about the DOL's wage recoveries. We edited the post a bit, and to our dismay, both versions were published, even though we changed the original post to unpublished status. Typepad tells me that "Our engineers are aware of this issue, and a fix is being released within the week. Once this fix goes live, you should no longer experience this issue."

I hope they are right, because if it doesn't get fixed, I'm going to have to move the blog to another host service. --Mike

Is The Department of Labor Holding Back Wages for You?

The Wage and Hour Division (WHD) administers and enforces some of our nation’s most comprehensive labor laws. Through enforcement and other administrative actions, WHD recovers back wages on behalf of employees. WHD makes every effort to locate and notify all employees due back wages. If WHD is unsuccessful in locating an employee, the back wages are held for three years before being sent to the U.S. Treasury.

If you are an employee, and you think that the Department of Labor, Wage & Hour Division might have sued one of your former employers and recovered money for you and a plantload of your co-workers, you can find out for sure at the department's website:

https://www.dol-esa.gov/emploc/

We didn't check for ourselves, since we know that Walsh & Walsh, P.C.'s employees don't have any claims.

Average DOL Wage Recoveries

According to at least one reported case, statistical data set forth on the United States Department of Labor Web site (we'll post the link if we can find it) indicates that the wage and hour division of the labor department collected $212,537,544 in back wages for 342,358 employees for fiscal year 2003, for an average award of $620.80 per employee.

PAGA Deadlines

This year, we've seen some interesting law and motion disputes over amending pleadings to include PAGA claims, and the timing that affects those pleadings and amendments. Once you give your PAGA notice to the Labor & Workforce Development Agency, Labor Code § 2699.3(a)(2)(A) gives the agency 33 days to decide whether to investigate. If they timely inform an employee that they are going to investigate, they have 120 days to do so. Labor Code § 2699.3(a)(2)(B). If they do nothing by the expiration of 158 days from your letter, you can amend your complaint. Labor Code § 2699.3(a)(2)(B). The amendment is as a matter of right if within 60 days of the date you obtained the right to proceed. Labor Code § 2699.3(a)(2)(C) ["Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part." (emphasis added)].

Quote of the Day: Wage & Hour Certification Hearings

Retired Alameda County Superior Court Judge Ronald Sabraw says that motions for class certification are becoming so complex that preparing for one has become almost like preparing for trial both in terms of discovery and presentation of evidence.

"The days of having a 30-minute class certification hearing are long gone."

It depends upon the case, of course. We had one last year that was slightly under 30 minutes. We had another that fit well within Judge Sabraw's description.

Waiting Time Penalties on Meal Period Pay

We keep seeing defense motions to strike waiting time penalties from pleadings involving meal period violations. We keep seeing them denied. So far, there is little express authority confirming that the holding in Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 makes such penalty wages available to a meal period pay claimant.

The DLSE's position is as follows:

The Murphy decision, by implication, allows employees who are owed LC 226.7 pay at time of termination, to recover waiting time penalties pursuant to LC 203 if all final wages are not paid in accordance with LC 201/202. The Court also determined that reporting time pay and split shift premiums are wages, therefore, they would also be subject to LC 203 penalties (and interest).

In each case, the plaintiffs cite Murphy, while the defendants boldly assert and attempt to plausibly maintain that meal period wages are different from ordinary wages, marking a distinction relevant to the right to recover waiting time penalties.

Pro-Ration of Minimum Salary for Part-Time Exempt Employees Disallowed

The U.S. Department of Labor issued an opinion letter earlier this year, rejecting the concept of paying pro-rated salaries for part-time employees performing exempt work. The employer had asked whether it could pro-rate the minimum allowable salary of an exempt employee, paying just $15,000 per year, to reflect a 20 hour per week part-time status. The DOL said it could not. The minimum salary for a properly classified exempt employees is $23,660 annually, which works out to $455 per week, under federal law (California's minimum salaries are higher). Even a part-time "exempt" employee must be paid this amount. The employer's only alternatives are to pay the full $23,660 to the part-time employee, or to pay the employee on an hourly basis, with overtime as applicable.

Happy Memorial Day

No real posts today. Hopefully, typepad won't eat any more posts this week.

Paul Hastings Associate Separation and Release Agreement Gets Shared

Drifting a bit off topic today, if you haven't seen this departure memo from an associate leaving the San Francisco office of Paul Hastings, you've missed quite a story. She complains that the firm gave her great reviews until it decided to start a round of layoffs, and she blasts the firm for blindsiding her right after she suffered a miscarriage. Paul Hastings denies that it is laying off associates. Whether or not you enjoy legal soap operas, the original story, broken by Above the Law, is interesting because, inter alia, it includes a copy of the standard Paul Hastings separation agreement.

The Search for Intelligent Life in the Blogosphere

This month's edition of the California Lawyer includes a pretty good article on legal blogs (The Search for Intelligent Life in the Blogosphere). We were not among the intelligent life they found, but we enjoyed the article nonetheless.

Audio Conference on FLSA Overtime Rules: Critical Issues in Employee Classification

Don't have time to attend MCLE seminars? One alternative is to attend audio conferences. National Constitution Center Audio Conferences is offering a 60-minute audio conference next month on the subject of "FLSA Overtime Rules: Critical Issues in Employee Classification." The conference will take place tomorrow, Thursday, May 15, 2008 10:00-11:00 a.m. PDT. The cost of the conference is $199 (plus $65 if you are taking the course for MCLE credits, apparently good in all states but Kansas and Ohio). You can register and get more information at http://www.constitutionconferences.com/main.asp?G=1&E=1371. Their web page describes the conference in more detail, but here's their hook:

As more practitioners are finding themselves in the wage and hour arena, it is important that we keep apprised of recent developments and changes in the law. This 60-minute audio conference will provide you and your staff with the knowledge you need to comply with the overtime regulations – including the tests to apply to properly classify your employees and determine who does and doesn’t qualify for overtime.

We've never tried these conferences, and they aren't giving us a dime (or anything else, for that matter) for mentioning them here, so if anyone gives them a try, please leave a comment and let us know what you thought. They offer a guarantee of "a full refund if not satisfied from now until 7 days after the event."

Easing the Pace

Mark's on vacation this week, so the two-a-day posting we've maintained since April is going to stop. Have y'all taken your vacations yet this year? Do not eschew vacations. They are not just luxuries. They are necessities to keep you sane.

New Littler Report on Wage and Hour Compliance

Some of the best ideas for the plaintiff's bar have come from defense lawyers. The latest example: Littler Mendelson has published an interesting report entitled Total Wage and Hour Compliance: An Initiative to End the Wage and Hour Class Action War. You can download the report directly from the firm's website. It isn't just a learning tool for employers. It also provides considerable food for thought if you are representing employees, and that's all we'll say about it.

Know Of Any Other Good Blogs?

We've removed a few links from the side column. If you had a blog we listed, but haven't posted to it since 2007, or posted fewer than five times in the last twelve months, you got removed. As always, we're interested in posting links to other good legal blogs, and particularly employment-related blogs. This week we added four legal blogs, none of which are employment blogs per se.

• The California Blog of Appeal
• ClassActionBlawg.com
• Overlawyered
• Class Action Defense Blog

If you know of any we should include, especially if it is yours, leave a comment or drop us an email.

Happy May Day

While here in California, May 1 (which was also Law Day) was the day for friends of labor to abandon work and school to march in the streets, in many places, they do all that on another May Day, which falls today, May 5. We will instead celebrate Mexico's 1862 victory over the French (which at the time, was thought impressive) by tossing back margaritas at our local Mexican eatery.

Feeling Lucky?

Happy Cinco de Mayo. We might celebrate with a happy hour margarita at one of many restaurant chains where we represented classes or other large groups of employees in wage and hour claims. But that's not the only thing making us happy today. Today's a lucky day of sorts for us.

Google digs blogs. Go to Google and do a search for wage law, and click the "I'm feeling lucky" button.

We'll see you back here in a moment.

For the first time, we've skipped ahead of the U.S. Department of Labor on the Google result page for this and a few other wage & hour related searches. We're still third fourth for searches on "wage and hour law" however. We now have a real B.L.O.G. (best listing on Google). Soon, we will have the domain name www.CaliforniaWageLaw.com publishing this blog, too, and we'll be even easier to find.

Breaking News: U.S. District Court in San Diego Closed Monday Due to Bombing

At 1:40 this morning, a pipe bomb exploded at the Edward J. Schwartz Federal Courthouse in downtown San Diego. A significant amount of damage occurred, but no structural damage was found and no one was injured. The bombing will cause all proceedings tomorrow to be continued. The Southern District has issued the following notice:

* * * PUBLIC NOTICE * * *

Federal Court Cancelled May 5th

May 4, 2008 - The United States federal courthouse in the Southern District of California, located in downtown San Diego, will be closed to the public on Monday, May 5th, 2008 due to damage caused by a bomb explosion at the courthouse entrance. All federal court activity in San Diego has been cancelled. The U.S Courthouse in El Centro, California will remain open. The Clerk's Office for the federal court will be open for business on Monday.

Jurors that are scheduled for federal court jury duty on Monday, May 5th are asked not to report as required. Jurors should call 800-998-9035 after 6:00 PM on Monday evening to check the status of their jury duty for Tuesday, May 6th, 2008.

All federal court employees are required to report to work as usual. All employees must use the Federal Building entrance at 880 Front Street.

Paralegal Fees

It shouldn't be too much longer before we hear from the SCOTUS on Richlin Security Service v. Chertoff (US 06-1717) regarding the ability to recovery all of your paralegal billings when you win in a case where the prevailing party gets attorney's fees. The unresolved issue among the circuits is whether paralegal services can be recovered at the market rate, or just at the level of actual cost. The case was argued on March 19, 2008.