Wage Law

Admonished Orange County Judge Resigns

After several public admonishments, Superior Court Judge James M. Brooks has agreed to resign effective April 30, 2008. Earlier this month, the state Commission on Judicial Performance publicly admonished Brooks for failing to uphold order and decorum in his courtroom during a 2005 employee-discrimination case (Haluck vs. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994) in which his judicial misconduct resulted in the reversal of a defense verdict after a jury trial. Brooks used hand-lettered signs to overrule objections and encouraged the defense attorney in such tactics as hummed the theme to "The Twilight Zone” during the plaintiff's case. We previously weighed in on the case and the initial reaction to it in posts here and here.

New Blawg on Complex Litigation

We've added another good new legal blog to the blogroll: thecomplexlitigator.com. Check it out.

Crackberries: The next big overtime wave

As this interesting article suggests, there is always a new wage & hour issue coming along. The WSJ Law Blog is asking whether Blackberrys and other PDAs may result in a new wave of wage-and-hour litigation. The potential for overtime claims is obvious, as management lawyers have noted:

“We’ll see it; it’s only a matter of time,” said Jeremy Roth, a lawyer in the San Diego office of Littler Mendelson. Roth said he has cautioned several clients about the issue in the last year, advising them to get policies in place. Added Roth: “Before there was at least an argument that no, the employee is not being truthful when they say, ‘I did all this work after hours.’ But now, that swearing contest is taken out of the mix.”

As the article also demonstrates, the creative ideas often come from defense firms, eager to find new kinds of cases to defend. [Hat tip: LaborProf Blog]

CELA Wage & Hour Seminar

The California Employment Lawyers Association, a statewide organization of attorneys representing employees in employment matters, is holding its 4th Annual Advanced Wage & Hour Seminar. It is open to members and non-members alike. The seminar will be held Friday, May 9, 2008, from 9:00 a.m. to 6:30 p.m. at the Hilton Oakland Airport. The full-day advanced seminar will address discovery in wage and hour class actions, as well as wage and hour litigation in the transportation industries and precertification conduct and communications.  The seminar also will include an update on new legislation and case law pertaining to individual and class action wage and hour cases.  The seminar will qualify for 6 hours MCLE credit.

Happy Cesar Chavez Day

We're taking the day off.

FLSA Opt-In Rates

What are typical opt-in rates for FLSA collective actions? We've heard the figure 23% quite a few times, but we can't find any empirical data to support it. A December 2007 article published by the American Association for Justice reported that

Attorneys have found that the opt-in rate is usually low—less than 30 percent of the affected pool of workers.

Another article published last year by the American Bar Association reported that

Anecdotally, practitioners generally estimate that five to twenty percent of eligible plaintiffs will opt-in to a traditional opt-in case, while nearly all of the eligible employees will remain in an opt-out suit. ... [but] the low opt-in rate is not true, however, when FLSA claims are broughton behalf of a unionized workforce. Mullins v. City of New York (U.S. District Court for the Southern District of New York, Civil Action No. 1:04-cv-2979) [90% rate]; Abbey v. United States (U.S. Court of Federal Claims, Civil Action No. 07-272C) [70%].

Another article published in 2006 by defense firm Nixon Peabody LLP claimed that

Typically, the opt-in rate for these collective actions is between 15 and 30 percent.

Does anyone know of a solid empirical study that quantified the opt-in rates for collective actions over any recent period?

Consequences of Misclassification

Q: Suppose the Labor Commissioner or a judge determine that my contractors should have been classified as employees, what are the consequences?
A: There are many, but these are probably the most important:

• Stop orders and penalty assessments pursuant to Labor Code § 3710.1;
• Liability for overtime premium, meal period pay, and other remedies available to employees under the Labor Code and Industrial Welfare Commission Orders;
• Exposure for tort liability for injuries suffered by employees when workers compensation insurance is not secured (Labor Code § 3706);
• Exposure for unfair business practices (Business & Professions Code § 17200);
• Tax liability and penalties;
• Criminal liability (Labor Code § 3700.5).

When in doubt, treat them as employees.

Is Your E-Mail To Your Client Not Privileged?

Apparently, there are more than a few employers who are mining their email archives to search for email communications between employees and former employees and the attorneys representing them in claims against the employer. One judge in New York issued a ruling last year that such communications are not protected by attorney-client privilege. The case is Scott v. Beth Israel Medical Center, Inc. You can read the order here. We haven't researched whether any California cases are on point. We're just passing it along.

If You'd Rather Use a Urine Bag Than Take a Real Bathroom Break

then Qwest might be the right fit for you, when looking for your next place of employment.

Happy [Belated] Anniversary, Justice Thomas

Do you remember the last time U.S. Supreme Court Justice Clarence Thomas spoke? We heard him talk about football during the USC - Nebraska game last September (which we fondly recall as "departing of the Red Sea"), but when was the last time Justice Thomas spoke up during session? It was in a death penalty case heard on February 22, 2006. That makes two years and 142 cases without an utterance by Justice Thomas.

One might suggest that Justice Thomas is strictly construing and personally adhering to the prohibitions of 40 U.S.C. 6134, which makes it "unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds." But that's probably not it. When he started his dissent earlier this month in Preston v. Ferrer (2008) __ U.S. __, with the words "as I have stated on many previous occasions," we chuckled just a little, but not nearly as much as our liberal friends chuckled when we praised Justice Thomas's dissent in that case and suggested that we would love to see at least four more justices just like him.

The dissent, for what it's worth, read as follows:

JUSTICE THOMAS, dissenting. As I have stated on many previous occasions, I believe that the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq. (2000 ed. and Supp. V), does not apply to proceedings in state courts. See Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 285–297 (1995) (THOMAS, J., dissenting); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 449 (2006) (same); Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 460 (2003) (same); Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 689 (1996) (same).Thus, in state -court proceedings, the FAA cannot displace a state law that delays arbitration until administrative proceedings are completed. Accordingly, I would affirm the judgment of the Court of Appeals.

We'd love to hear more from him on these matters, although it may become moot if the Arbitration Fairness Act of 2008 passes.

Where to Begin?

About a month ago, the blogging here ground to a halt. Many of you already know why. In November and December, I ran into a string of misfortunes that included the loss of a family member and a car accident. When my pickup truck broke down while my bent-fendered regular ride was in the shop, I remarked to a friend that these things tended to come in threes, so perhaps my misfortunes would be about over for the time being. He responded, "I don't think the truck being at the repair shop for a day compares with the other two." Curse him for being right. A short time later, I became sick and, to make a long story short, it turned out to be my appendix. I didn't much like the idea of getting an IV, much less undergoing surgery, but apparently, the only real alternative is to let the thing burst and kill you. So off to surgery I went.

The surgery caused me to miss the Rose Bowl, and forced me to cancel a flight to Maui for a week-long family vacation scheduled to precede the mediation there of a substantial wage and hour case. However, after reading about how Grant Hill was planning to be back on the court just two weeks after his appendectomy, and concluding that my work was decidely less strenuous than his, I made plans to try to get back to work quickly. And by "get back to work," I mean, for starters, traveling to Maui for the mediation and scheduling appointments immediately upon my return. It was a mistake in judgment. Not only was the trip extremely painful and unpleasant, but once I got home, complications set in. The next thing I knew, in addition to the ordinary recovery difficulties, like constant and severe pain, I was on a regimen of nasty medications that left me in a constant fog.

By the middle of January, even with Mark's help, the blogging had to take a back seat to, well, just about everything else. But that was then. I've now recovered, not as quickly as the aforementioned world-class athlete, but just as completely. More importantly, I'm beginning to conquer the two-foot-tall beast of papers that buried my in-basket. I managed to get continuances for all my trials set in January, with the stipulation of all but one opposing counsel (and I'm seriously considering making the one miserable exception famous for her refusal), and a normal schedule of paper-pushing, deposing, mediating and trying cases is now underway. Next up: the return to blogging. I'm going to start today with something on a lighter note, and tomorrow, we'll start posting about all the substantive developments that have arisen while I was off recuperating.

--Mike

Blogging to Resume in February

As much as we like to post something every business day, it has been impossible in January. Normally posting will resume soon, probably on Monday. Sooner if possible.

High Court Wage Hour Rulings Hurtful to Employers

That's the actual headline of this San Fernando Valley Business Journal article. It makes it sound like forcing employers to follow the damn law is deeply offensive to corporate folks. Perhaps we've come full circle, and now even the corporate moguls get to label themselves as victims.

Average Billing Rates

According to recent article in the National Law Journal, last year, 119 of the nation's 300 largest law firms provided billing rate information for the NLJ's annual survey. Among firms reporting average and median rates in both 2006 and 2007, average firmwide billing rates increased from $321 to $348 per hour last year, with the median rate jumping from $324 to $347 per hour.

Happy New Year, 2008!

We're at the Rose Bowl today. Fight On! Happy New Year!

Merry Christmas

We may or may not post anything of substance between now and the New Year. We hope you all have a joyful holiday season.

Holiday Closure

Riverside County Superior Court will be closed December 31.

No One Is Exempt

from the spector of wage and hour lawsuits, that is. Law.com reported last month that one of California's most successful wage and hour firms is being sued for claims arising out of an alleged profit-sharing bonus plan. The plaintiff, attorney Carolyn Burton, alleges that her former employer, The Furth Firm LLP, which tried and won a $172 million case against Wal-Mart in 2005, induced her to accept a below-market salary in exchange for profit-sharing bonuses amounting to 3 to 5 percent of the firm's annual profits, then failed to pay the bonuses. Burton now works for Glynn & Finley, LLP, a PMS spinoff, where she confirmed her compensation deal in writing, we hope. We know of several plaintiff-side firms that use such a business model. We've never heard of one giving a guaranteed profit level, however.

Federal Court Closures for Holidays

All state and federal courts will be closed on Christmas and New Year's Day. In federal court, Christmas Eve and New Year's Eve schedules vary from district to district:

• The Northern District will be closed on Christmas Eve and New Year's Eve, except for the Santa Rosa Division.
• The Eastern District will be closed on Christmas Eve and New Year's Eve.
• The Central District will be closed on Christmas Eve and New Year's Eve, except for emergency filings.
• The Southern District will be open on Christmas Eve and New Year's Eve, but will close at noon each day.

We don't know of any easy way to check the holiday schedules of each Superior Court. Los Angeles looks like they plan to work.

Central District E-Filing Goes Live and Mandatory January 1

Starting January 1, 2008, every attorney who files a new civil case in the Central District of California, or who is counsel of record on existing civil cases in the Central District of California, will be required to register for and use the new e-filing system under the court's CM/ECF program. The system is quite similar to the CM/ECF systems already in use in the Northern District, Eastern District and Southern District, but training is mandatory even if you understand the other systems. Sanctions will be issued for counsel who delay training and registration (some departments will probably be more likely than others to issue sanctions).

There are two ways to train: (i) online computer-based training, which isn't recommended for attorneys who are unfamiliar with CM/ECF filing; and (ii) live training at the courthouse. The live training will explain the process in painstaking detail (including how to right-click on files, how to sort folders by file size and other simple computer tasks), which is great for the tech have-nots, but if you understand computers and use technology on a regular basis, you might find it a bit tedious, as we did. On the bright side, the live training also gives you three MCLE hours, and it's free, so if you are in the upcoming MCLE compliance group and you need a few hours, give it a go.

As the live date approaches, the training sessions will fill up, but even if the session you want to attend is full, show up and see if you can take one of the many no-show seats. They will usually be able to accommodate several walk-ups.

For further details, check out the court's CM/ECF home page at
http://support.cacd.uscourts.gov/

Holy Equal Pay, Batman!

The Department of Labor once used Batgirl, Batman & Robin to promote equal pay statutes.

Happy Thanksgiving

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.

Insurance For Wage Claims

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.

On Demand Video: Supreme Court Arguments

Two recent California Supreme Court oral arguments 11/5/2007 (Sacramento) and 10/2/2007 (Special Educational Session From Santa Rosa) are available on video at http://www.calchannel.com.

Our Reading Level

Over at criticsrant.com, they have a system to rate a blog's reading level, which I assume means how well you need to be able to read in order to comprehend the whole thing. We rated:

The criteria aren't explained well, so this might mean that we don't write in clear concise English and you have to be fairly intelligent to understand us. Perhaps it just means that we write well, without a bunch of f-bombs and references to bodily functions and likes and you knows. Your guess is as good as ours.

When you plug in your website address and it rates your site, it offers you some html code to make it easy to post the results on your own blog, or myspace page or anywhere else html code can be displayed. The html code has a little blurb in it that markets a cash advance website. Some of the blogs we saw that displayed elementary school levels in their posts still had the little cash advance link. You don't see it here or on the other genius level blogs. Coincidence?

NYC Wage and Hour Seminar

The International Quality and Productivity Center will be hosting a seminar on Wage & Hour Claims (Implementing Effective Strategies for Dispute Resolutions and Class Actions) in New York City from November 28 to November 30. Depending upon how much you want to see, and whether or not you are in-house counsel, the rates vary from $549 to $3,397. The list of speakers is impressive, and since we are readying class action complaints against at least one of the companies whose in-house counsel will be speaking, we're contemplating attending. If you do defense work, or if you want an excuse to write off a trip to New York, you might want to check it out.

New Widgets

We've had quite a few people ask whether they can subscribe by email or do searches within the Wage Law blog. Until now, no. Now, you can. Let us know if you spot any glitches.

Happy Veteran's Day

All state and federal courts are closed today in observance of Veteran's Day, which was actually yesterday.

The Best Law Blogs

Blawg Review has taken up a "top law blogs" meme. We got tagged a few weeks ago by by Kimberly A. Kralowec of The UCL Practitioner, who had been named by J. Craig Williams of May it Please the Court. We love both of their blogs and read them regularly (they are two of the three longest standing links on our sidebar), and we were pleased and appreciative of Kim's endorsement of California Wage Law. Like we mentioned earlier this week, blogging time was impacted last month by a variety of issues, so we're trying to catch up on all the interesting news and developments in wage and hour law, but we'll end the week with this. Excluding The UCL Practitioner and May it Please the Court, which would both be on our list of ten favorites, we suggest checking out the following ten blogs, in alphabetical order:

• Above The Law
• CalBizLit
• Class Action Defense Blog
• How Appealing
• Jottings by an Employment Lawyer
• Labor Employment Law Blog
• SCOTUS blog
• Storm's Employment Law
• The Volokh Conspiracy
• What's New in Employment Law

Compensable Time Under the FLSA

The Fair Labor Standards Act (FLSA) requires that covered non-exempt employees receive at least the minimum wage and at least one and one-half times their regular rates of pay for hours worked over 40 in a workweek. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work. The amount employees should receive under the FLSA cannot be determined without knowing the number of hours worked. The materials listed below provide general information concerning what constitutes compensable time under the FLSA.

Authorizing Legislation
Fair Labor Standards Act

Field Operation Handbook
FOH Chapter 31: Hours Worked
FOH Chapter 32: Overtime

E-Laws Advisor
ELaws FLSA Hours Worked Advisor
ELaws FLSA Hours Worked Advisor

WHD Guides and Fact Sheets
Handy Reference Guide
Basic information sheet

Fact Sheet 1: Construction
Fact Sheet 2: Restaurants
Fact Sheet 3: Professional Offices
Fact Sheet 4: Security Guard/Maintenance Service Industry
Fact Sheet 6: Retail Industry
Fact Sheet 9: Manufacturing Establishments
Fact Sheet 10: Wholesale and warehouse industries
Fact Sheet 22: Hours Worked Under FLSA
Fact Sheet 23: Overtime Pay Requirements
Fact Sheet 24: Homeworkers under FLSA
Fact Sheet 31: Nursing Care Facilities
Fact Sheet 33: Residential Care Facilities
Fact Sheet 45: Hotel and Motel
Fact Sheet 46: Day Care
Fact Sheet 53: Health Care Industry and Hours Worked

Frequently Asked Questions
FAQs- Wages, Pay and Benefits

Wage & Hour Litigation Conference, Los Angeles, December 6 - 7, 2007

If your MCLE compliance group is coming due in February and you're still short on hours, Bridgeport Continuing Education is presenting a 9.5 hour two-day seminar on Wage & Hour litigation in December at the Sheraton Los Angeles Downtown Hotel. The program is designed for attorneys and corporate counsel as well as risk and claims managers and will incorporate both plaintiff and defense perspectives. We will be kicking off the presentation with an hour on recent developments, including the Gentry and Kenneth Cole cases, probably the Brinker case, and anything else interesting that comes our wage in the next 90 days.

Topics include: Wage & Hour Case Update, Class Action & Individual Wage & Hour Actions, Preparing for and Excelling in Mediations, Insurance Coverage in Wage & Hour and Class Actions, Class Certification, Dual filed Actions, Claims Administration, The Intricacies of Wage & Hour Cases in California, Discovery in Wage & Hour Actions, Meal & Break Period Case Analysis, Overtime Case Analysis, Mandatory Class-wide Arbitration Agreements.

Faculty: Susan Abitanta of the Quisenberry Law Firm, Kalley Aman of Buchalter Nemer, Arthur Silbergeld of Proskauer Rose , Robert Wallen of Pillsbury Winthrop Shaw Pittman, Phyllis W. Cheng of Littler Mendelson, Timothy M. Freudenberger of Carlton DiSante & Freudenberger, Michael Loeb of JAMS, Elizabeth Murphy of Buchalter Nemer, Keith Watts of Musick Peeler & Garrett, William A. Daniels of Schwartz Daniels & Bradley, Steven B. Katz of Thelen Reid Brown Raysman & Steiner, Katherine Odenbreit of the Class Action Litigation Group and Michael Walsh of Walsh & Walsh.

Seminar Details
Location: The Sheraton Los Angeles Downtown Hotel, 711 S. Hope Street
Time: (day 1) 9:00 a.m. to 4:30 p.m. (day 2) 9:00 - 12:30
MCLE: approved for 9.5 hrs of MCLE.
Register online at: http://www.reconferences.com
Register by phone at: 818-783-7156
Register by fax or mail: (818) 827-3338 or 13636 Ventura Blvd. #215 Sherman Oaks, CA 91423

Interview With an Honest Boss

We are going to the USC - Notre Dame this weekend, so we aren't going to work particularly long or hard today, and that includes the blogging regimen. So, for your amusement, we offer you this, for when you care enough to tell the very honest truth. From Hallmark: Interview With an Honest Boss.

Hourly Fees With a Comma?

A recent article in the Wall Street Journal says that attorneys' hourly fees are crossing the $1,000 for the first time. New York's Simpson Thacher & Bartlett LLP was set to raise its top rate to more than $1,000 this month. New York's Cadwalader, Wickersham & Taft LLP did so earlier this year. Large firm billable rates have climbed an average of 6% to 7% annually since 2000. Recently, we have had judges in Los Angeles County Superior Court approving hourly rates on class action work in the $450-550 per hour range for 10-20 year attorneys. We have yet to see a base rate of $1,000 per hour sought or approved in the wage and hour class action context.

Old Wage Orders

If anyone has a copy of the 1976 IWC Wage Orders, we would like to get our hands on one.

Tell Us How You Really Feel

We found a new and unique California wage and hour blog, calling itself "California's Division of Labor Standards Enforcement has no labor standards of their own!" The blog, found at http://nolaborstandards.blogspot.com, describes itself as follows:

An unofficial site highlighting inefficient & incompetent service that Californians receive as a result of DLSE decisions, actions, and service. The opinions here are the authors and should not be read by anyone, including the author.

We ignored the warning and amused ourselves for about five minutes.

Happy Columbus Day

We hope you are all enjoying your day off work, or at least out of court. This marks the fourth and final day of the year that reminds us that summer is over, the first three being the first day our kids go back to school, Labor Day, and the Vernal Equinox. Why does this day further mark the passing of summer? Traditionally, it is the day after which the U.S. National Park Service removes the hiking cables from Half Dome in Yosemite.

Half a Million Eyes

We began writing this blog on December 15, 2004. We got our 100,000th hit in 2006; our 150,000th hit on January 30, 2007. This morning, we crossed the 250,000 mark. Lately, we've been getting close to 1,000 page views a day. Frankly, we never thought that many people would be paying attention. It says a lot about how hot this area of law has become.

On Calendar Tomorrow, Fashion Valley Mall

Wage and hour issues are often related to collective bargaining issues, though most wage and hour lawyers do not routinely handle NLRA matters. One of the cases on tomorrow's Supreme Court calendar is an interesting matter arising from a question posed in federal court. In Fashion Valley Mall, L.L.C. v. National Labor Relations Board, S144753, the issue is:

Request under California Rules of Court, rule 29.8, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the District of Columbia Circuit. This case presents the following issue: Under California law may Fashion Valley maintain and enforce against the Union its Rule 5.6.2, which allows individuals and organizations to engage in expressive activities on its premises with a permit if they agree to abide by its rules and regulations that prohibit urging consumers to boycott any of the mall's tenants?

Because of the unusual Special Outreach Session this week, in which the Supreme Court is meeting in Santa Rosa, at the Jackson Theater, Sonoma Country Day School, there is a wealth of information on the court's website regarding this case, including:

S144753	Fashion Valley Mall, L.L.C. v. National Labor Relations Board
Expanded background summary (PDF, 10 KB) Case information, including Supreme Court docket entries No Court of Appeal opinion; certified question from federal court Fashion Valley's opening brief (PDF, 1,655 KB) Fashion Valley's reply brief (PDF, 690 KB) (Intervener) Graphics Communications Council's answer brief (PDF, 1,373 KB)

If you've never sat in on a Supreme Court session, and you have the opportunity, we highly recommend trying it, even if you don't have a case on review.

Wage Wars

Check out the cover story for the current issue of Business Week, entitled: "Wage Wars — Workers from truck drivers to stockbrokers are winning huge overtime lawsuits." Related articles include "Labor Law Time Warp - America's New Deal-era overtime laws need updating, but the political will is lacking" (which we couldn't disagree with more), a snippet about settlements and pending cases entitled "No Industry is Immune" and a graphic entitled "The Rules Reflect Old Assumptions." The article is accompanied by a podcast that you can download and listen to when you have the time:
http://www.businessweek.com/mediacenter/qt/podcasts/cover_stories/covercast_09_20_07.mp3

(How many of you thought we would post a link about this weekend's 80th Annual State Bar Convention?)

ACI Wage & Hour Seminar

ACI is having its 5th National Forum on Wage & Hour Litigation next week.

We've attended this program in the past and found it worthwhile. For more information, go to www.AmericanConference.com/wageandhour.

CELA Seminar This Weekend

CELA'S 20th Annual Employment Law Conference is this weekend at the Fairmont Hotel in San Jose. If you are interested, check out the conference agenda. If you are a employees' lawyer in California and you haven't joined CELA yet, you should look into it.

CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FIGHTING FOR JUSTICE CELA'S 20th ANNUAL EMPLOYMENT LAW CONFERENCE SEPTEMBER 28 & 29, 2007 THE FAIRMONT HOTEL, SAN JOSE, CALIFORNIA Plus a September 27 Full Day Skills Seminar: Disability Discrimination Cases: From Intake Through Trial

COMPLETE CONFERENCE AGENDA

KEYNOTE SPEAKER Justice Cruz Reynoso Former Justice, California Supreme Court

CONFERENCE REGISTRATION FORM

Wage & Hour Litigation Conference San Francisco, September 27-28, 2007

Bridgeport Continuing Education is presenting a 9.5 hour two-day seminar on Wage & Hour litigation this week at the Stanford Court Hotel located at 905 California Street in San Francisco. The program is designed for attorneys and corporate counsel as well as risk and claims managers and will incorporate both plaintiff and defense perspectives.

Topics include: Wage & Hour Case Update, Class Action & Individual Wage & Hour Actions, Preparing for and Excelling in Mediations, Insurance Coverage in Wage & Hour and Class Actions, Class Certification, Dual filed Actions, Claims Administration, The Intricacies of Wage & Hour Cases in California, Discovery in Wage & Hour Actions, Meal & Break Period Case Analysis, Overtime Case Analysis, Mandatory Class-wide Arbitration Agreements.

PROGRAM AGENDA

Day One: 8:30  9:00  Registration & Continental Breakfast

9:00  9:05  Introduction and Program Overview

9:05  10:00 Case Law Update and Recent Developments
Timothy Long of Orrick

10:00 11:00 Class Certification Arguments: for and against
Andrew Livngston of Heller Ehrman - defense
Peter Rukin of Rukin, Hyland Doria & Tindall - plaintiff

11:10  12:15 Discovery Issues and Arguements
Paula Weber of Pillsbury Winthrop Shaw Pitman
Daniel J. McCoy of Fenwick and West

1:15 2:15 Overtime and Misclassification
Jim Finberg of Altshuler Berzon

2:30 3:30 Missed Meal and Rest Breaks
Brian Dixon of Littler Mendelson

3:30 4:30 The Wage & Hour Trial
Edward Wynne of the Wynne Law Firm
Matthew Righetti of the Righetti Law Firm

Day Two: 9:00  10:00 Does Insurance Cover Wage & Hour Claims?
Kirk Pasich of Dickstein Shapiro

10:00  11:00 Mediation and Settlement - Overcoming Pitfalls and Land Mines
Jeffrey Wohl of Paul Hastings Janofsky and Walker
Scott Cole of Scott Cole & Associates

11:15 - 12:15 Attorneys Fees in Wage and Hour Cases
Gerald G. Knapton of Ropers Majeski Kohn & Bentley

Seminar Details
Location: The Stanford Court Hotel, 905 California Street in San Francisco.
Time: (day 1) 9:00 a.m. to 4:30 p.m. (day 2) 9:00 - 12:15
MCLE: approved for 9.5 hrs of MCLE.
Register online at: http://www.reconferences.com
Register by phone at: 818-783-7156
Register by fax or mail: (818) 827-3338 or 13636 Ventura Blvd. #215 Sherman Oaks, CA 91423

If you aren't going to be at the CELA conference this weekend, this is another good choice.

2008 Calendar

The Supreme Court has released its 2008 oral argument and petition conference calendar.

How Hard Do Americans Work?

The Organization for Economic Cooperation and Development, in conjunction with Harris Interactive and Ipsos-Reid, calculates and publishes data on the number of hours people work from nation to nation. After deducting vacation, sick time, holidays and other days off, here is how they rank:

1. United States: 1824 hours (45.6 weeks)
2. Australia: 1816 hours (45.4 weeks)
3. Spain: 1799 hours (45 weeks)
4. Japan: 1789 hours (44.7 weeks)
5. Canada: 1751 hours (43.8 weeks)
6. Great Britain: 1669 hours (41.7 weeks)
7. Italy: 1585 hours (39.6 weeks)
8. Germany: 1443 hours (36.1 weeks)
9. France: 1441 hours (36 weeks)
10. Netherlands: 1357 hours (33.9 weeks)

Who gets the most vacation? The whining French, that's who. Here's how selected nations rank:

France: 39 days
Germany: 27 days
Netherlands: 25 days
Great Britain: 23 days
Canada: 20 days
United States: 12 days

Ouch.

Happy Labor Day

We'll be honoring the holiday by performing no labor today.

The Popularity of PAGA

According to a statement made in May 2007 by Anne Stevason, former Chief Counsel of the Division of Labor Standards Enforcement (DLSE), as of mid-2007, the DLSE has received PAGA (The Private Attorneys General Act of 2004) settlement checks ranging from $60 to $450,000, with a total of $750,000. Due to a federal lawsuit under Section 1983 (42 U.S.C. § 1983), the DLSE has adopted a policy against participating in lawsuits or negotiating the settlements, and they have yet to object to any settlements.

[Editor's Note: As originally posted, the disclosure by Anne Stevason did not read correctly, and the editor was literally out to sea (correcting his attorney work life balance) and unable to correct the error before the post was published.]

Attorney Work Life Balance Calculator

Still recalling the billable hour chase from those early years at Pettit & Martin, we offer you the Attorney Work Life Balance Calculator^TM. Do with it what you wish.

Bogus Attorney Rankings

There is a new attorney ranking system that is rapidly turning into more of an attorney rankling system. The system is called Avvo, and get be accessed for free at www.avvo.com. Avvo tries to affix a score of 1 to 10 on thousands of attorneys across the country. The ratings progress from extreme caution (1+), to strong caution (2+), to caution (3+), to concern (4+), average (5+), good (6+), very good (7+), excellent (8+) and superb (9+). Several lawyers we've never heard of scored 10s. Avvo's chief executive Mark Britton scored an 8.0. We originally scored a 6.6.

Some well-regarded and accomplished lawyers didn't fare as well: Harriet E. Miers and U.S. Solicitor General Paul Clement each scored a 6.1; Alberto Gonzales, U.S. attorney general, a 6.5; U.S. Supreme Court Justices Ruth Bader Ginsburg and Samuel Alito each got a 6.5, as did New York lawyer David Boies, who argued Bush v. Gore. Joe Jamail, the so-called King of Torts, got a 6.5. In fact, most lawyers got 6.5s, including a few dead guys and a few convicts, including Lynne Stewart. Convicted fraudster Ulysses Ware got a 6.3, the same as OJ's DNA specialist Barry Scheck, and Stanford Law professor Larry Lessig.

According to the Seattle Post-Intelligencer, a class action suit was filed in Seattle last month by a Seattle class-action attorney who wants to shut down the service because of inaccurate and misleading scores for attorneys that violate the Consumer Protection Act. A copy of the complaint can be found at http://blog.seattlepi.nwsource.com/venture/library/Avvo_Complaint_FINAL_secured1.pdf. It appears that Avvo is taking action in response to the lawsuit, but all we've noticed is that our ratings have been revised to a "no concern."

Request for Pay Raise Leads to Murder

Car dealerships are notoriously bad at complying with wage and hour laws, and the list of stories we have about dealers who found ways to minimize their payroll expenses and intimidate their employees is long and impressive. But Rolandas Milinavicius, the owner of an Atlanta area car dealership called RM Auto International, is clearly the worst of the lot. He murdered two employees who asked for pay raises. Milinavicius confessed to the murders, saying that the reason he committed them was because he was under a lot of stress.

RIP John C. McCarthy

One of the pioneers of California employment litigation, Mr. John C. McCarthy, passed away earlier this month after a battle with cancer and a life of great accomplishment. He was a founding member of the California Employment Lawyers Association. He was a graduation of USC and the UCLA law school, where he was a member of its first graduating class. He tried the first case in the nation to a jury verdict for wrongful termination in violation of public policy on the heels of the the California Supreme Court's landmark decision in Tameny v. ARCO, allowing such claims. In 1988, he won a $38 million verdict against the Las Vegas Hilton on behalf of 37 blackjack dealers. It was the largest civil verdict by a California lawyer that year. He was a tireless advocate and inspiration for all attorneys who stand up for the rights of employees.

A memorial service for John will be held on Saturday July 21, at 2:00 p.m., at Our Lady of the Assumption Catholic Church, 435 Berkeley Avenue, Claremont. To get there, take I-10 to Indian Hill Boulevard in Claremont. Exit and go north one mile, to Bonita Avenue. Turn left and continue to the first stop sign. The church is on the corner. Turn right on Berkeley and turn left into the parking lot.