Including PAGA Representative Action Waivers in Arbitration Agreements Post-Iskanian

After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements.  The answer to whether such waivers should be retained is not as straightforward as one might expect.

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Domino’s Delivers Key Ruling in Favor of Franchisors

The California Supreme Court recently issued an important victory for franchisors, finding that a franchisor does not stand in an employment or agency relationship with the franchisee and its employees for purposes of holding the franchisor vicariously liable.

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Seeking Credit for Deferred Commissions? You Might Get Declined

Last week, the California Supreme Court issued its decision in Peabody v. Time Warner Cable, Inc., deciding that employers may not apply commission payments to earlier pay periods for the purposes of establishing that an employee meets the minimum wage component under the commissioned employee exemption.

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Try, Try Again: The California Supreme Court Sends “Fundamentally Flawed” Duran Case Back to the Trial Court

Employment class action defendants in California who were hoping for an unequivocal statement that statistical sampling has no place in class actions are likely to be disappointed by today’s ruling in Duran v. U.S. Bank, N.A.  The California Supreme Court cautiously left all avenues to certification open, stating that a “[s]tatistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions.” (Emphasis added.)  But despair not!  The bulk of the opinion agreed with the court of appeal in finding the trial court’s methods “profoundly flawed,” recognized the “thorny” issues of proof that arise in misclassification cases, and reaffirmed a court’s obligation to consider the manageability of individual issues in certifying a class action.  The Court’s instructions to lower courts and litigants to determine – as an integral part of class certification – whether the case can be manageably tried are likely to aid employers in certification battles to come.     Read More

Further Down the Rabbit-Hole we go: California’s Troubling Treatment of Incentive-Based Compensation Systems

On July 17, 2013, the California Supreme Court denied review of the Second Appellate District’s decision in Gonzalez v. Downtown LA Motors, 2013 Cal. App. LEXIS 257 (Cal. App. 2d Dist. Mar. 6, 2013), which addressed minimum-wage requirements for piece-rate workers. The Court of Appeal held that the employer had to pay a separate hourly rate of at least minimum wage during work time when piece-rate employees are engaged in compensable activity that does not directly produce piece-rates.  Read More

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), a case of first impression on whether an employer can round an employee’s clocked time under California law. As a result, the Court of Appeal’s decision on the topic of employers’ rounding of employee time entries remains the law of the land in California.

On October 29, 2012, the California Court of Appeal confirmed that California law—like federal law—permits an employer to implement a policy rounding its employees’ recorded time so long as the policy is neutrally applied and does not systematically under-compensate employees for time worked.

The plaintiff in See’s Candy hoped to blunt this helpful precedent by asking the California Supreme Court to depublish the Court of Appeal’s ruling. However, thanks to the Supreme Court’s denial of the plaintiff’s petitions, employers and courts may continue to look to See’s Candy for guidance in the implementation of their timekeeping policies.

California Supreme Court Eliminates Damages in FEHA Discrimination Cases Where Employer Proves Mixed Motive Defense

Earlier this month, the California Supreme Court issued a ruling clarifying details of the “mixed-motive” defense applicable to discrimination claims under the California Fair Employment and Housing Act (“FEHA”). Harris v. City of Santa Monica, Case No. S181004 (Cal. Feb. 7, 2013). The Harris opinion is undoubtedly positive news for employers and provides much-needed guidance to trial courts in California handling mixed-motive cases (i.e., cases where legitimate and illegitimate factors motivated the decision). Read More

California Supreme Court to Clarify Standard of Proof in FEHA Discrimination Cases

Last month, the California Supreme Court heard oral arguments in a case that will clarify the standard of proof required for “mixed-motive” discrimination claims under the California Fair Housing and Employment Act (“FEHA”). Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In mixed-motive cases, both legitimate and illegitimate factors may have contributed to the employment action. Read More

Post-Brinker Class Certification Decisions – Where are they now?

Brinker continues to impact meal and rest period and off-the-clock cases as lower courts continue to grapple with the contours of its application.  Several cases at the appellate level were remanded after the California Supreme Court’s Brinker decision, and those cases are now working their way through the lower courts.  On our July 6, 2012 blog post, we identified three post-Brinker decisions denying class certification in meal period cases.  Below is a brief summary of post-Brinker decisions issued since our last update. Read More

California Supreme Court Confirms Work Product Protection for Attorney-Directed Investigations

The California Supreme Court recently clarified the extent of the attorney work product privilege under California law regarding recorded witness statements and the identities of witness interviewed by counsel, resolving a split of authority in the court of appeal. In Coito v. Superior Court, et al., Case No. S181712 (June 25, 2012), the court held that recorded witness statements—including statements made to an attorney’s agent at the direction of an attorney—are entitled to at least a qualified work product protection as a matter of law, and may be entitled to absolute protection upon proper showing. Furthermore, the court held that the identity of witnesses from whom counsel have obtained statements is not entitled to automatic work product protection as a matter of law, but may be entitled to the work product privilege upon proper showing. Read More