Posts from May 2010.

Claims asserting violations of California's wage and hour laws are frequently if not predominantly brought as class actions. One of the most hotly litigated issues in such cases is the issue of whether the case should or should not be certified as a class, which nearly always turns on whether common issues of law and fact predominate over individual issues. Two recent Court of Appeal decisions emphasizing that plaintiffs seeking class certification carry the burden of showing that liability can be established based on common proof (i.e., proof applicable to all of the class members) may be helpful to employers opposing class certification.

On May 26, 2010, in Adolph v. Coastal Auto Sales, Inc., the California Court of Appeal affirmed the trial court's decision to deny the petition of a car dealer to compel arbitration in accordance with the terms of an arbitration agreement contained in a purchase agreement. The Court Appeal held that the trial court correctly denied the petition on the ground the car dealer waived its right to arbitrate by failing to promptly invoke its right to arbitration and by raising the arbitration agreement only after suffering a litigation setback in the pending litigation.

On May 11, 2010, the Internal Revenue Service, Department of Labor, and Department of Health and Human Services issued interim final rules regarding the extension of health coverage for adult dependent children until the age of 26. The rules provide guidance on how the Affordable Care Act provision regarding extended coverage to adult dependents affects health insurance plans and employers.

The Los Angeles Times reports here that the Immigration and Customs Enforcement ("ICE") agency, the largest investigative agency in the Department of Homeland Security ("DHS") is conducting a crackdown on employers that knowingly hire or retain undocumented workers. Alleged violators are being prosecuted in Federal court by the United States Attorney.

On May 17, 2010, in Guinn v. County of San Bernardino, the California Court of Appeal held that a a county probation officer who did not pass his probationary period after being promoted to a supervisory position was not entitled under the Public Safety Officers Procedural Bill of Rights Act to an administrative appeal of the County's decision to return him to his prior position.

On May 20, 2010, the Department of Labor ("DOL") issued a final rule requiring federal contractors with prime contracts over $100,000 and federal subcontractors with subcontracts over $10,000 to post notices informing employees of certain rights under the National Labor Relations Act ("NLRA"). This new requirement takes effect June 21, 2010.

The required notice identifies employees' rights under the ...

Today, by a unanimous decision in Martinez v. Corky N. Combs, the California Supreme Court clarified the standard courts must use to determine who is liable as an "employer" for violations of wage and hour laws embodied in Industrial Welfare Commission ("IWC") Wage Orders, including claims for unpaid or underpaid wages.We think the decision is generally favorable for employers because the Supreme Court expressly rejected on the facts before it a number of theories of liability plaintiffs sometimes assert when attempting to hold liable for wage and hour claims persons or entities other than the obvious "employer."

The Associated Press reports that this morning, House and Senate leaders announced that the Congress has approved legislation that would extend until year end unemployment benefits and COBRA subsidies. The cost to taxpayers is estimated to be $ 47 Billion. We anticipate President Obama will the sign the bill.

On May 18, 2010, the California Department of Industrial Relations issued a press release announcing it filed this week proposed regulations to establish a "Compliance Monitoring Unit" or "CMU," the stated purpose of which is "ensuring compliance with the State's prevailing wage laws on public works projects in California." According to the the press release, "[t]he CMU will review certified payroll ...

On May 17, 2010, in Simpson Strong Tie Co., Inc. v. Pierce Gore, the California Supreme Court held that a manufacturer could not maintain a lawsuit against an attorney based on allegedly defamatory advertisements by the attorney seeking plaintiffs to participate in a potential class action lawsuit against the manufacturer on the ground that those advertisements were protected by California's anti-SLAPP statute.

The California Supreme Court has scheduled for oral argument two cases of potential interest to employers:

On May 25, 2010, the Court will hear oral arguments in Lu v. Hawaiian Gardens Casino. The issue to be decided in that case is whether "Labor Code section 351, which prohibits employers from taking 'any gratuity or part thereof that is paid, given to, or left for an employee by a patron,' create a private right ...

As we previously reported here, in Jaimez v. DAIOHS USA, Inc., a decision we think is wrongly decided in many ways, the California Court of Appeal might have made it significantly easier for plaintiffs to obtain class certification in wage and hour cases.

As we previously reported here, On March 24, 2010, the United States Department of Labor("DOL") Wage and Hour Division made a significant change in its compliance assistance by moving from its longstanding practice of issuing fact specific opinion letters to issuing more general, across-the-board Administrator's Interpretations. The change is significant because it likely signals the DOL's intention ...

California contractors were stunned in November 2008 when the Director of the California Department of Industrial Relations ("DIR") issued a determination that a specific contractor, Russ Will Mechanical, should have paid prevailing wages to its workers who fabricated HVAC parts in the company’s permanent off-site fabrication shop for a specific public works project. Russ Will Mechanical filed an ...

Perhaps somewhat lost in the commotion over health care reform legislation is the Hiring Incentives to Restore Employment Act ("HIRE Act"), which provides certain tax incentives to employers that hire and retain recently unemployed or underemployed persons.

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