Posts from November 2010.

In a case of first impression, in Bright v. 99¢ Only Stores, the California Court of Appeal held an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats. The court rejected the employer's argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of nonwage labor standards contained in the IWC's wage orders.

On November 8, 2010, the firm was successful in defeating a motion for class certification and was able to obtain an order striking the class allegations of the complaint pending in the San Bernardino County Superior Court.  Tom Kovacich argued the motion on behalf of the employer, VCI Telcom, Inc. The complaint alleged a menu of wage and hour violations, including underpayment of prevailing wages and sought to certify a class consisting of 89 workers. The court stated on the record that the case presented the closest case for class certification the court has ever had but felt that individual issues predominated over the issues common to the class.  Tom felt a critical factor in the case was the development of evidence that the company's policies and practices were consistent with the law, and plaintiffs did not carry their burden of establishing that the alleged violations were common to the class.  As a result of the Court's denial of class certification, the employer must address only the claims by the two plaintiff former employees who were employed for approximately nine months.

Adding to the body of case law that has been developed pending the Supreme Court's decision in the Brinker Restaurant case, a California appellate last week sided with the employer's arguments they need only “provide” meal periods under state law and not “ensure” that they are taken. The court in Hernandez v. Chipotle Mexican Grill accordingly upheld an order denying certification of a proposed meal ...

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