Posts from February 2011.

Not every cloud has a silver lining, but some do, and the California Court of Appeal's decision today in Thomas McGann v. United Parcel Service, Inc., contains a terrific silver lining for employers. Thomas McGann was employed by United Parcel Service, Inc., ("UPS") for a number of years and worked as an On Road Supervisor. UPS classified Mr. McGann as an exempt employee and therefore did not pay Mr. McGann premium pay (i.e., overtime pay) for hours worked in excess of eight hours in a workday.

As we previously reported here and here, two recent decisions of the California Court of Appeal hold 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. For example, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.

On February 17, 2011, the California Court of Appeal ordered published (and therefore citable) its previously unpublished (and therefore not citable) decision in Drake Price v. Starbucks Corporation, a decision that should prove helpful to employers defending against claims for allegedly non-compliant wage statements, which are nearly always included in wage and hour class action lawsuits.

Labor Code section 226.7 states that if an employer fails to "provide" an employee a meal period or a rest period in accordance with an applicable Industrial Welfare Commission wage order, "the employer shall pay the employee the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided."

Today, in Kevin Tien v. Tenet Healthcare Corporation, et al., the California Court of Appeal affirmed the trial court's denial of class certification of the plaintiff's claims and held an employer's obligation to "provide" non-exempt employees all meal periods required by Labor Code section 512 and by the applicable Industrial Welfare Commission Wage Order means the employer is required to make such meal ...

On February 7, 2011, in Arechiga v. Dolors Press, Inc., the California Court of Appeal upheld California’s “explicit mutual wage agreement” doctrine.  “Under that doctrine,” said the court, “an employer and [non-exempt] employee may lawfully agree to a guaranteed fixed salary so long as the employer pays the employee for all overtime at least one and one-half times the employee’s basic rate” so long as the employer and the employee enter into an agreement specifying: (1) the days the employee will work each workweek, (2) the number of hours the employee will work each workday, (3) the specific amount of the salary the employee is guaranteed to be paid, (4) the employee is informed and agrees to the basic hourly rate of pay upon which the salary will be based, (5) the employee is informed and agrees the agreed-upon salary covers the employees straight-time hours and overtime hours, and (6) the agreement is reached before the work is performed.

Relying on data from the U.S. Equal Employment Opportunity Commission, the Daily Journal reports sexual harassment claims have generally declined over the last decade from 15,222 claims in 1999 to 11,717 claims in 2010 (a decline of approximately 23%).  However, in 2010, sexual harassment claims by men rose to an all-time high of approximately 16% of the sexual harassment claims filed.  The Daily Journal ...

Hopefully, most employers are aware of California's laws requiring employers to reasonably accommodate an employee who desires to express milk for the employee's infant child. In a nutshell, California Labor Code sections 1030 and 1031 require an employer to provide a reasonable amount of break time to accommodate an employee's desire to express milk for her infant child and to provide the employee the use of a room or other location that is not a bathroom stall to express milk in private. The room or other location can be the room or location where the employee works if it provides sufficient privacy.

On July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one an unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations. 

In Arzate v. Bridge Terminal Transport, Inc., a wage and hour class action case brought by members of the Teamsters Union who own and operate their own trucks against defendant Bridge Terminal Transport, Inc., a common carrier engaged in the business of transportation, the California Court of Appeal reversed the trial court’s grant of summary judgment, holding that whether the plaintiffs were employees of defendant, and not independent contractors, was a triable issue of fact. 

Atkinson, Andelson, Loya, Ruud & Romo is pleased to announce that nine attorneys have been named to the 2011 edition of Southern California Super Lawyers: Steven D. Atkinson, Michael J. Baker, Helen R. Frazer, Edward C. Ho, Thomas W. Kovacich, Irma Rodríguez Moisa, Mark T. Palin, Robert R. Roginson, and Robert L. Wenzel.

In another case brought by the Ralph’s grocery chain challenging the enforceability of California’s anti-labor injunction statutes, a California appellate court held on January 27, 2011 that Labor Code Sections 527.3 and 1138.1 are unconstitutional because they grant greater free speech rights in “public forums” to unions engaged in labor disputes than are allowed to others. In Ralphs Grocery Co. v. U.F. C. W. Local 8, the court overturned an order denying a preliminary injunction to Ralph’s based on the application of those statutes, which severely limit the ability of courts to issue injunctions during labor disputes and impose onerous requirements on private property owners which seek to enjoin union, picketing on their premises.

Is the fiancé of an employee who has made a sex discrimination charge against her employer protected by the anti-retaliation provisions of the federal anti-discrimination law? Yes, said the U.S. Supreme Court in the case of Thompson v. North American Steel decided January 24, 2011.

The case was filed by Eric Thompson, who was terminated three weeks after his bride-to-be Miriam Regalado filed a charge with ...

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