Labor & Employment Law Blog

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On February 17, 2011, the California Court of Appeal ordered published (and therefore citable) its previously unpublished (and therefore not citable) decision in Drake Price v. Starbucks Corporation, a decision that should prove helpful to employers defending against claims for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 ...

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 ...

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 Travato v. Beckman Coulter, Inc., the California Court of Appeal issued a decision potentially helpful to employers defending claims of alleged harassment and/or alleged retaliation, holding that the plaintiff's claims were time barred because she failed to present them within one year of the last alleged bad act and holding there was no evidence to support application of the continuing violations doctrine, which, under some circumstances, can save claims that would otherwise be time-barred. 

As we reported here, the California Court of Appeal recently issued a decision holding that an "aggrieved" employee can seek against his or her current or former employer penalties under the California Private Attorneys General Act of 2004 penalties for failing to provide to employees as required by an applicable Industrial Welfare Commission ("IWC") wage order. Specifically, In Home Depot U.S.A., v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders. In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA). In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements. Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order."

On January 14, 2010, the National Labor Relations Board ("NLRB") issued a press release stating it informed the Attorneys General of Arizona, of South Carolina, and of Utah that recently-approved constitutional amendments to those states' laws requiring that union elections be conducted only by secret-ballot elections and not by submission of signed union authorization cards or by other means.  The NLRB informed those states also that the NLRB would file suit in federal court to enjoin those states from enforcing those laws.

As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, 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. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use.  She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful.  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.