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February 2007

The Latest Employment Law Buzzwords

On a less serious note today, if, like us, you are getting tired of hearing the phrase "famous for being famous," we offer a new buzz phrase for 2007: "A class of one." A couple of our favorite bloggers have been using the phrase recently, and neither of them meant the same thing.

The UCL Practitioner talked about a January class action in which the numerosity element for class certification under FRCP Rule 23 was discussed, and the court found that a "class of one" cannot be certified.

The "numerosity" requirement of class certification it is almost always satisfied, so the case law very rarely discusses it. In McGaughey v. Treistman, 2007 WL 24935 (S.D.N.Y. Jan. 4, 2007), however, the court denied class certification of "a class of one" for failure to satisfy the numerosity requirement...

Meanwhile, Ross's Employment Blog was talking about the rejection of a "class of one" in discrimination cases.

The ("liberal") 9th Circuit today rejected a legal theory that many other circuits have adopted. It's the class-of-one idea that you can win an equal protection case even though you're not claiming to be in a multi-member class such as is involved in race and sex discrimination.

We don't think the "class of one" buzz phrase will catch on though, since no court seems to like it.


Workers Sue Tyson Over Illegal Hiring Practice

U.S. District Judge Curtis L. Collier has set a March 2008 trial date in a novel class action against Tyson Foods, which alleges that Tyson hired illegal immigrants at eight plants located in Indiana, Alabama, Missouri, Texas and Virgina, thus depressing wages for local, legal, workers in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Attorneys for the class believe the number of workers in the class are between 50,000 and 100,000.

Tyson vows not to settle the case. "My client is not inclined to participate in anything that would lead to a settlement," said Tyson's lead attorney, Tom Green of Washington, D.C. In 2003, the company successfully defended an allegation that the corporation and three managers conspired to hire illegal immigrants from Mexico and Central America for low-wage production jobs to boost profits. However, two other Tyson managers entered into plea bargains and were sentenced to probation.

Should the case against Tyson succeed, there is a strong likelihood that similar cases will be filed against other large employers of undocumented aliens. The case was dismissed in 2002, after Tyson won a motion to dismiss based upon its argument that a collective bargaining agreement between the company and the employees' union provided the union, rather than individual workers, with the right to bring such claims. The dismissal was reversed by the Sixth Circuit Court of Appeals.


Papa John’s Employees Granted Class Action Status

U.S. District Court Judge Gary Allen Feess has certified a class action lawsuit filed in Los Angeles on behalf of a group of employees who worked for a Papa John’s Pizza restaurant franchisee which formerly operated 14 restaurants in California. The ruling clears the way for up to 900 former employees of PJ United, Inc. and its subsidiary, PJ Cheese, to have their claims heard in a single trial. According to representatives at the law offices of Shawn Khorrami and Kabateck Brown Kellner, LLP, who represent the class, the suit charges that the franchisee misclassified workers as store managers to avoid providing meal breaks, rest periods and overtime pay, and denied meal and rest periods to drivers and other store employees.


Future Companion Cases to Gentry?

Does Discover Bank make it substantively unconscionable to impose a class action ban upon employees whose wage and hour claims might sometimes be large enough to pursue individually? The Supreme Court will probably answer that question in 2007. Gentry v. Superior Court is the lead case before the Supreme Court on this issue, and there are currently three companion cases: S148581 Dunn v. Superior Court (Kroger Co.), S141677 People v. Vasquez, and S141753 Jones v. Citigroup.

Two unpublished appellate opinions issued in January are also awaiting Supreme Court review on the issue of whether arbitration clauses that purport to ban class actions should be upheld or stricken as unconscionable. In Firchow v. Citibank (South Dakota), N.A. (January 10, 2007), no. B187081 (Second Appellate District, Division Seven), the Court of Appeal affirmed the trial court's holding that the defendant's "no class action" arbitration clause was unconscionable under Discover Bank. In In re Cingular Cases (January 16, 2007), no. D047603 (Fourth Appellate District, Division One), the Court of Appeal affirmed another trial court's holding that the defendant's "no class action" arbitration clause was unconscionable under Discover Bank, and that the Federal Arbitration Act (FAA) did not preempt state court decisions regarding general contract law, as long as those principles applied to all contracts, not just arbitration agreements. We think the Supreme Court will grant review and hold both cases pending the outcome of Gentry.

The issue on appeal in Gentry reads as follows:

Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents issues regarding the enforceability of an arbitration provision that prohibits employee class actions in litigation concerning alleged violations of California's wage and hour laws.

Gentry is fully briefed, and with the new handy-dandy calendar posted on the Supreme Court's website, we are able to infer the probability that the case will be put on the Supreme Court's Los Angeles calendars during the week of April 2 or June 4.


El Torito Class Action Settlement Approved

This morning, Los Angeles County Superior Court Judge Aurelio Munoz conditionally certified a class action against Real Mex Restaurants, Inc. and granted preliminary approval of a settlement under which Real Mex will pay up to $5 million to settle claiming arising out of its policies and practices concerning meal and rest breaks and employee uniforms at its California restaurants. The settlement involves hourly restaurant workers who worked in the State of California at El Torito, El Torito Grill, Acapulco, Las Brisas, El Paso Cantina or Guadalharry's restaurants between December 2000 and December 2006. Notice will be sent to class members on or before April 10, 2007. Class members who wish to participate in the settlement will need to sign and return their proof of claim forms within 50 days after the notice is mailed. A final fairness hearing will be conducted on June 22, 2007.

The class members are represented by Walsh & Walsh, P.C., Langford & Langford, P.C., The Carter Law Firm and the Law Office of Jose Garay. Class members seeking additional information can contact us by email, through our website (where further details will be posted after the notice is completed and mailed) or by telephone at (714) 544-6609.


Mervyn's Reviewed and Remanded Again

In July 2006, in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, the California Supreme Court decided that Proposition 64 applied to pending cases, including cases in which a judgment had been entered, but the judgment was still subject to a pending appeal. Essentially, the Court that Proposition 64 applied to existing lawsuits even though it "withdraws the standing of persons who have not been injured," and leaves such representative actions without a representative. This ruling did not mean that all pending representative actions by uninjured plaintiffs would necessarily be dismissed, however. In a companion case, Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, the Court held that a plaintiff who loses standing because of Proposition 64 (and Mervyn's) could move to amend the pleadings to substitute a new plaintiff who complies with the new standing requirements, applying the lost-standing liberal policy underlying motions for leave to amend pleadings.

Californians for Disability Rights reacted to the ruling by filing a request to grant leave to move for substitution of plaintiff in this court, or in the alternative for an order vacating the judgment and remanding the case to the trial court with leave to permit amendment. After hearing oral argument in November 2006, the motion was denied and the appeal by Californians for Disability Rights was dismissed for lack of standing. To us, the decision seemed contrary to the rule stated in Branick. Californians for Disability Rights apparently thought the same, as they petitioned the Supreme Court for review.

Today, the Supreme Court issued a somewhat unusual order, granting review and transferring the case back to the First Appellate District, Division Four, with directions to vacate its decision and to reconsider the cause in light of United Investors Life Insurance Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th, 1300 and Branick v. Downey Savings & Loan Assn (2006) 39 Cal.4th 235. All seven justices joined in the order. It would appear that there will be a new plaintiff/appellant in the Californians for Disability Rights case, and that the appeal will eventually be heard on the merits.


Court of Appeal Reverses Order Sustaining Class Action Demurrer Without Leave to Amend

The 4th District Court of Appeal has reversed a trial court's order sustaining a demurrer to class action allegations in LaLiberte v. Pacific Mercantile Bank (2007) ___Cal.App.4th ___ (G036235, Super.Ct. No. 03CC07092) on the ground that public policy entitled the class representatives to amend the definition of their class to allow the matter to proceed on behalf of the putative class members. The case did not involve wage and hour claims, but is of interest to wage and hour attorneys and their clients who litigate class actions.

In LaLiberte, the trial court determined that the statute of limitations barred the certain class member claims, including all or some of those asserted by the lead plaintiffs, and sustained a demurrer to class allegations without leave to amend, on the ground that the plaintiffs were no longer members of the class. The Plaintiffs appealed, contending that they should have been allowed to amend their class definition or to conduct further discovery to identify an adequate class representative, and also appealed a determination that rescission was unavailable as a class remedy for violations of the Truth in Lending Act (TILA).

The Court of Appeal reversed in part and affirmed in part, finding that the trial court should have granted leave to amend the class definition in the third amended complaint, but that the plaintiffs' rescission claim was properly stricken without leave to amend. (The trial court judge, David Velasquez, was the same judge who denied leave to amend in our case against Dollar Tree Stores, Inc.) We will not discuss the second part of the holding, as it holds little interest for wage and hour practitioners.

The defense relief upon Payne v. United California Bank (1972) 23 Cal.App.3d 850, which held that, where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained. PMB argued that, on the face of the complaint , the plaintiffs were never members of the interested class and cannot give themselves standing to sue by purporting to represent a class of which they were never a member.” The employees, however, relied upon La Sala v. American Sav. & Loan Assn (1971) 5 Cal.3d 864, which holds that a plaintiff who is no longer a member of the class generally must be granted leave to amend the definition of the class and/or to substitute a new class representative to preserve the claims of putative class members.

The Court of Appeal distinguished Payne on several grounds. In Payne, were never were members of the class they purported to represent and had failed to timely seek amendment to add a qualified class representative. In LaLiberte, the named plaintiffs had standing to bring individual claims mirroring those of the class members, and "the fact that the named plaintiffs’ claims arose earlier than those of the other class members is legally insignificant". Moreover, unlike Payne, the named plaintiffs here properly requested amendment in their opposition to the demurrers. Thus, the trial court abused its discretion in denying plaintiffs leave to amend their third amended complaint as La Sala permits.

You can download the full text of LaLiberte v. Pacific Mercantile Bank here in pdf or word format.


Ninth Circuit Upholds Certification of Wal-Mart Gender Discrimination Class Action

Last week, the Ninth Circuit affirmed a class certification order in Dukes v. Wal-Mart, Inc. (9th Cir. 2007) __ F.3d __ (Case No. 04-16688, 04-16720), a high profile nationwide gender discrimination case brought on behalf of two million women working for the world's largest private employer. The three-member panel affirmed the order granting class certification of plaintiffs' gender discrimination claims under Title VII, with one judge dissenting. The case was argued back in August 2005. We had the chance to hear the entire argument via an unusual posting of the session as a media file on the Ninth Circuit's website. Unfortunately, we just checked and the link we posted back in 2005 is dead. This is what we had to say about it then.

The reason this is of interest to wage and hour practitioners is because of the unique argument Wal-Mart is making in opposition to the certification of the case as a class action by the U.S. District Court. Wal-Mart has argues that due process requires that the company be given the right to defend the claim of each class member individually, such that allowing a class action actual violates the U.S Constitution.

The plaintiffs, quite obviously, counter with the argument that such a claim has been rejected in other class action cases by every court from the District Court to the U.S. Supreme Court, and that finding in favor of Wal-Mart would essentially end the class action procedure entirely.

Brad Seligman argued for the plaintiffs, and did a fine job. Wal-Mart's counsel ran into a buzzsaw when the court complained about the arrogance and lack of civility and courtest toward the court in its brief.

The trial court's reliance upon expert analyses, statistics and over one hundred declarations from current and former workers was upheld, and the court found this to be "significant proof of a corporate policy of discrimination and support plaintiffs' contention that female employees nationwide were subjected to a common pattern and practice of discrimination." The original trial court decision is set forth in Dukes v. Wal-Mart Stores, Inc. (N.D. Cal. 2004) 222 F.R.D. 137.

The opinion does not end the certification battle, however. Wal-Mart is almost certain to request an en banc review by the full 15-member Ninth Circuit Court of Appeals, and if that fails, it will certainly file a petition for writ of certiorari with the U.S. Supreme Court. As a side note, one of the lead attorneys for Wal-Mart managed to get appointed as the head of the Department of Labor's wage and hour division while the case was awaiting decision.

Employment blawgers have been chatting about the case like mad. The most angry of the defense side blawgs seems to be at Point of Law, which calls this "a decision that should be long studied for its intellectual dishonesty." They didn't like it much more over at Cal Biz Lit. Sheppard Mullin's blog was more subdued, observing that the decision does not change or develop the law to any significant degree. The WalMartWatch blog was a bit more celebratory in its approach.

If you want to decide for yourself, you can read a pdf of the full opinion at this link.

If you are a member of the class and would like to speak to the class counsel, details are available at this website: http://www.walmartclass.com/public_home.html. Walsh & Walsh, P.C. are not involved in the case. Please do not email us with questions.


Siding With Big Business, Cheney Announces Bush Will Veto Workers’ Rights Bill

Of interest to labor lawyers focusing in organization issues, the “Employee Free Choice Act (EFCA), which has strong bipartisan backing in Congress, would make it easier for workers to form a union. Under the current law, “even when a majority of workers ask for union representation, their employers can force them to undergo an election process” administered by the Bush administration’s “anti-worker” National Labor Relations Board. However, deep-pocketed corporate lobbying groups have joined together to defeat” the EFCA. Speaking before a business lobby group this week, Vice President Cheney announced that Bush will veto the EFCA legislation. Click the link on the hat tip at the bottom of this page to view the video.

The current union organization system is tilted against America’s workers. Each year, over 20,000 U.S. workers are illegally fired, demoted, laid off, suspended without pay, or denied work by their employers as a result of union activity. Under the Bush administration, American workers have seen union levels — and their wages — steadily drop:

– In Oct. 2006, Bush’s National Labor Relations Board (NLRB) — “easily the most anti-worker labor board in history” — issued a decision that will deny the right to organize to as many as 8 million workers in 200 occupations.

– In 2000, 13.5 percent of all wage and salary workers were unionized. In 2006, just 12 percent of workers were in unions.

– The portion of private sector workers covered by union protections has fallen steadily from 23.2 percent in 1979 to 8.5 percent in 2005.

– In 2004, 92 percent of employers forced workers to attend “mandatory captive audience meetings” where workers often had to “listen to hours of anti-union presentations by corporate representatives.”

– “The median hourly wage for American workers has declined 2 percent since 2003″ — after factoring in inflation — even though average worker productivity “has risen steadily over the same period.”

Unions ensure a better standard of living for working Americans. Workers represented by unions earn 28 percent more than nonunion workers and are 62 percent more likely to have medical insurance through their jobs. Contact your lawmakers and tell them to support the Employee Free Choice Act.

[hat tip: thinkprogress.org]


Albertson's Class Certification Upheld

A case filed in San Diego Superior Court on behalf of hourly front-end Albertson's store managers will proceed as a class action. Last July, Judge Linda Quinn granted a motion for class certificationin Wilcox v. Albertson's, Inc., San Diego County Superior Court case no. GIC833922. Albertson's appealed the order by filing a writ petition in Division Three of the 4th District Court of Appeal. That petition was summarily denied on December 28, 2006. Albertson's petitioned the Supreme Court for review, but review was denied this afternoon.

The primary claim in the case is that the employees (current and former hourly key-carrier employees of Albertson’s, Inc. within the state of California, including service operations manager, assistant service operations manager, fifth person key carrier, fourth person key carrier, third person key carrier, service supervisor, front end manager, assistant front end manager, and front end clerks) are required to remain on-duty during rest and meal periods. As we predicted when we first mentioned the case in July, the same broad trial court discretion that doomed the employees' appeal in another class action against Albertson's made the certification order in Wilcox almost impossible to overturn on appeal.

In the same session, the Supreme Court refused to review another Court of Appeal decision denying review of a trial court's class certification order in a consumer case, VeriSign, Inc. v. Superior Court, a case that involves alleged fraud claims arising from the sale of SSL Certificates.


E-Loan To Pay $13.6 Million to Settlement Wage and Hour Class Action

E-Loan Inc. has agreed to pay up to $13.6 million to settle a wage and hour class action brought on behalf of more than mortgage loan consultants in its Pleasanton and Dublin, California offices. Mousai v. E-Loan, Inc. (N.D. Cal, Case #3:06-cv-01993-SI). involved claims for back pay, penalties and other remedies for unpaid overtime, and meal and rest break violations. Employees who worked during a period from December 2001 through June 2006 are eligible to participate in the settlement. The average award, after attorney's fees (25%) and costs are deducted, is nearly $20,000. The lead plaintiff will receive an extra payment of $20,000, and 42 class members who joined the suit in 2006 will received an extra payment of $1,000 each. U.S. District Judge Susan Illston granted preliminary approval of the settlement on January 12, 2007. It is still subject to a final approval hearing in May 2007. Claims forms are scheduled to be mailed to eligible class members on February 12, 2007.

E-Loan, Inc. claims a mutual victory for the company and its workers. "While we strongly dispute the claims made in the action, we are pleased that a resolution was reached which most benefits our employees whom we truly value," said Rosemarie Carbone, vice president of people and leadership.


Argument Date Set For Murphy v. Kenneth Cole

Oral argument has been set in Murphy v. Kenneth Cole Productions, Inc. The matter will be heard on March 7, 2007, at 1:30 p.m. at the Supreme Court's San Francisco courtroom, located at 350 McAllister Street, Fourth Floor, San Francisco, California. Two death penalty appeals will be heard during the same session.

The issues presented are:

(1) Is a claim under Labor Code section 226.7 for the required payment of "one additional hour of pay at the employee's regular rate of compensation" for each day that an employer fails to provide mandatory meal or rest periods to an employee (see Cal. Code Regs., tit. 8, ? 11010, subds. (11)(D), 12(B)) governed by the three-year statute of limitations for a claim for compensation (Code Civ. Proc. 338) or the one-year statute of limitations for a claim for payment of a penalty (Code Civ. Proc. 340)? and

(2) When an employee obtains an award on such a wage claim in administrative proceedings and the employer seeks de novo review in superior court, can the employee pursue additional wage claims not presented in the administrative proceedings?

We've discussed the case extensively here, here, here and here, and briefly in several other posts.


Alvarez - Review Denied

Yesterday, the Supreme Court denied a petition to review in Alvarez v. May Department Stores Co. (2006) 143 Cal.App.4th 1223 (upholding a demurrer to a wage and hour class action on the basis of collateral estoppel arising out a previous denial of class a certification motion in another matter) and denied a request for depublication. Our prior post on Alvarez can be read here. For the first time in a long time, we were surprised by the Supreme Court. We thought that the issues were novel, interesting and worthy of consideration by the high court. Justice Kennard was of the opinion that the case should be reviewed.


UPS to Pay $87 Million to Settle Wage and Hour Class Action

One of the cases we mentioned last month, in the context of the Labor Code § 226.7 wage/penalty issue, was Cornn v. United Parcel Service, Inc., (N.D. Cal., Case #3:03-cv-02001-TEH ).  Judge Thelton E. Henderson had previously made a ruling determining meal and rest period pay to be a wage under California law. Cornn v. United Parcel Service, Inc. (N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 20095. A reader emailed us to ask if that was the UPS case that settled last month. It is. Well, actually, it settled in October, and the settlement was approved in December; but yes, it's the case you recall reading about in the news.

Cornn v. United Parcel Service Inc. was a wage and hour class action lawsuit filed on behalf of 20,000 drivers, seeking unpaid overtime, meal and rest period pay, pay stub penalties and other remedies. To settle the case, UPS has agreed to pay up to $87 million. The settlement was reached only after the court certified the class and the employees prevailed in a number of motions, including motions for summary adjudication, reconsideration of the class cert. order and several other determinations on liability. A trial had been scheduled for March 2007.

Judge Henderson will conduct a final fairness hearing on April 9, 2007. Congratulations to Wendy York (York Law Corporation) and William Kershaw (Kershaw Cutter & Ratinoff LLP), who lead the legal team for the employees, for their outstanding result.


New Travel Expense Regs

Tomorrow, the California Division of Labor Standards Enforcement will conduct hearings into new proposed regulations governing travel expense reimbursements. The regulations pertain to travel and automobile expenses, and reimbursements for meals and other expenses. They would authorize the Division of Labor Standards Enforcement ( DLSE) to take expense reimbursement claims, and for employees to recover attorney's fees on such claims.

The regulations appear to be a response to the holding in Gattuso v. Harte-Hanks Shoppers, Inc., a 2005 appellate case, currently under review by the Supreme Court (fully briefed and awaiting a hearing date), which permitted employers to purport that higher pay for an employee could be deemed to be inclusive of expenses, and pay such a rate in lieu of providing travel reimbursements..

The proposed regulations would prohibit the kind of arrangement authorized by the Court of Appeal in Gattuso. The proposed regulations further provide that employers will pay the IRS mileage allowance, currently set at 48.5 cents per mile. Travel expenses would be calculated under any of three standards: (i) payment of actual expenses; (ii) payment under the IRS standard meal and incidental expense allowance under Publication 1542; or (iii) a per diem at the IRS-set rate. To use the per diem method, an employer must notify the employee in advance. The proposed regulations also add to the employer's pay stub documentation, which would begin to require an (i) itemized statement in writing, (ii) explaining the computation of the mileage reimbursement, (iii) including the beginning and end of the time period for which the mileage reimbursement check is being issued, (iv) the rate of reimbursement used, and (v) the number of miles being reimbursed.

The DLSE has scheduled only this one public hearing on these proposed regulations. The hearing will be in San Francisco, as follows:

Date:  February 7, 2007
Time:  10:00 a.m.
Place:  Hiram Johnson State Building, Auditorium
455 Golden Gate Avenue
San Francisco, CA 94102

Public comment will begin promptly at 10:00 a.m. and will conclude at 12 noon or when the last speaker has finished his or her presentation, whichever occurs last. At the hearing, any person may present statements or arguments, orally or in writing, relevant to the proposed action. DLSE requests, but does not require, that persons who make oral comments at the hearing also submit a written copy of their testimony at the hearing.

The written comment period also ends tomorrow. Any interested person, or authorized representative, may submit written comments to DLSE relevant to the proposed regulatory action. The written comment period closes at 5:00 p.m. on February 7, 2007. All comments must be submitted in writing (by mail, fax, or email) and received by that time by DLSE's Regulation Coordinator. Submit comments to:

Susie Smith, Regulation Coordinator
Division of Labor Standards Enforcement
Department of Industrial Relations
801 "K" Street, Suite 2100
Sacramento, CA 95814
Email: [email protected]
Fax: (916) 322-1267


Mandatory Paid Sick Leave: The New San Francisco Treat

Today, a new mandatory paid sick leave law goes into effect in San Francisco. The law was enacted when San Francisco voters passed Proposition F. The basic concept is that employees earn an hour of paid sick leave for every thirty hours worked. There are caps, eligibility requirements and other details.

Some of the critical details include:

  • With a short term exception for new employees, every employee who works within the City and County of San Francisco is eligible, including part-time employees and temps. This is true if the employee works in San Francisco, whether or not the employer's office or facility is in San Francisco, e.g., if an employee attends meetings or makes sales calls in San Francisco for only a few hours at a time, periodically.
  • A full-time employee will accrue 69 hours -- more than eight full days -- per year.
  • Accrued sick leave is capped at 40 hours (for employers with less than 10 employees) and 72 hours (for employers with 10 or more employees)
  • The leave can be used for (1) physical or mental illness, injury, or medical condition; (2) treatment and/or diagnosis of a medical condition; (3) other medical reasons; or (4) to care for or assist certain other persons with an illness, injury, or medical condition, including children, parents, spouses, domestic partners, designated significant others (for persons without spouse or domestic partner), children of domestic partners, grandparents, grandchildren, or persons with the same relationships through marriage, adoption, foster care, legal guardianship or wardship.
  • Employers are required to retain records for a period of four years, documenting hours worked and paid sick leave taken by employees, or else they face a presumption in favor of the employee that can only be rebutted by clear and convincing evidence
  • The law has a private right of action. “An aggrieved employee can either bring a civil action or rely on San Francisco’s Labor Standards Enforcement Office to bring an action. If a violation is found, the employer can be forced to reinstate the employee with back pay, pay administrative penalties which may include $50 for each hour of sick leave unlawfully withheld, and/or pay a dollar amount of sick leave withheld multiplied by three or $250, whichever is greater. The employer also could be responsible for attorneys’ fees and costs.”
  • Any adverse employment action taken against an employee within 90 days of their use of such leave creates a rebuttable presumption of retaliation.

Employers must post a notice regarding paid sick leave rights in English, Spanish, Chinese and any other language that is spoken by at least 5% of the employees at the workplace. You can download the poster here.


Fireside Bank: Report on Oral Argument

The UCL Practitioner, which has a better network of spies than do we, has an interesting post with observations from a reader who attended the oral argument in Fireside Bank. Kim Kralowec adds her own comments at the end, suggesting that her experiences have been similar to ours on pre-certification decisions on the merits in class action cases.

[Update: Reader poses the following question: "Why would it be the case that a favorable ruling on a claim brought by the party defending the class action should bar pursuit of a class claim? If the actions were separate, would not res judicata be available to the class representative, and the entire class, on this issue?" Good question. We are not aware of the one-way intervention rule barring the use of res judicata. On a substance-over-form analysis, we don't see the difference between the two situations. It would seem that if the court applied the remedy of decertifying the class, all that would be needed would be to have a new class representative file a new action and relitigate only the certification issue to get to the same circumstance.]


The Blogrolls

We recently found a new blawg search tool, cleverly enough, named "Blawg Search" and it is pretty cool. For example, you can search by state and find a listing of blawgs from California. We might add a few good legal blogs to the blogrolls on the right. We just added a couple, and we'd like to add more. Several of those we have listed now haven't written a new post in months and need to be replaced. We particularly like employment law blogs, whether written by employee or employer side lawyers. We also like blogs written by lawyers, but which have no legal theme. If you have suggestions, or you write a blog yourself and would like a link, drop us an email or leave a comment.