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September 2007

Wage Wars

0740covdc Check out the cover story for the current issue of Business Week, entitled: "Wage Wars — Workers from truck drivers to stockbrokers are winning huge overtime lawsuits." Related articles include "Labor Law Time Warp - America's New Deal-era overtime laws need updating, but the political will is lacking" (which we couldn't disagree with more), a snippet about settlements and pending cases entitled "No Industry is Immune" and a graphic entitled "The Rules Reflect Old Assumptions." The article is accompanied by a podcast that you can download and listen to when you have the time:
http://www.businessweek.com/mediacenter/qt/podcasts/cover_stories/covercast_09_20_07.mp3

(How many of you thought we would post a link about this weekend's 80th Annual State Bar Convention?)


CELA Seminar This Weekend

CELA'S 20th Annual Employment Law Conference is this weekend at the Fairmont Hotel in San Jose. If you are interested, check out the conference agenda. If you are a employees' lawyer in California and you haven't joined CELA yet, you should look into it.

  CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION   
FIGHTING FOR JUSTICE
CELA'S 20th ANNUAL EMPLOYMENT LAW CONFERENCE
SEPTEMBER 28 & 29, 2007

THE FAIRMONT HOTEL, SAN JOSE, CALIFORNIA

Plus a September 27 Full Day Skills Seminar:
Disability Discrimination Cases: From Intake Through Trial
COMPLETE
CONFERENCE
AGENDA
KEYNOTE SPEAKER
Justice Cruz Reynoso
Former Justice, California Supreme Court
CONFERENCE
REGISTRATION
FORM


Wage & Hour Litigation Conference San Francisco, September 27-28, 2007

Bridgeport Continuing Education is presenting a 9.5 hour two-day seminar on Wage & Hour litigation this week at the Stanford Court Hotel located at 905 California Street in San Francisco. The program is designed for attorneys and corporate counsel as well as risk and claims managers and will incorporate both plaintiff and defense perspectives.

Topics include: Wage & Hour Case Update, Class Action & Individual Wage & Hour Actions, Preparing for and Excelling in Mediations, Insurance Coverage in Wage & Hour and Class Actions, Class Certification, Dual filed Actions, Claims Administration, The Intricacies of Wage & Hour Cases in California, Discovery in Wage & Hour Actions, Meal & Break Period Case Analysis, Overtime Case Analysis, Mandatory Class-wide Arbitration Agreements.

PROGRAM AGENDA

Day One: 8:30  9:00  Registration & Continental Breakfast

9:00  9:05  Introduction and Program Overview

9:05  10:00 Case Law Update and Recent Developments
Timothy Long of Orrick

10:00 11:00 Class Certification Arguments: for and against
Andrew Livngston of Heller Ehrman - defense
Peter Rukin of Rukin, Hyland Doria & Tindall - plaintiff

11:10  12:15 Discovery Issues and Arguements
Paula Weber of Pillsbury Winthrop Shaw Pitman
Daniel J. McCoy of Fenwick and West

1:15 2:15 Overtime and Misclassification
Jim Finberg of Altshuler Berzon

2:30 3:30 Missed Meal and Rest Breaks
Brian Dixon of Littler Mendelson

3:30 4:30 The Wage & Hour Trial
Edward Wynne of the Wynne Law Firm
Matthew Righetti of the Righetti Law Firm

Day Two: 9:00  10:00 Does Insurance Cover Wage & Hour Claims?
Kirk Pasich of Dickstein Shapiro

10:00  11:00 Mediation and Settlement - Overcoming Pitfalls and Land Mines
Jeffrey Wohl of Paul Hastings Janofsky and Walker
Scott Cole of Scott Cole & Associates

11:15 - 12:15 Attorneys Fees in Wage and Hour Cases
Gerald G. Knapton of Ropers Majeski Kohn & Bentley

Seminar Details
Location: The Stanford Court Hotel, 905 California Street in San Francisco.
Time: (day 1) 9:00 a.m. to 4:30 p.m. (day 2) 9:00 - 12:15
MCLE: approved for 9.5 hrs of MCLE.
Register online at: http://www.reconferences.com
Register by phone at: 818-783-7156
Register by fax or mail: (818) 827-3338 or 13636 Ventura Blvd. #215 Sherman Oaks, CA 91423

If you aren't going to be at the CELA conference this weekend, this is another good choice.


Court Rules That County Can Force Use of Sheriffs' Accrued Vacation Time

A California appeals court has ruled that the County of Los Angeles (County) can force peace officer employees to use excess deferred vacation time in order to avoid a year end cash payout for that time. In Association for LA Deputy Sheriffs v. County of Los Angeles (2007) __ Cal.App.4th __, construed the relevant provisions of the Los Angeles County Code and a memoranda of understanding (MOU’s) between the County and the bargaining unit for the sheriffs, and affirmed a trial court determination that the County does have the managerial power to force the use of deferred vacation time.

The trial court held that the County has “the management right to set the terms and conditions of its employees, including, but not limited to, the management right to require plaintiffs and petitioners herein to take off accrued vacation under the California Constitution, applicable California laws, and the charter of the County of Los Angeles . . . .” The employees argue that the County’s forced vacation policy violates their right under the County Code to receive a cash payout for excess deferred vacation hours and impermissibly divests them of a valuable employment benefit under Bonn v. California State University, Chico (1979) 88 Cal.App.3d 985 (Bonn) and Kistler v. Redwoods Community College Dist. (1993) 15 Cal.App.4th 1326 (Kistler). We disagree. The employees interpret both their rights and the prevailing cases too broadly. The cases on which the employees rely are inapposite because they concern vacation benefits already vested, while the benefits at issue here are prospective. Furthermore, we agree with the court’s characterization in Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 872 (Los Angeles County Prof. Peace Officers) of the County’s excess vacation buy-back policy as not granting any rights to employees, but rather limiting the amount of vacation time that can be accrued.

For a time, you will be able to download the full opinion in Association for LA Deputy Sheriffs v. County of Los Angeles here in pdf or word format.


Flight Attendants Wage Claims Governed by Railway Labor Act

A flight attendant's claims under California labor law regarding minimum wages, overtime and meal/rest breaks are preempted by the Railway Labor Act (45 U.S.C. § 151 et seq.), according to an opinion published this week by the Second District Court of Appeal in Fitz-Gerald v. SkyWest Airlines, Inc. Accordingly, a summary judgment in favor of SkyWest on the employee's class action for such wage claims was upheld.

The case arose, at least in part, from a practice under which flight attendants are paid a per diem to cover all work performed other than "gate-to-gate" flight time. This "block time pay" averages $1.60 per hour, but only reduces the flight attendants' overall compensation rate to $23.13 an hour (flight time plus block time, averaged over a month). The employees, citing Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, contended that that wage averaging under the FLSA could not trump state minimum wage law. However, the court distinguished Armenta on several grounds: it did not involve an interstate air carrier, it not involve the RLA or a CBA sanctioned under the RLA, and it did not involve a state wage order that contained a RLA exemption.

The RLA regulates labor relations between common interstate air carriers and their employees. In United Air Lines, Inc. v. Industrial Welfare Com. (1963) 211 Cal.App.2d 729, the court held that a California IWC order requiring employers to pay for flight attendant uniforms did not apply to an interstate airline because the collective bargaining agreement provided that the cost of uniforms was to be paid in part by the employee. The court concluded that the IWC order was preempted by the RLA and that enforcement of the IWC order would burden interstate commerce.

Similarly, here, the court found that there was a CBA (even though SkyWest is a non-union employer), and that although the RLA contains no specific language with respect to state minimum wage law and meals/rest breaks, the RLA preempts all state law causes of action that depend upon interpretation of a CBA, including claims for state minimum wages, meal/break time damages and overtime wages. Because the first, second, and third causes of action were preempted by the RLA, the trial court properly ruled that the fourth cause of action for waiting time penalties (Labor Code § 203) and fifth cause of action for violation of the Unfair Business Practices Act were also barred.

Alternatively, the trial court ruled that the complaint was barred by the Airline Deregulation Act of 1978. The ADA provides that a state "may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service" of an air carrier. The United States Supreme Court has held that claims under a state unfair business practices statute are preempted by the Airline Deregulation Act because the state claims would impose economic regulation on airlines. Based on those federal cases, the court concluded that the ADA separately bars the fifth cause of action for relief under the California Unfair Business Practices Act.

You can download the opinion in Fitz-Gerald v. SkyWest Airlines, Inc. here in pdf or word format.


Brinker Could Clarify Further the Meaning of "Providing" a Meal Period

The Fourth District has heard oral argument in Brinker Restaurant Corp. v. Hohnbaum (4th Dist. No. D049331), noted as one of the first five large meal period class actions to be certified. Among other things, the case casts a second look at what it means to provide a meal period, as is required under the IWC wage orders, perhaps with an eye toward revisiting another appellate district's 2005 ruling in Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949. The earlier case affirmatively required employers to ensure that workers are actually relieved of all duty during meal periods. Employers argue for "provide" to mean something more synonymous with the rest period duties to "permit and authorize." They also argue that the difference substantially affects the likelihood that a case could be suitable for class action treatment.

The case was ably argued on both sides, but none of the observers we've chatted, texted, IMd or emailed with had any strong opinions as to whether or where the court will end up on the certification issues. If you saw the arguments and have an opinion, please leave a comment. The one and only unanimous view we've heard is that Miles Locker argued well for the amici and that the justices seemed very interested in what he had to say about the DLSE regulations and practices. Aside from that, defense lawyers seemed to believe the employer's side was better presented, and employees' lawyers thought the opposite.

You can track the progress of Brinker here.


Bill Lerach To Plead Guilty, Go To Prison

The Washington Post has reported that prominent class action attorney Williams S. Lerach has agreed to pay the government $8 million in fines and penalties and to plead guilty to a charge of obstructing justice. Lerach’s plea stems from charges that he and his former law firm provided kickbacks to plaintiffs in class action cases. Prior reports alleged that the kickbacks were millions of dollars. Under the terms of the plea, which is not yet approved by the judge, Lerach will serve at least one year, and no more than two years, in a federal penitentiary.


Trial Court Rejects “Short Shift Bonus” As Overtime Avoidance Scheme

Los Angeles Superior Court Judge William MacLaughlin has ruled that Huntington Memorial Hospital violated California Labor Code § 510 by paying its nurses and other employees a lower, hourly, rate-of-pay when they worked overtime shifts of 10 hours or more in a day. Huntington Memorial Hospital set up a pay scheme under which received a “short shift bonus” of 16.66667% whenever they worked less than 10 hours per day. Virtually all nurses worked either 8-hour shifts or 12-hour shifts. The mechanics of the practice were such that employees working 8 hours, with their "short shift bonus" earned the same hourly rate as they did when they worked a 12 hour shift without the
short shift bonus." The hospital, represented by Littler Mendelson, argued that the “short shift bonus” plan was really designed to confer an "extra benefit" upon employees when they were not afforded the wonderful opportunity to work a 12-hour shift with overtime pay. Attorneys for the class argued that the true purpose and effect of the plan was to reduce employees' pay on long shifts so as to negate the overtime rate required under California law.

The case was certified in 2004, and the issue was tried in the first part of a bifurcated trial that wrapped up in July. Judge MacLaughlin's memorandum of decision can be read in the attachment found here. The findings and determinations were as follows:

  • (1) Defendant's pay system during the class period is an artifice or subterfuge which evaded and failed to comply with the overtime laws;
  • (2) the regular rate of pay for 12-hour employees does not need to be computed in a "wholly unrealistic and artificial mannet' in the circumstances of this case to prove a violation of the wage laws; in this instance, Defendant's failure to include the SSP in the calculation of the regular rate violated the law and its purposes;
  • (3) the amounts paid to the Class after the 8th and 12th hour of the work day, or 80 hours in a pay period, did constitute payment for overtime (although not based on the correct regular rate) and do not have to be included in the calculation of the regular rate;
  • (4) the short shift premium was remuneration based on the hours worked and any other reason for its payment does not exclude it from calculation of the regular rate; and
  • (5) the evidence produced by Plaintiffs established that the short shift premium must be included in the calculation of the regular rate of pay for 12 hour employees who worked 10 or more hours in a scheduled 12-hour shift during the class period.

On the legal issues, the Court found that the evidence produced establishes by a preponderance of the evidence that Defendant's pay system during the class period violated California Labor Code Section 510 and that such violation warrants restitution to members of the Class of the amounts representing the difference between what was actually paid and the amount that should have been paid as overtime to 12-hour employees who worked 10 or more hours in a shift.

The decision is not binding on any other court, and cannot be cited, but it is an interesting read nonetheless. Short shift bonuses are not common, but not unheard of in California, either. Absent a settlement, this case could result in a published opinion sometime in 2008 or 2009.


How Hard Do Americans Work?

The Organization for Economic Cooperation and Development, in conjunction with Harris Interactive and Ipsos-Reid, calculates and publishes data on the number of hours people work from nation to nation. After deducting vacation, sick time, holidays and other days off, here is how they rank:

1. United States: 1824 hours (45.6 weeks)
2. Australia: 1816 hours (45.4 weeks)
3. Spain: 1799 hours (45 weeks)
4. Japan: 1789 hours (44.7 weeks)
5. Canada: 1751 hours (43.8 weeks)
6. Great Britain: 1669 hours (41.7 weeks)
7. Italy: 1585 hours (39.6 weeks)
8. Germany: 1443 hours (36.1 weeks)
9. France: 1441 hours (36 weeks)
10. Netherlands: 1357 hours (33.9 weeks)

Who gets the most vacation? The whining French, that's who. Here's how selected nations rank:

France: 39 days
Germany: 27 days
Netherlands: 25 days
Great Britain: 23 days
Canada: 20 days
United States: 12 days

Ouch.


Unlicensed Lawyers in Arbitration

Every so often, we get sent to arbitration on a wage and hour claim. It happens rarely, because wage and hour cases have none of the "runaway jury" risks that discrimination and other kinds of employment cases present to employer defendants. In addition, under Armendariz, the employer almost always has to pay virtually all of the arbitration costs. We tend to file even more motions, demurrers to answers and the like when we are in arbitration than when we are in Superior Court.

Nonetheless, we sometimes end up in arbitration, and although we have yet to lose one of those arbitrations, it could happen. When it does, there is always the risk that the employee will be stuck with an adverse award for the employer's attorney's fees.

Often, in wage and hour cases, the reason the defendant broke the law in the first place was because it was headquartered outside California, and its wage and hour policies were designed to comply with FLSA, but not California standards. When that happens, it is not uncommon for the defendant to use its favorite outside firm to handle the case (we've had Florida, Georgia and Massachusetts lawyers on the other side in several recent cases), while retaining local counsel solely to facilitate the pro hac vice application. From time to time, however, the out-of-state lawyers don't bother with the pro hac vice applications when the case has been sent to arbitration. The presents and interesting shift in the allocation of litigation risks.

When the opposing attorney is not licensed to practice in California, before defending the arbitration, they need to comply with Code of Civil Procedure § 1282.4. If they do not, their attorney's fees are not recoverable. In general, that section requires them to file papers with the California State Bar, pay a fee, and notify all counsel and the arbitrator. The full text of the code provides as follows:

(a) A party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title. A waiver of this right may be revoked; but if a party revokes that waiver, the other party is entitled to a reasonable continuance for the purpose of procuring an attorney.

(b) Notwithstanding any other provision of law, including Section 6125 of the Business and Professions Code, an attorney admitted to the bar of any other state may represent the parties in the course
of, or in connection with, an arbitration proceeding in this state, provided that the attorney, if not admitted to the State Bar of California, satisfies all of the following:
   (1) He or she timely serves the certificate described in subdivision (c).
   (2) The attorney's appearance is approved in writing on that certificate by the arbitrator, the arbitrators, or the arbitral forum.
   (3) The certificate bearing approval of the attorney's appearance is filed with the State Bar of California and served on the parties as described in this section.

(c) Within a reasonable period of time after the attorney described in subdivision (b) indicates an intention to appear in the arbitration, the attorney shall serve a certificate in a form prescribed by the State Bar of California on the arbitrator, arbitrators, or arbitral forum, the State Bar of California, and all other parties and counsel in the arbitration whose addresses are known to the attorney. The certificate shall state all of the following:
   (1) The case name and number, and the name of the arbitrator, arbitrators, or arbitral forum assigned to the proceeding in which the attorney seeks to appear.
   (2) The attorney's residence and office address.
   (3) The courts before which the attorney has been admitted to practice and the dates of admission.
   (4) That the attorney is currently a member in good standing of, and eligible to practice law before, the bar of those courts.
   (5) That the attorney is not currently on suspension or disbarred from the practice of law before the bar of any court.
   (6) That the attorney is not a resident of the State of California.
   (7) That the attorney is not regularly employed in the State of California.
   (8) That the attorney is not regularly engaged in substantial business, professional, or other activities in the State of California.
   (9) That the attorney agrees to be subject to the jurisdiction of the courts of this state with respect to the law of this state governing the conduct of attorneys to the same extent as a member of the State Bar of California.
   (10) The title of the court and the cause in which the attorney has filed an application to appear as counsel pro hac vice in this state or filed a certificate pursuant to this section in the preceding two years, the date of each application or certificate, and whether or not it was granted. If the attorney has made repeated appearances, the certificate shall reflect the special circumstances that warrant the approval of the attorney's appearance in the arbitration.
   (11) The name, address, and telephone number of the active member of the State Bar of California who is the attorney of record.

(d) The arbitrator, arbitrators, or arbitral forum may approve the attorney's appearance if the attorney has complied with subdivision (c). Failure to timely file and serve the certificate described in subdivision (c) shall be grounds for disapproval of the appearance and disqualification from serving as an attorney in the arbitration in which the certificate was filed. In the absence of special circumstances, repeated appearances shall be grounds for disapproval of the appearance and disqualification from serving as an attorney in the arbitration in which the certificate was filed.

(e) Within a reasonable period of time after the arbitrator, arbitrators, or arbitral forum approves the certificate, the attorney shall file the certificate with the State Bar of California and serve the certificate as described in Section 1013a on all parties and counsel in the arbitration whose address is known to the
attorney.

(f) An attorney who fails to file or serve the certificate required by this section or files or serves a certificate containing false information or who otherwise fails to comply with the standards
of professional conduct required of members of the State Bar of California shall be subject to the disciplinary jurisdiction of the State Bar with respect to that certificate or any of his or her acts occurring in the course of the arbitration.

(g) Notwithstanding any other provision of law, including Section 6125 of the Business and Professions Code, an attorney who is a member in good standing of the bar of any state may represent the parties in connection with rendering legal services in this state in the course of and in connection with an arbitration pending in another state.

(h) Notwithstanding any other provision of law, including Section 6125 of the Business and Professions Code, any party to an arbitration arising under collective bargaining agreements in industries and provisions subject to either state or federal law may be represented in the course of, and in connection with, those proceedings by any person, regardless of whether that person is licensed to practice law in this state.

(i) Nothing in this section shall apply to Division 4 (commencing with Section 3201) of the Labor Code.

(j) (1) In enacting the amendments to this section made by Assembly Bill 2086 of the 1997-98 Regular Session, it is the intent of the Legislature to respond to the holding in Birbrower v. Superior
Court (1998) 17 Cal.4th 117, as modified at 17 Cal.4th 643a (hereafter Birbrower), to provide a procedure for nonresident attorneys who are not licensed in this state to appear in California arbitration proceedings.
   (2) In enacting subdivision (h), it is the intent of the Legislature to make clear that any party to an arbitration arising under a collective bargaining agreement governed by the laws of this state may be represented in the course of and in connection with those proceedings by any person regardless of whether that person is licensed to practice law in this state.
   (3) Except as otherwise specifically provided in this section, in enacting the amendments to this section made by Assembly Bill 2086 of the 1997-98 Regular Session, it is the Legislature's intent that nothing in this section is intended to expand or restrict the ability of a party prior to the decision in Birbrower to elect to be represented by any person in a nonjudicial arbitration proceeding, to the extent those rights or abilities existed prior to that decision. To the extent that Birbrower is interpreted to expand or restrict
that right or ability pursuant to the laws of this state, it is hereby abrogated except as specifically provided in this section.
   (4) In enacting subdivision (i), it is the intent of the Legislature to make clear that nothing in this section shall affect those provisions of law governing the right of injured workers to elect to be represented by any person, regardless of whether that person is licensed to practice law in this state, as set forth in Division 4 (commencing with Section 3200) of the Labor Code.

(k) This section shall be operative until January 1, 2011, and on that date shall be repealed.

Rumor has it that defendants and out-of-state counsel get very angry when they first learn of those code section after prevailing at arbitration in a case with fee-shifting statutes, but like we said, we've never lost a wage and hour case, so we don't have any firsthand knowledge.


Other Legal Blogs Weigh in on Gentry

Here are a few of the legal blogs we read, and their remarks about Gentry v. Superior Court.

We expect many of the large firms to be writing and publishing articles and alerts about Gentry, too, but we rarely spend the time to dig any deeper than the fifth page of our Google search results.


Slave Sweatshop Operators To Be Sentenced

Sweatshop operator Jimmy Quan was convicted in May by a federal jury on eleven felony counts, including conspiracy to conceal assets, the concealment of assets, bankruptcy fraud, the making of false statements, and money laundering regarding three separate bankruptcies. His wife, Anna Wong was also convicted of three felony counts, including conspiracy to conceal assets, the concealment of assets, and the making of false declarations in a bankruptcy proceeding. The jury acquitted Quan on four counts of making false entries and one count of concealing assets, and acquitted Wong on one count of concealing assets. The guilty verdicts followed a four month jury trial before U.S. District Court Judge William B. Shubb.

Evidence at trial showed that Mr. Quan, 47, and Ms. Wong, 45, of San Francisco, owned numerous companies, including several clothing manufacturing businesses in San Francisco in the 1990s through 2001. Mr. Quan also controlled a property management business in San Francisco. Over a period of time, from 1997 through 2003, Mr. Quan and Ms. Wong placed three of their businesses into Chapter 11 reorganization bankruptcy and then proceeded to defraud creditors of those companies by concealing and diverting assets and making false statements to the Bankruptcy Court under penalty of perjury. The total loss to the creditors was over $5 million.

The fraud started in 1997, when Mr. Quan, having failed to pay millions of dollars in taxes, filed for Chapter 11 protection for his clothing company Win Fashion Inc. Over the course of the next four years, while the company received bankruptcy protection from its creditors, Mr. Quan proceeded to divert millions of dollars of Win Fashion revenue to other companies that he and his wife controlled. The Bankruptcy Court eventually converted Win Fashion to a Chapter 7 bankruptcy in July 2001, forcing the liquidation of the company.

One month later, in August 2001, Mr. Quan and Ms. Wong continued the fraud by placing their second clothing manufacturing company, Wins of California Inc., into Chapter 11 reorganization bankruptcy. In connection with that bankruptcy, Ms. Wong made false statements under penalty of perjury on documents filed with the Bankruptcy Court regarding the true assets of the company. Ms. Wong also diverted Wins of California revenue to another company controlled by a family member, and then concealed that revenue from the Bankruptcy Court and Wins of California creditors. Creditors of Wins of California included hundreds of low-wage employees, who, by the time Wins of California filed bankruptcy, were owed at least one-half million dollars for work they had performed, but for which they had never been paid.

Mr. Quan was also convicted of bankruptcy fraud, concealing assets, making false statements, and money laundering in a third bankruptcy. This third bankruptcy involved a property management company, controlled by Mr. Quan, called Tomi LLC. Tomi LLC filed for Chapter 11 bankruptcy protection in July 2003. Mr. Quan again diverted and concealed over one-half million dollars of Tomi LLC assets from the Bankruptcy Court and Tomi LLC creditors. The evidence further showed that Mr. Quan concealed $270,000 of these assets by depositing them into his minor children’s personal bank accounts. These transfers formed the basis of the money laundering convictions.

The sentencing of Mr. Quan and Ms. Wong is scheduled for September 12, 2007 before Judge Shubb in San Francisco. The maximum statutory penalty for each count of conspiracy, 18 U.S.C. § 371; bankruptcy fraud, 18 U.S.C. § 157; concealment of assets, 18 U.S.C. § 152(7); and making false declarations, 18 U.S.C. § 152(3) is five years. The maximum statutory penalty for each count of money laundering, 18 U.S.C. § 1956(a)(1)(B)(i), is twenty years. The maximum fine for each of the counts charged is $250,000, plus restitution where appropriate. However, any sentence following conviction would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.


Superior Court Employees Sue For Overtime

The San Diego County Court Employees Association and four employees (Susan Tran, Mary Brooks, Adrienne Banks and James Rolstad) of the San Diego Superior Court have filed a collective action against the Court under the Fair Labor Standards Act, alleging that the Court required off the clock work and denied them overtime pay and meal and rest periods. The case, which could eventually involve more than 1,000 court employees, is pending in the U.S. District Court for the Southern District of California.


Supreme Court Appears Ready to Reverse Gattuso

We've heard from a few people who attended Thursday's Supreme Court oral argument in Gattuso v. Harte-Hanks Shoppers, Inc.. Our prior comments on the case can be read here. The general consensus is that the court was not receptive to the employer's argument that it can satisfy its obligations to reimburse employee expenses simply by increasing employees' compensation generally and having employees cover their expenses out of the "higher wages." From what we've read about the issues in the case, and what we've heard about the questions and argument, we aren't expecting a split decision.

Labor Code § 2802(a) provides:

An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

The court appears likely to hold that, to comply with this obligation by increasing compensation to cover expenses, there must be a specific allocation between expense reimbursement and other compensation; and in a dispute, the employer should be required to prove that the amount allocated to expenses exceeds the amount of actual expenses. Any other outcome would essentially permit employers to evade the legislature's objective under Section 2802 in almost any situation where the wages paid exceed the sum of an employee's expenses plus minimum wage. Harte-Hanks Shoppers, Inc.'s plan also unfairly saddled employees with additional tax obligations, since the reimbursements would have been fully taxable, but the expenses would have been subject to the two percent floor, and not available to all filers.


Ninth Circuit Reverses Summary Judgment Against Postal Inspectors on FLSA Overtime Lawsuit

The Ninth Circuit has reversed a summary judgment entered in favor of the U.S. Postal Service, against several postal inspectors who claimed that they were entitled to overtime pay under the Fair Labor Standards Act of 1938. In Nigg v. United States Postal Service, three Postal Inspectors alleged that the Postal Service failed to pay Postal Inspectors their proper wages for (i) hours they worked in excess of forty-three hours per week and (ii) hours they worked on duty assignments. The trial court found that the plaintiffs could not assert claims under the FLSA because they were governed by a different compensation standard under 39 U.S.C. § 1003(c). The Ninth Circuit reversed and remanded the case for the District Court to analyze and determine their claims under the FLSA rather than Section 1003(c). The court's summary and holding are as follows:

This appeal principally involves the relationship between two labor statutes—the Fair Labor Standards Act of 1938 and a 1996 statute related to compensation for postal inspectors, 39 U.S.C. § 1003(c). Robert Nigg, a postal inspector currently employed by the United States Postal Service (“the Postal Service”) and Keith Lewis, a retired postal inspector, sued the Postal Service alleging that the inspectors are entitled to overtime pay under the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. §§ 201-219. The Postal Service does not pay postal inspectors FLSA overtime, instead claiming that their pay is governed by 39 U.S.C. § 1003(c). At issue is whether the compensation provision in § 1003(c) trumps the overtime provisions of the FLSA.

The district court granted summary judgment in favor of the Postal Service, reasoning that 39 U.S.C. § 1003(c), which requires the Postal Service to pay the inspectors on a basis of “comparability” to other similarly tasked executive branch employees, permits the Postal Service to provide “availability pay” rather than FLSA overtime. The court adopted the Postal Service’s argument that postal inspectors are comparable to certain other federal law enforcement officers who receive availability pay under the Law Enforcement Availability Pay Act, Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994).

FLSA overtime and availability pay differ significantly, both in terms of the hours of work required to qualify, and the way in which pay is calculated. For example, FLSA overtime entitles a covered employee to overtime pay for all hours worked in excess of 40 hours per week. See 29 U.S.C. § 207(a)(1). In contrast, availability pay requires a covered employee to work an average of two extra hours of overtime per day beyond the eight hour day for the entire year to be entitled to extra pay for the extra hours worked. See, e.g., 5 U.S.C. § 5545a(a)-(d).

FLSA’s overtime provisions presumptively apply to federal employees, such as the inspectors, unless a specific FLSA exemption applies. See 5 C.F.R. § 551.202(a) (“Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria[.]”). In enacting § 1003(c), Congress did not amend or repeal the FLSA, either explicitly or implicitly. We conclude that § 1003(c) is not clearly in conflict with the FLSA, and that Congress did not impliedly repeal the FLSA. See Moyle v. Dir., Office of Workers’ Comp. Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) (“ ‘Repeals by implication . . . are not favored and will only be found when the new[er] statute is clearly repugnant, in words or purpose, to the old statute . . . .’ ”) (quoting Kee Leasing Co. v. McGahan (In re Glacier Bay), 944 F.2d 577, 581 (9th Cir. 1991)). We reverse the district court’s grant of summary judgment to the Postal Service and remand with instructions to consider whether the inspectors satisfy any FLSA exemption or are entitled to FLSA overtime.

You can download the full text of Nigg v. United States Postal Service here in pdf.


Gattuso Argument Tomorrow

The Supreme Court will not have its weekly conference today, as it is in session in San Francisco. Tomorrow, the court will hear a long-anticipated argument in the wage and hour case Gattuso et al. v. Harte-Hanks Shoppers, Inc. (S139555)

Petition for review after the Court of Appeal affirmed orders in a civil action denying class certification. This case includes the following issue: May an employer comply with its duty under Labor Code section 2802 to indemnify its employees for expenses they necessarily incur in the discharge of their duties by paying the employees increased wages or commissions instead of reimbursing them for their actual expenses?

We won't be able to attend, but if any readers do, please consider emailing your notes to [email protected], as we would like to hear about and publish what was asked and argued. We don't know who will be arguing the case. The list of counsel appearing is long.


Review Denied in Three Employment Cases

The Supreme Court on Wednesday denied review in three cases we discussed in previous posts:

  • Eicher v. Advanced Business Integrators, Inc. (Labor Code § 1194 authorizes fees after trial de novo under Labor Code § 98.2; employer does not meet burden of establishing administrative exemption defense when employee has no personal effect on the policy or general business operations of employer or its customers; and paid time off does not count as "hours worked" for overtime damage calculations) discussed in a prior post here.
  • Haluck v. Ricoh Electronics ("circuslike" courtroom atmosphere is cause for reversal) discussed in a prior post here.
  • Giuliano v. Inland Empire Personnel, Inc. (contract-based wage claim of highly compensated individual not subject to Armendariz arbitration standards) discussed in a prior post here.

We thought Giuliano was an interesting case worth reviewing. The other two decisions, not so much.