Wage Law

Purportedly to avoid a full-blown fiscal crisis in California, Governor Arnold Schwarzenegger has signed an executive order that cuts the wages of 200,000 state workers to $6.55 per hour. The order will remain effective until the state passes a new budget. California State Controller Controller John Chiang has declared that he will not implement Schwarzenegger's order, and several employee unions have threatened to file suit to invalidate the order. California's current minimum wage is $8.00 per hour. Under the order, state employees will be paid the lower federal minimum wage under the FLSA. The order also eliminates 2,2000 part-time and temporary state jobs.

Emergency workers and certain other employees are exempt. Workers will receive back pay once the state legislature passes a budget. In other words, the state won't actually save money, it is simply borrowing at the expense of the working class and using them as pawns to motivate the legislature to resolve its differences. The full text of the governer's order is as follows:

EXECUTIVE ORDER S-09-08

WHEREAS the constitutional deadline for enacting a state budget for Fiscal Year 2008-09 has passed without the enactment of a budget; and

WHEREAS in the absence of a budget, State government is constitutionally prohibited from making payments that are not compelled by either the State Constitution or federal law; and

WHEREAS until there is a state budget, the State has no authority to pay the following payments:  (1) Vendors and Contractors for goods and services chargeable to Fiscal Year 2008-09; (2) Payroll for legislative staff, appointees, and exempt employees; (3) Payroll for other state employees beyond that required by federal labor law; (4) Highway User Taxes that are apportioned to the state, cities and counties for highway and road improvement projects; (5) Cal Grants to students in higher education; (6) Transfers to the Trial Courts; (7) Transfers to University of California, California State University, and Community Colleges; (8) Transportation Revolving Fund disbursements; (9) Non-revenue limit school payments; and (10) Payments for non-federally mandated social services programs such as Community Care Licensing, Adult Protective Services, State Only Foster Care; State Only Adoptions Assistance, and Cash Assistance Program for Immigrants; and (11) tax relief payments to low income seniors and disabled persons; and

WHEREAS on May 1, 2003, the California Supreme Court, in White v. Davis, issued a decision that, in conjunction with other pre-existing court orders, clarified that during a period that there is no state budget in place, federal labor laws require the State to pay its nonexempt FLSA employees either federal minimum wage or, for those employees that work overtime, their full salaries plus overtime; and

WHEREAS it is not known when a budget will be adopted for Fiscal Year 2008-09; and

WHEREAS as a result of the late budget, there is a real and substantial risk that the State will have insufficient cash to pay for state expenditures; and

WHEREAS since June 2008, the unprecedented number and size of fires in California has created states of emergency that have required additional and substantial expenditures of cash to ensure that there are sufficient resources to effectively fight these fires and save lives and homes; and

WHEREAS it is critical that the State be able to meet any unforeseen emergency such as fire, flood or public health emergency and to continue to make timely payments on constitutionally and federally-mandated obligations and existing obligations to pay holders of state bonds; and

WHEREAS due to the impending cash crisis and budget delay, the State may be forced to consider a Revenue Anticipation Warrant (RAW) at an exorbitant cost to the State, including hundreds of millions of dollars in credit enhancements, in order to make sure there is sufficient cash to pay for state expenditures; and

WHEREAS after the late adoption of a budget, there will be additional cash demands because all of the deferred payments that were not permitted to be made during the budget impasse will become due and payable; and

WHEREAS the late budget has resulted in loss of savings to the State in the amount of $164 million for July, and failure to enact a budget in August will result in additional loss of savings in the amount of $323 million; and

WHEREAS as a result of the late budget, additional mitigation measures must be implemented to offset the loss of savings and to ensure that there is sufficient cash to make the State’s payments; and

WHEREAS the State employs nearly 22,000 retired annuitants, permanent intermittent employees, and seasonal employees and the State hires new employees at the rate of approximately 1,700 per month; and

WHEREAS except for services and functions of state government deemed critical by this Order, additional mitigation measures need to be taken to immediately reduce expenditures and preserve cash, including the following: (1) halting all hiring, transfers and promotions of employees, and contracting for individuals to perform services; (2) prohibition of overtime; (3) termination of the services of retired annuitants, permanent intermittent employees, seasonal employees, temporary help workers and, student assistants; and (4) suspension of personal services contracts.

NOW, THEREFORE, I, ARNOLD SCHWARZENEGGER, Governor of the State of California, in accordance with the authority vested in me by the Constitution and the statutes of the State of California, do hereby issue the following orders to become effective immediately:

IT IS ORDERED that the services and functions of state government directly related to the preservation and protection of human life and safety, including but not limited to emergency and disaster response activities and the provision of 24-hour medical care, shall be deemed critical and exempt from this Order.

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order, all State agencies and departments under my direct executive authority take immediate action effective July 31, 2008 to cease and desist hiring of employees (except in instances in which there is a bona fide offer and acceptance prior to the effective date of this Order), transferring employees between State agencies and departments, promoting employees, and contracting for individuals to perform services.

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order and emergent situations to preserve and protect human life and safety, all State agencies and departments under my direct executive authority take immediate action to cease and desist authorization of all overtime for employees effective July 31, 2008.

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order, all State agencies and departments under my direct executive authority take immediate action to terminate the services of the following five categories of employees and individuals effective July 31, 2008:  (1) Retired Annuitants; (2) Permanent Intermittent Employees; (3) Seasonal Employees; (4) Temporary Help Workers; and (5) Student Assistants.

IT IS FURTHER ORDERED that except for services and functions of state government deemed critical and exempt by this Order and except for services provided pursuant to multi-year contracts for Information Technology systems and services, all State agencies and departments under my direct executive authority take immediate action to suspend all personal services contracts effective July 31, 2008.

IT IS FURTHER ORDERED that all Agency Secretaries and Department Directors shall take immediate action to implement this Order, and any other action that will reduce state expenditures.

IT IS FURTHER ORDERED that the Director of the Department of Finance shall establish an exemption process that Agency Secretaries shall utilize to determine if an exemption is justified based on critical services and functions, which may include either cost-reducing or revenue-producing services and functions that will help ensure that there is sufficient cash for the State to make its payments.

IT IS FURTHER ORDERED that Agency Secretaries and Cabinet-level Directors shall report their exemptions to the Cabinet Secretary and the Director of the Department of Finance within 24 hours of approving an exemption.

IT IS FURTHER ORDERED that the Director of the Department of Finance and Director of the Department of Personnel Administration shall work with the State Controller to develop and implement the necessary mechanisms, including but not limited to pay letters and computer programs, to comply with the California Supreme Court’s White v. Davis opinion to pay federal minimum wage to those nonexempt FLSA employees who did not work any overtime.

IT IS FURTHER ORDERED that the necessary mechanisms to ensure compliance with the White v. Davis opinion must be in place to be effective for the August 2008 payroll.

IT IS HEREBY REQUESTED that during this budget impasse, the State Treasurer shall take all actions necessary to maintain the State’s ability to pay its bond obligations, including payment of principal and interest with funds in the State Treasury, and shall take all actions that are necessary to protect the State’s funds and investments.

IT IS FURTHER REQUESTED that other entities of State government not under my direct executive authority, including the California Public Utilities Commission, the University of California, the California State University, California Community Colleges, constitutional officers, the legislative branch (including the Legislative Counsel Bureau), and judicial branch, assist in the implementation of this Order and implement similar mitigation measures that will help to preserve the State’s cash supply during this budget impasse.

IT IS FURTHER ORDERED that this Order shall remain in effect until such time as both a Fiscal Year 2008-09 Budget is adopted and the Director of the Department of Finance confirms an adequate cash balance exists to meet the State’s fiscal obligations.

I FURTHER DIRECT that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given to this Order.

IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this 31st day of July 2008.

ARNOLD SCHWARZENEGGER - Governor of California

The Court of Appeal has finally considered the merits of the appeal inCalifornians for Disability Rights v. Mervyn's LLC (2008) __ Cal.App.4th __, reversing the trial court's decision in favor of the retailer. The decision on the merits is not pertinent to wage and hour law, but the case's procedural history after
Proposition 64's revision to the Unfair Competition Law was of interest to any wage and hour plaintiff who asserted pre-Prop 64 representative claims for which certification was in doubt.

While this case was pending on appeal, the voters of California amended the statute under which the case had been prosecuted. The voters’ enactment, popularly known as Proposition 64, was passed in the California General Election on November 2, 2004, and went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) At the time this case was tried, the UCL authorized any person acting for the general public to sue for relief from unfair competition. (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 228 (Mervyn’s).) “Standing to bring such an action did not depend on a showing of injury or damage.” (Ibid.) Proposition 64 amended the UCL to limit private enforcement to those who have suffered injury in fact and have lost money or property as a result of such unfair competition. (Ibid.) Proposition 64 did not state whether this new limitation applies to pending cases. (Id. at p. 229.)

On December 6, 2004, Mervyn’s moved to dismiss this appeal upon the claim that Proposition 64’s change in standing requirements apply to pending cases. We denied the motion because new legislative enactments are presumed to operate prospectively, rather than retroactively, to avoid unfair impairment of existing rights and obligations. In July 2006, the California Supreme Court reversed our ruling, upon concluding that application of Proposition 64’s standing requirements to pending cases would not constitute a retroactive application of the law because the initiative measure did not change any existing rights or obligations. (Mervyn’s, supra, 39 Cal.4th at pp. 232-234.) While the measure “withdraws the standing of persons who have not been harmed to represent those who have,” it did not impair any rights because lack of standing is a jurisdictional challenge that can be raised at any time in a legal proceeding. (Id. at pp. 232-233.) The high court reversed our denial of Mervyn’s motion to dismiss the appeal and remanded the case to us “for further proceedings consistent” with its opinion. (Id. at p. 234.)

On remand to this court, CDR asked leave to move for substitution of plaintiff on appeal—it did not contend that it had standing to appeal in its own right as a party aggrieved by the judgment under Code of Civil Procedure section 902. We denied CDR’s request and granted Mervyn’s motion to dismiss the appeal for lack of standing by CDR. CDR petitioned for review in the Supreme Court. The Supreme Court granted review and transferred the case to us with directions to vacate our decision and to reconsider the cause in light of United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300 (United Investors) and Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 (Branick).

United Investors held that a plaintiff has standing to appeal dismissal of a UCL complaint following demurrer even if it has no authority to maintain its suit in superior court, because plaintiff “is sufficiently aggrieved by the dismissal of its complaint that it has standing to appeal under Code of Civil Procedure section 902.” (United Investors, supra, 125 Cal.App.4th at p. 1305.) Branick held that Proposition 64 does not forbid amendment of complaints in the trial court to substitute new plaintiffs for those who have lost standing under the new measure. (Branick, supra, 39 Cal.4th at pp. 241-242.) The “ordinary rules governing the amendment of complaints” apply. (Id. at p. 239.)

Upon reconsideration, we denied Mervyn’s motion to dismiss the appeal in a ruling we issued on April 17, 2007. We concluded that the two cases referenced by the high court, “when read in conjunction, lead to the following conclusion: CDR is a party aggrieved by entry of judgment against it and thus has standing to appeal the judgment even if CDR has no authority to maintain its suit in superior court (United Investors, supra, 125 Cal.App.4th at pp. 1304-1305); and, if CDR succeeds in its effort to reverse the judgment on appeal, it may seek leave in the superior court to amend its complaint to substitute a plaintiff who meets the Proposition 64 standing requirement.” (Branick, supra, 39 Cal.4th at pp. 240-244.) Mervyn’s petitioned for review in the Supreme Court, and the petition was denied on July 18, 2007.

The parties completed briefing on the merits of the appeal in January 2008, and the matter was argued and submitted for decision.

That decision involved yet another remand:

we conclude that a retailer does not meet its obligation to make its merchandise available to disabled individuals denied access to the retailer’s existing stores by constructing new and geographically distant stores that are accessible. Accordingly, we remand the case for consideration of appropriate alternative means for making merchandise available to disabled individuals who are denied physical access.

It all might be academic now, however, as Mervyn's filed for bankruptcy on Tuesday, automatically staying any claims against the retailer. You can review the full opinion in Californians for Disability Rights v. Mervyn's LLC here in pdf or word format.

The DLSE has published two new opinion letters, concerning money network checks and payroll/debit cards.

The Supreme Court today denied the petition for review in Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, an opinion regarding meal period and rest period claims and class certification. Bufil followed Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, and contained several passages that are difficult to reconcile with last week's opinion in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) (2008) ___ Cal.App.4th ___. We previously discussed the case in a post that can be found at this link.

The DLSE is making sure all of its hearing officers follow Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) (2008) ___ Cal.App.4th ___. Here is the memo that was sent out by Angela Bradstreet on July 25:

Binding Court Ruling on Meal and Rest Period Requirements

On July 22, 2008, the California Court of Appeal issued its decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum), (2008) ___ Cal.App.4th ___ , 2008 WL 2806613.  The court in Brinker decided several significant issues regarding the interpretation of California’s meal and rest period requirements.  The decision is a published decision, and its rulings are therefore binding upon the Division of Labor Standards Enforcement (DLSE).

The decision in Brinker included the following rulings regarding the interpretation of California’s meal and rest period requirements:

Meal Periods

• The court held that Labor Code § 512 and the meal period requirements set forth in the applicable wage order mean that employers must provide meal periods by making them available, but need not ensure that they are taken.  Employers, however, cannot impede, discourage or dissuade employees from taking meal periods.

• The court rejected the so-called “rolling five-hour” requirement as being inconsistent with the plain meaning of Labor Code § 512 and the applicable wage order.   An employer must make a first 30-minute meal period available to an hourly employee who is permitted to work more than five hours per day, unless (1) the employee is permitted to work a “total work period per day” that is six hours or less, and (2) both the employee and the employer agree by “mutual consent” to waive the meal period.   The court also found section 512 to plainly provide that an employer must make a second 30-minute meal period available to an hourly employee who has a “work period of more than 10 hours per day” unless (1) the “total hours” the employee is permitted to work per day is 12 hours or less, (2) both the employee and the employer agree by “mutual consent” to waive the second meal period, and (3) the first meal period “was not waived.”  

Employers are not required to provide a meal period for every five consecutive hours worked.   The court held that the employer’s practice of providing employees with an “early lunch” within the first few hours of an employee’s arrival at work did not violate California law, even though that would mean that the employee might then work in excess of five hours without an additional meal period.

Rest Periods

• The court held that the rest period requirements set forth in the applicable wage order mean that employers must provide rest periods, but need not ensure that they are taken.  Employers, however, cannot impede, discourage or dissuade employees from taking rest periods.

• The court held that employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period.   The court interpreted the phrase “major fraction thereof” to mean the time period between three and one-half hours and four hours and not to mean that a rest period must be given every three and one-half hours.   In so doing, the court rejected as incorrect a 1999 interpretation by the Labor Commissioner that the term “major fraction thereof” means an employer must provide its employees with a 10-minute rest period when the employees work any time over the midpoint of each four hour block of time.   The court ruled that the rest periods must be given if an employee works between three and one-half hour and four hours, but if four or more hours are worked, it need be given only every four hours, not every three and one-half hours.

The court also ruled that the applicable wage order rest period provisions do not require employers to authorize and permit a first rest period before the first scheduled meal period.  Rather, the applicable language of the wage order states only that rest periods “insofar as practicable shall be in the middle of each work period.”  Accordingly, the court concluded, as long as employers make rest periods available to employees, and strive, where practicable, to schedule them in the middle of the first four-hour work period, employers are in compliance with that portion of the applicable wage order.

The court relied upon the plain meaning of the Labor Code and applicable wage order provisions in making its determinations.  The court found persuasive the reasoning in the federal district court decisions in White v. Starbucks (ND Cal. July 2, 2007) 497 F.Supp.2d 1080 and Brown v. Federal Express Corp. (CD Cal. Feb. 26, 2008) 2008 WL 906517, and concluded that employers need not ensure meal periods are actually taken, but need only make them available.   The court distinguished the decision in Cicairos v. Summit Logistics, Inc. (2006) 133 Cal.App.4th 949, concluding that the facts in Cicairos established that the employer failed to make meal periods available to employees and that the court there only decided meal periods must be provided, not ensured.

All staff must follow the rulings in the Brinker decision effective immediately and the decision shall be applied to pending matters.  Please ensure that any wage claim filed with DLSE that has a meal or rest period issue is reviewed by your Senior Deputy prior to making any final determination on its merits.

The DLSE posted copies of the memo, with footnotes omitted above, in both pdf and word format.

DLSE quickly updated (pdf, doc) its Enforcement Policies and Interpretations Manual to reflect the decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) (2008) ___ Cal.App.4th ___. The decision was just three days when the revisions went into effective. Opinion Letter 1999.02.16 has been withdrawn.

The DLSE is now taking comments. If you believe that a section of the Enforcement Policies and Interpretations Manual or an opinion letter needs to be reviewed to determine if it should go through the regulatory process pursuant to the Administrative Procedures Act, you can submit comments to [email protected]. Any inquiries should mention a specific manual section or opinion letter number and explain specific concerns. The Division of Labor Standards Enforcement - Comments mailbox account has been established solely to take comments on the enforcement manual and opinion letters. All comments will be read and considered, but no responses to questions or specific advice will be provided.

According to a news report in the Sacramento Bee, California Governor Arnold Schwarzenegger threatened to sign an executive order today cutting the wages of more than 200,000 state employees to the federal minimum wage of $6.55. The order would provide that the balance of their wages would be paid once the state budget, due July 1, 2008, is passed.

The announcement caused quite a stir. Petitions were circulated, protests were planned and state Controller John Chiang announced that he would ignore the governor's order. "He will pay state workers the salaries that they have earned, and that's full salary," said Deputy Controller Hallye Jordan.

In addition to cutting salaries, including union and other contractually specified salaries, the order would require state agencies to stop authorizing overtime for most employees, impose a hard hiring freeze except for state jobs directly related to the preservation and protection of human life and safety, and suspend work for all retired annuitants, permanent intermittent employees, seasonal employees, temporary help workers, student assistants and some contractors.

As his deadline approached, the governor postponed the issuance of the order until at least Thursday.

The Supreme Court declined to published an opinion in Hoffman v. Uncle P Productions, a small wage and hour case that proceeded by default in the Superior Court and at the Court of Appeal.

Terry Hoffman and Mary Jo Devenney appeal the judgment entered in their lawsuit seeking wages, expenses and penalties due from defendant Uncle P Productions, LLC ("Uncle P"). We agree with appellants' contention that the trial court applied the wrong statute of limitations to their continuing wages claim, and so reverse the judgment.

In essence, the Court of Appeal confirmed that waiting time penalties have a three-year statute of limitations, paystub penalties have a one-year statute of limitations, an employee who gets stiffed completely for 99 hours of work has a minimum wage claim, one who makes $250 a day does not, and you don't necessarily get a larger award of attorney's fees in a default case just the default judgment is increased, if you already received a much higher award than the default fee schedule provides. Nothing controversial. No publication order.

The Supreme Court has decided to review County of Santa Clara v. Superior Court (Atlantic Richfield Co.) (2008) 161 Cal.App.4th 1140, wherein the Sixth Appellate District reversed a Santa Clara County Superior Court order prohibiting the county from hiring outside counsel on a contingent fee basis. We discussed the opinion in an earlier post you can find here.

The Fair Minimum Wage Act of 2007 amended the FLSA to increase the federal minimum wage in three steps. The first step raised the rate to $5.85 per hour last year. The second step goes into effect today, and raises the minimum wage to $6.55 per hour. On July 24, 2009, the final raise under act becomes effective, at which time the minimum wage in all 50 states will be at least $7.25 per hour. Employees in states with higher minimum wage rates under state law (e.g., California) will still be entitled to the higher rate under state law. Approximately 2 million workers will be affected by the change.

Predictably, the governor was pleased with the Brinker decision. He was so pleased that he issued a press release. It's very unusual for the governor to issue a press release discussing an opinion of the Court of Appeal, but then again, protecting employers from wage and hour cases is one of the governor's highest priorities. Of more interest to us is how the governor issuing such a press release further demonstrates the merit of a petition for review under CCRC Rule 8.500(b)(1):

(b)   Grounds for review The Supreme Court may order review of a Court of Appeal decision:

(1)   When necessary to secure uniformity of decision or to settle an important question of law;

Here's what the governor had to say:

Following the Fourth District Court of Appeal's decision in Brinker Restaurant Corporation v. Superior Court of San Diego, Governor Arnold Schwarzenegger issued the following statement:

"We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today's decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

In today's decision, the court held that employers must make meal periods available to employees and cannot impede, discourage or dissuade employees from taking meal periods. However, once made available, the employer is not obligated to police the employee's use of that time by ensuring that the employee takes the meal period.

http://gov.ca.gov/press-release/10273/

The repackaged opinion in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __ was finally published today. The opinion is 53 pages long, and as interesting as it is, I'm going to have to pass on the opportunity to do an in-depth analysis for the same reason that I missed a wage and hour class action mediation today - my son's birth. The opinion is just as pro-employer and just as adverse to class action litigation as the original opinion, which was vacated shortly after a petition for review was filed last October. The case can be summed up with the following excerpts from the opinion:

In this action involving alleged violations of laws governing rest and meal breaks, we are presented with the following question:  Did the trial court err in certifying this matter as a class action without first determining the elements of plaintiffs and real parties in interest Adam Hohnbaum, Illya Haase, Romeo Osorio, Amanda June Rader and Santana Alvarado's (collectively plaintiffs) claims against defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker International Payroll Company, LP (collectively Brinker)?

Reconsidering the matter following a transfer from the California Supreme Court and our vacating of the original opinion in this matter, we first recognize that "in light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed."  (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702.)   We also recognize mandatory rest and meal breaks have "have long been viewed as part of the remedial worker protection framework" designed to protect workers' health and safety.  (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy).)  In addition, we note that in construing the applicable statutes and regulations, we look to the plain language of the laws and interpret them in a manner consistent with the Legislature's intent.  (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.)

With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment.  Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.  We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.  Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.  Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class.

You can download the full text of Brinker Restaurant Corp. v. Superior Court here in pdf or Word format. If you do any wage and hour work, or any class action work, this is must reading until and unless the Supreme Court grants review.

Glancing over the opinion, I couldn't help but think that if this had been the first appellate decision in California concerning wage and hour class actions, there might never have been a second wage and hour class action. However, it was not the first, and Brinker disagrees with many prior opinions, most specifically, Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963, which it discussed at length, and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, which it did not even mention, and more generally, a string of cases which promote class actions as an efficient way to resolve wage and hour disputes and a string of cases which discuss the remedial nature of wage and hour laws in California. With Brinker and Cicairos presenting such starkly contrasting views on California law, with Brinker presenting so many novel ideas regarding wage and hour claims and class actions, and with so many U.S. District Court cases disagreeing with Cicairos and each other, this case looks like an outstanding candidate for Supreme Court review.

When English fails, Yiddish may come to the rescue. Arguing in a summary judgment motion in U.S. District Court in Boston, the defense counsel for Sherwin-Williams wrote, in a responsive pleading:

"It is unfortunate that this Court must wade through the dreck of plaintiff's original and supplemental statement of undisputed facts."

Plaintiff's attorneys responded with a motion to strike that could serve as a primer on practical Yiddish for lawyers:

PLAINTIFF'S MOTION TO STRIKE IMPERTINENT AND SCANDALOUS
MATTER

Plaintiff, by her attorneys, hereby moves this Court pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure to strike as impertinent and scandalous the characterization of her factual submission as "dreck" on page 11 of Defendant's Rule 56.1 Supplemental Statement of Disputed Facts, a copy of which is attached hereto as Exhibit A.

As grounds therefore, plaintiff states: For almost four years now, plaintiff and her attorneys have been subjected to the constant kvetching by defendant's counsel, who have made a big tsimmes about the quantity and quality of plaintiff's responses to discovery requests. This has been the source of much tsuris among plaintiff's counsel and a gontzeh megillah for the Court. Now, that plaintiff's counsel has, after much time and effort, provided defendants with a specific and comprehensive statement of plaintiff's claims and the factual basis thereof, defendant's counsel have the chutzpah to call it "dreck" and to urge the Court to ignore it.

Plaintiff moves that this language be stricken for several reasons. First, we think it is impertinent to refer to the work of a fellow member of the bar of this Court with the Yiddish term "dreck" as it would be to use "the sibilant four-letter English word for excrement." (Rosten, The Joys of Yiddish, Simon &Schuster, New York, 1968, p. 103). Second, defendants are in no position to deprecate plaintiff's counsel in view of the chozzerai which they have filed over the course of this litigation.

Finally, since not all of plaintiff's lawyers are yeshiva buchers, defendants should not have assumed that they would all be conversant in Yiddish.

WHEREFORE, plaintiff prays that the Court puts an end to this mishegoss.

We enjoyed reading it, but the story ultimately ended poorly for the plaintiff, against whom a summary judgment was rendered (Santiago v. Sherwin-Williams Co. (D.Mass. 1992) 794 F.Supp. 29) and affirmed Santiago v. Sherwin-Williams Co. (1st Cir. 1993) 3 F.3d 546.

Don't expect a worker-friendly environment at the California Labor Commissioner's office during the Arnold Schwarzenegger years. Shortly after the California Senate rejected his appointment as LWDA Deputy Secretary, Governor Schwarzenegger appointed him to a comparable position as deputy secretary general counsel for the LWDA. The position pays the same, and is nearly as influential, but does not require Senate confirmtion.

This is being received as good news by employers, but it is also good news, in a roundabout way, for all attorneys with a wage and hour practice. The Labor Commissioner's office will continue to be a place where employees cannot expect effective resolution of their wage and hour claims, leaving them with no good alternative to taking their claims to court.

The New York Times published an article this week regarding two very critical reports from the Government Accountability Office discussing the poor performance of the Wage and Hour Division of the Labor Department. The reports accuse the division of mishandling many overtime and minimum-wage complaints, delaying investigating hundreds of cases for a year or more (in some cases dropping them because the statute of limitations was running), reducing the number of enforcement actions it takes each year, and ignoring low-wage industries where violations are most common.

Wage and hour cases in state and federal court, both individually and collectively, are still increasing. One reason is because businesses continue to violate wage and hour laws with great regularity. The other reason is because the state and federal agencies charges with enforcing the FLSA and state labor laws are doing a poor job of policing employers, forcing the aggrieved employees to seek their own remedies with private attorneys. The article, which can be found at this link, details some of the more surprising findings in the reports, including statistics showing that in the past ten years, the number of cases handled by the Wage and Hour Division declined 37%, and the number of investigators in the division went down 22% from 2001 to 2007.

One particularly egregious example from the report described a case in which:

a pool maintenance technician had complained about not receiving a final paycheck. The employer admitted that it did not issue that check, but then berated the wage investigator, saying it would not pay the back wages. Afterward, the investigator dropped the case.

The Labor Department defended its performance, saying that the “Wage and Hour Division is delivering pay for workers, not a payday for trial lawyers.” We would disagree. If the DOL was doing its job, wage and hour trial lawyers would be out of business. Not only would employees not need to hire their own lawyers to pursue claims, but eventually, strong enforcement would make it unprofitable for businesses to cheat employees out of their wages, and compliance would increase. Fortunately for us, we don't see that happening any time soon.

One of the non-legal lawyer blogs we read is called Cranky Greg's View. Yesterday, Cranky Greg had an amusing take on a Wall Street Journal article entitled "Arbitration Works Better Than Lawsuits." It was more colorful than the tone we tend to use, but we didn't disagree with much of it.

The Supreme Court has extended its time to decide whether to grant or deny review in County of Santa Clara v. Superior Court (Atlantic Richfield Co.) (2008) 161 Cal.App.4th 1140. In the opinion, the Sixth Appellate District reversed a Santa Clara County Superior Court order prohibiting the county from hiring outside counsel on a contingent fee basis. We discussed the opinion in an earlier post you can find here. If you would like to review the petition, a copy of it can be found at the UCL Practitioner's post from May 20, when the petition was filed.

The Court of Appeal has affirmed the sustaining of a demurrer to a wage complaint brought by former chaplains at Santa Rita Jail in Alameda County, alleging violations of state laws regarding wage and hour requirements covering overtime, meal breaks and rest breaks, as well as to three fraud causes of action (intentional misrepresentation, concealment, and false promise). Curcini v. County of Alameda (2008) __ Cal.App. __. In the part of the opinion which is of interest to wage and hour practitioners, the court held that Labor Code §§ 510, 512, 226.7 and 1194 do not apply to charter counties such as the County of Alameda in the circumstances presented.

Charter counties have exclusive power under the California Constitution to determine the compensation of their employees. Cal. Const., art. XI, § 1, subd. (b); County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284-285. Thus, the court found it easy to determine that "Labor Code §§ 510 and 1194 relating to overtime pay address matters of “compensation” within the County’s exclusive constitutional purview pursuant to article XI, sections 1, subdivision (b), and 4." After some analysis, the court determined the same for the meal and rest break claims.

Appellants contend that meal and rest break claims relate to working conditions and not to compensation. Considered in a vacuum, the argument seems plausible. However, appellants are actually seeking monetary compensation for having been required to work through meal and rest breaks. As in our discussion of overtime pay, the link to compensation seems clear. As we have discussed above, our Supreme Court has recognized that in addition to the statutory language and its legislative history, the “compensatory purpose of the remedy” provided in Labor Code section 226.7 for violations of meal and rest period regulations, “compel the conclusion that the ‘additional hour of pay’ (ibid.) is a premium wage intended to compensate employees . . . .”

You can download Curcini v. County of Alameda here in pdf or word format.

Until last month, no California appellate decision had construed the requirements of any municipality’s living wage ordinance, or addressed the constitutional challenges to any such ordinances. Now, however, most of the defenses commonly raised when employers challenge living wage ordinances have been rejected in an opinion published last month by the First District Court of Appeal in Amaral v. Cintas Corporation No. 2 (2008) __ Cal.App.4th __. Amaral addressed the constitutionality and application of a living wage ordinance enacted by the City of Hayward and incorporated into its municipal contracts. Defendant Cintas entered into such contracts with the City, but did not provide the minimum wages or benefits required by the ordinance to employees who worked in the company’s stockroom or laundry production facilities, which are located outside the City of Hayward. Some of those employees filed a class action seeking the living wages due, benefits, civil penalties and waiting time penalties. On cross-motions for summary judgment, the trial court found that Cintas violated the ordinance, which was enforceable; that it breached its contracts with the City, and violated the Unfair Competition Law and numerous Labor Code provisions. The court awarded back wages and unpaid benefits, imposed penalties under the Private Attorneys General Act of 2004 and awarded plaintiffs statutory attorneys’ fees and costs. However, the trial court found that, prior to the determination of its legal duties under the new ordinance, Cintas’s conduct was not “willful” so as to justify waiting time penalties. The Court of Appeal affirmed all of the trial court's rulings. The opinion is most noteworthy for its analysis of the constitutionality and vagueness attacks on the living wage ordinance, but for wage and hour lawyers, its 60+ pages were full of interesting analysis of wage and hour issues.

At issue was Hayward's Living Wage Ordinance, which provides:

Service contractors subject to this Ordinance shall pay their employees a wage of no less than eight dollars ($8.00) per hour, if health benefits are paid to the employees, or nine dollars and twenty-five cents ($9.25) per hour if no such health benefits are paid.” (Hayward Mun. Code, § 2-14.020, subd. (c).) For purposes of the ordinance, an employee is defined as “any individual employed by a service contractor on or under the authority of any contract for services with the City . . . .” (Hayward Mun. Code, § 2-14.010, subd. (c).) Considering these two provisions together, the plain language of the ordinance requires contractors to compensate every individual they employ to perform work on or under a service contract with Hayward with a wage of at least $9.25 per hour, or $8.00 per hour if the employer provides health benefits.

The court first disposed of Cintas's constitutional arguments:

Cintas’s first constitutional challenge to the LWO rests on article XI, section 7 of the California Constitution, a provision which Cintas contends prohibits attempts by a municipality to exercise power outside its territorial boundaries. However, the language of the provision and cases interpreting it make it clear the prohibition applies only where a local government exercises its regulatory or police power, as opposed to its contracting or proprietary power. (Burns Internat. Security Services Corp. v. County of Los Angeles (2004) 123 Cal.App.4th 162, 168.
...
Cintas also argues the LWO is so vague that it violates due process under the federal and state constitutions. “[D]ue process of law is violated by ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (Britt v. City of Pomona (1990) 223 Cal.App.3d 265, 278.) It is true that the terms of the LWO do not spell out precisely how the ordinance will apply in situations where contractors perform work outside of Hayward or commingle an employee’s contract-related work with work for other customers. However, due process “does not . . . require that statutes must be drafted with the precision of a laser.” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 138.) “ ‘ “Reasonable certainty is all that is required. . . .” [Citation.] . . .’ [Citations].”

Cintas also contended that the plaintiff class members did not fit the LWO’s definition of employees because they rendered a service to Cintas, not to the City. The court noted that this argument was waived because it was not presented to the trial court, but went on to add that "[i]t is also nonsensical. ... When they laundered and maintained uniforms used by the City of Hayward, plaintiffs were carrying out Cintas’s obligations under service contracts with the City. Accordingly, these employees were working “on or under the authority of” a service contract."

The court rejected claims that the employees lacked a private right of action to enforce the living wage ordinance.

This issue has been addressed by courts of appeal in the analogous context of California’s prevailing wage law. (Lab. Code, §§ 90.5, 1720-1861.) This law requires that all contractors and subcontractors working on a public works contract must pay their employees the prevailing wage rate for work performed on the contract. (Lab. Code, §§ 1771, 1774.) Although the Labor Code imposes a statutory duty to pay prevailing wages and the prevailing wage law is incorporated into public works contracts, our Supreme Court has not yet decided whether employees have a right to enforce the prevailing wage law absent a specific provision in their employment contracts. (Department of Industrial Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 425 (Fidelity Roof); see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 969, fn. 5.) Two appellate court decisions have considered the issue, however, and both conclude aggrieved employees are third party beneficiaries who may sue to enforce a contractor’s promise to pay prevailing wages.

Cintas also failed in its claim that the enforcement of Labor Code penalties under the Private Attorneys General Act (PAGA), Labor Code § 2698 et seq., constituted an unlawful retroactive application of a new statute. PAGA went into effect on January 1, 2004. PAGA allowed aggrieved employees to recover Labor Code penalties directly from their employers, whereas only the Labor Commissioner could do so before. Because PAGA did not become effective until after plaintiffs filed their lawsuit, Cintas argued its provisions could not be applied retroactively. The trial court and the Court of Appeal disagreed.

In this case, the only effect of the new statute was to allow private parties—class members who are present or former employees of Cintas—to recover penalties that previously could have been recovered only by the state Labor Commissioner. This change did not increase Cintas’s liability in any way, because the Labor Commissioner could have recovered the same penalties for Cintas’s violations before the passage of PAGA. It does not matter that Cintas’s wrongful conduct occurred before PAGA was enacted because the legal consequences of this conduct remained the same. “A statute is retroactive if it substantially changes the legal effect of past events. [Citations.] A statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment. [Citations.]” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7-8.) Nor does it matter that Cintas may have expected to be held accountable for penalties to the Labor Commissioner instead of to plaintiff class members. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment [citation] or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” (Landgraf v. USI Film Products, supra, 511 U.S. at pp. 269-270, fn. omitted.) Because PAGA did not increase Cintas’s liability for Labor Code penalties, its application in this case was not retroactive.

The Court of Appeal also found support for this position in the Supreme Court’s decision in Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, regarding the effect of Proposition 64's amendment of the standing provisions of the unfair competition law.

The Court upheld the trial court's findings of violations of Labor Code § 223: “Where any statute or contract requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting to pay the wage designated by statute or by contract.”

The court addressed the meaning of "initial" violations under penalty provisions which increase for "subsequent violations". These statutes, which are substantially identical, provide for civil penalties as follows: "(a) For any initial violation, [fifty dollars ($50)] for each failure to pay each employee. (b) For each subsequent violation, or any willful or intentional violation, [one hundred dollars ($100)] for each failure to pay each employee...." The employees asserted that a violation occurs every pay period that an employee’s wages are underpaid, and that the first underpayment constitutes an “initial” violation, and all future pay periods are “subsequent” violations, penalized at the higher rate. Cintas argued that an employer could not be penalized at the higher rate for subsequent violations until it received some notice that its previous underpayment was a violation of the law. The court agreed with a different approach set forth in a February 22, 1984 DLSE memorandum.

an “initial” violation is “[a]ny violation occurring [after the penalty becomes law], regardless of whether penalties were assessed,” whereas a “subsequent” violation is “[a]ny violation which occurs after notice of a previous violation, regardless of whether penalties were assessed.” In describing how an investigating deputy should calculate penalties, the memorandum states: “If the violation is an initial violation, the citing officer will assess a penalty of $50 per each employee per each pay period. [¶] If the violation is a subsequent violation, the citing officer will assess a penalty of $100 per each employee per each pay period.”
...
The statutes state that a penalty for an initial violation is to be imposed “for each failure to pay each employee.” (§§ 210, subd. (a), 225, subd. (a).) This language conveys two things. First, by specifying a $50 penalty must be imposed “for each failure to pay each employee” (italics added), the language contemplates that an “initial violation” can result in more than one penalty at the $50 level. In other words, multiple $50 penalties can result from a single initial violation. The only way this could conceivably occur is if penalties are assessed at each pay period.
...
Until the employer has been notified that it is violating a Labor Code provision (whether or not the Commissioner or court chooses to impose penalties), the employer cannot be presumed to be aware that its continuing underpayment of employees is a “violation” subject to penalties. However, after the employer has learned its conduct violates the Labor Code, the employer is on notice that any future violations will be punished just the same as violations that are willful or intentional—i.e., they will be punished at twice the rate of penalties that could have been imposed or that were imposed for the initial violation. Accordingly, we conclude the trial court properly assessed penalties against Cintas under sections 210 and 225.5 at the rate of $50 per pay period per class member.

The court rejected Cintas's claim that the trial court incorrectly determined that it lacked discretion not to award civil penalties (as opposed to discretion to reduce them):

Sections 210 and 225.5 state that “every person who” fails to pay wages (§ 210) or unlawfully withholds wages due (§ 225.5) “shall be subject to a civil penalty” as described in the statute. The parties disagree about whether the trial court was required to impose penalties under sections 210 and 225.5, or whether it had discretion to forgo imposing any penalties because Cintas had a good faith dispute about whether wages were due. No authority brought to our attention supports Cintas’s claim of legal error. Cintas argues that a trial court imposing PAGA penalties can exercise its discretion based only on the considerations mentioned in section 2699, subdivision (e)(2). This argument rests on a misunderstanding of the nature of PAGA penalties: As we have explained, they are mandatory, not discretionary.

The court rejected Cintas's claims that the $258,900 penalty assessment was confiscatory.

The court received evidence that Cintas’s parent company had $2.81 billion in sales and $272 million in profits during fiscal year 2004. The penalty award is certainly not “astronomical” in comparison. (See, e.g., City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1318-1319 [approving $663,000 penalty for housing code violations, which represented about 28.4 percent of the defendants’ net worth].) The penalty award, which totaled less than one-third of plaintiffs’ $804,783 damage award, was also proportional to Cintas’s misconduct. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356 [punitive assessment should be proportional to defendant’s misconduct, sufficient to achieve penalty’s deterrent purpose, and not constitutionally excessive].)

Some of the statutory penalties sought by the plaintiffs, including waiting time penalties under section 203 and paystub penalties under section 226, are imposed only if an employers’ violation was “willful” or “knowing.” The trial court concluded that Cintas’s conduct was not “willful,” and it declined to impose or increase penalties under all provisions that include a “willfulness” component. The Court of Appeal followed Barnhill v. Robert Saunders & Co. (1981) 125 Cal.App.3d 1 and decided that the failure to pay wages was not “willful” because the legal duty to pay them was unclear at the time of the violation.

Even more so than in Barnhill, the legal obligations imposed on employers by the LWO were unclear at the time of Cintas’s violations. As Cintas’s vigorous defense of this class action has made clear, numerous arguments exist concerning the constitutionality of the LWO and its proper interpretation.

In so holding, the court distinguished the facts of this case from those in Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, where the presumption of good faith was outweighed by evidence that the employer was in fact aware that its employees were not being fully compensated for their time, and Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, where the employer’s legal obligation was clear and substantial evidence supported the lower court’s finding that the employer had acted in bad faith.

The court passed on the opportunity to address whether interest could be awarded on the restitutionary relief under the Unfair Competition Law claims pursuant to Civil Code § 3287(a), which provides for interest on an award of “damages certain, or capable of being made certain by calculation.” An award of interest was also authorized under the Labor Code for the wage claims, so the decision would have no practical effect on the judgment.

Finally, the court upheld the trial court's award of fees to plaintiffs’ attorneys based upon a lodestar multiplier of 1.65, which was less than the multiplier of 2.0 requested by the plaintiffs.

There certainly is a change that the Supreme Court will review this opinion, and the PAGA and other penalty issues add to the likelihood of review. Until and unless the case gets reviewed or depublished, however, it puts an end to the strongest and most frequently asserted defenses to living wage ordinances in California. You can download Amaral v. Cintas Corporation No. 2 here in pdf or word format.

The Supreme Court will review an unusual ruling in which a trial court compelled production of certain types of legal memoranda written by a party's attorneys. In Costco Wholesale Corp. v. Superior Court (2008) __ Cal.App.4th __, the Court of Appeal held that the trial court was correct to order Costco to produce portions of a pre-litigation attorney-client memo prepared for Costco by its outside counsel. We previously discussed the case in a post entitled Court Orders Production of Costco's Attorney-Client Communication in Overtime Class Action.

The statement of issues provides as follows:

#08-91 Costco Wholesale Corp. v. Superior Court S163335. (B197692; 161 Cal.App.4th 488, mod. 161 Cal.App.4th 1513c; Los Angeles County Superior Court; BC296369.) Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issues: (1) Does the attorney-client privilege (Evid. Code § 954) protect factual statements that outside counsel conveys to corporate counsel in a legal opinion letter? (2) Does Evidence Code section 915 prohibit a trial court from conducting an in camera review of a legal opinion letter to determine whether the attorney-client privilege protects facts stated in the letter?

We would not be surprised to see a reversal.

From the Associated Press:

(AP) - A judge has ruled against Wal-Mart in a class-action lawsuit, saying the discount retailer violated state labor laws 2 million times by cutting worker break time and "willfully" allowing employees to work off the clock.

Dakota County Judge Robert King Jr. on Monday ordered Wal-Mart to pay $6.5 million in compensatory damages, but Wal-Mart could end up paying more than $2 billion after a jury in October considers civil penalties and punitive damages.

The Internal Revenue Service has announced an increase in the optional standard mileage rates for the final six months of 2008. Taxpayers may use the optional standard rates to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

The rate will increase to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008. This is an increase of eight (8) cents from the 50.5 cent rate in effect for the first six months of 2008, as set forth in Rev. Proc. 2007-70.

In recognition of recent gasoline price increases, the IRS made this special adjustment for the final months of 2008. The IRS normally updates the mileage rates once a year in the fall for the next calendar year.

"Rising gas prices are having a major impact on individual Americans. Given the increase in prices, the IRS is adjusting the standard mileage rates to better reflect the real cost of operating an automobile," said IRS Commissioner Doug Shulman. "We want the reimbursement rate to be fair to taxpayers."

While gasoline is a significant factor in the mileage figure, other items enter into the calculation of mileage rates, such as depreciation and insurance and other fixed and variable costs.

The optional business standard mileage rate is used to compute the deductible costs of operating an automobile for business use in lieu of tracking actual costs. This rate is also used as a benchmark by the federal government and many businesses to reimburse their employees for mileage.

The new six-month rate for computing deductible medical or moving expenses will also increase by eight (8) cents to 27 cents a mile, up from 19 cents for the first six months of 2008. The rate for providing services for charitable organizations is set by statute, not the IRS, and remains at 14 cents a mile.

The new rates are contained in Announcement 2008-63 on the optional standard mileage rates.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

Mileage Rate Changes

Typepad seems to have gotten its act together again, so we're back in business.

We're delighted to let you know that we've just released some fixes that are specific to the new Compose editor. While the majority of TypePad members who are using the new editor have experienced no problems at all, we know that some of you have experienced some exceptionally frustrating errors. Our Support and Engineering teams have been working really hard, burning the midnight oil to address these issues and are excited to see them launched today. In addition to these fixes and those we released on June 11th, some additional fixes are forthcoming and we will keep you posted as we release them. All members who have the new Compose editor should receive an email giving details on the most recent fixes. You can also read about known issues and fixes on the Known Issues Blog. A huge thank you to everyone who has sent in feedback to our Support team and to our CEO Chris Alden. Our teams have reached out to many of you one on one and the information you've shared with us has been a tremendous help in our troubleshooting and beyond.

The new compose editor is still really slow, however, but we've been able to resolve that problem, somewhat pathetically, by using notepad.exe as our primary post composer.