Wage Law

In many overtime cases, even if liability is clear, if the employee was salaried, or alleges other off-the-clock hours, the parties often spend enormous amounts of time, energy and money trying to quantify damages by proving exactly how many hours of overtime an employee worked. Where the employer's pay or time records are inaccurate or incomplete and the employee cannot offer "convincing substitutes," the employee satisfies his or her burden by producing evidence sufficient to permit a just and reasonable inference regarding the extent of the overtime work. Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687, 66 S.Ct. 1187, 1192. However, the more detailed and reliable the evidence, the stronger the inferences you can draw about your time estimates.

Sometimes, the proof comes from unusual sources. Have you considered GPS? This article from Law Technology News suggests you might be using GPS more in the future.

Geopositioning will aid civil cases, too. The day is not long off when we will be able to place price fixers or cheating spouses in the same room, or calculate the speed, path and braking action of colliding drivers. We'll gauge exposure to environmental toxins, challenge a witness' ability to observe, calculate wage and hour abuses, prove an employee was asleep at the switch and precisely determine a claimant's proximity to an explosion.

As GPS-enabled cell phones become a 24/7 possession for more and more employees, the ability to determine exactly where employees were, and for how long, becomes more prevalent. Soon, it might be easy to figure out exactly how late those salaried non-exempt workers were staying at the office every day.

Before it becomes even more irrelevant, here's a list we compiled of commentary about Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25:

• Brinker International simply announced it as a "Favorable Ruling From California Court of Appeal"
• Shaw Valenza blogged: Brinker: The Watershed Meal Period Decision Comes Down
• The UCL Practitioner quoted from the Recorder: "Workers Can't Catch a Break from Calif. Court"
• and then published this analysis: REST BREAK AND MEAL PERIOD CLAIMS AFTER MURPHY V. KENNETH COLE PRODUCTIONS.
• Cal Labor Law blogged about "Brinker Court Favorably Resolves Dispute on "Providing" Meal Breaks"
• Storm was his usual cautious self with: Brinker: Not So Fast
• California Workforce Resource blogged about how there were Meal and Rest Break Requirements Clarified By Court in Brinker v. Hohnbaum
• The Complex Litigator had Meal break class actions dealt major blow in Brinker Restaurant Corporation, et al. v. Hohnbaum, et al.
• The Retail Law Observer had a post titled after the case name.
• Class Action Defense chimed in with the long title: Labor Law Class Action Defense Cases–Brinker v. Superior Court: California Appellate Court Reverses Trial Court Order Certifying Labor Law Class Action Holding Employers Need Not “Ensure” Employees Take Meal And Rest Breaks
• First Mediation's blog had this: The Clock is Ticking … The Future of Meal and Rest Break Class Actions Remains to be Seen
• Sheppard Mullin wrote: Appellate Court Clarifies Meal and Rest Period Obligations
• Crowell Moring published this alert: Anxiously-Awaited Brinker Decision Holds That Employers Need Not Police Whether Employees Take Meal Periods
• Mofo was quiet, for obvious reasons. They said what they had to say in a lunch seminar.
• Ford Harrison issued a Legal Alert: California Court of Appeal Clarifies Meal and Rest Period Requirements for California Employees
• Wilson Sonsini put out a WSGR alert: California Appellate Court Clarifies Employers' Obligations Regarding Meal Period and Rest Breaks
• Littler told us how they really felt with: A Ray of Hope: California Court of Appeal Decides Compliance with Meal Period Obligations Requires an Opportunity, Not a Guarantee
• Gibson Dunn wrote: State Court of Appeal Holds That California Employers Need Only "Provide" Meal Periods, Not Ensure That Employees Take Them
• Jones Day had: ALERT: California Appellate Court Holds that Meal Periods Must be Made Available to Employees; California Labor Commissioner Follows Suit
• Nixon Peabody published this pdf: A major break for California employers: Court rules on longstanding meal and rest period issues.
• McGuire Woods published New Major Decision Holds California Meal Period, Rest Period, Off-The-Clock And “Time Shaving” Wage Claims “Not Amenable To Class Treatment”
• Seyfarth Shaw wrote: Court Provides Better Meal Deal For California Employers

If we didn't include your blog or firm alert on this list, you need to read up on Google's search algorithms.

Last week, the Supreme Court granted review of the pro-employer meal period opinion in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25. Now comes Brinkley v. Public Storage, Inc. (2008) __ Cal.App.4th __, in which the Second District Court of Appeal also disagrees with Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 regarding the extent of an employer's duty to make sure employees can take their lunch breaks. The case also involves an issue regarding the need to prove intent and injury from a paystub violation. The appeal arises out of an order granting summary adjudication of three claims asserted in a certified class action pending in Los Angeles. The holding reads:

Plaintiff asserts class action and individual claims for violations of the Labor Code. He alleges that defendant, his former employer, provided paystubs containing misstatements in violation of Labor Code section 226. An employer, however, cannot be liable for misstatements on paystubs unless it knowingly and intentionally makes such misstatements and an employee suffers injury as a result. Plaintiff cannot prove either element in this case.

Plaintiff also asserts causes of action based on section 226.7 on the ground that defendant failed to ensure that plaintiff and other class members took all meal periods and rest periods they were entitled to take. California law, however, only requires that employers make available such periods, which defendant did here.

 We affirm the trial court’s order granting defendant summary adjudication with respect to plaintiff’s section 226 and section 226.7 causes of action.

On the more interesting issue concerning meal periods, the court followed White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1089, while attempting to reconcile itself with Cicairos.

The court noted that it would be impossible for employers with large work forces to enforce such meal breaks. (Ibid.) It further stated that “employees would be able to manipulate the process and manufacture claims by skipping breaks or taking breaks of fewer than 30 minutes, entitling them to compensation of one hour of pay for each violation.[ ] This cannot have been the intent of the California Legislature, and the court declines to find a rule that would create such perverse and incoherent incentives.” (Id. at p. 1089.) We agree with this analysis.

The court doesn't explain how it came to the conclusion that an employer with a large work force would find it impossible to schedule enforceable meal periods any more than it finds it impossible to schedule starting and quitting times for its employees, but in so doing, it found no triable issue of material fact as to whether the employer had met its burden.

The court also weighed in on the issue of meal period timing, stating that there is nothing in the law that mandates that a meal period occur "within the first five hours" of a shift.

Plaintiff argues that California law requires defendant to provide meal periods within the first five hours of a shift. We disagree. Nothing in the applicable statutes or wage order supports plaintiff’s position.

The evidence supporting the employer was summed up as follows:

In the present case, defendant produced substantial evidence that the employer provided meal periods to plaintiff and other meal period subclass members. Defendant showed that (1) defendant had a written policy providing for meal periods; (2) plaintiff and other managers were aware of this policy; (3) defendant reprimanded employees for not taking meal periods; and (4) defendant advised plaintiff and others at a meeting that they were required to take lunch and rest breaks. Defendant also produced 21 declarations of managers who worked for defendant. Each of these managers stated that they were allowed to take meal periods at their own discretion.

In response, the court found that the Plaintiff failed to meet his burden of showing a material issue of fact, supported by admissible evidence:

Plaintiff stated in a declaration: “I rarely if ever took timely rest breaks, that is a ten (10) minute break during the middle of any four (4) hour shift. As [an] hourly Bench Property Manager employee I was generally the manager on duty and could not take breaks.” We agree with the trial court that “[t]his is not an unequivocal statement that he was not authorized or permitted to take a ten-minute break every four hours.”

This is significant for at least two reasons: (i) the court essentially holds that "provide" means precisely the same thing as "authorize and permit", and (ii) the court expects clearer evidentiary facts to be set forth with specificity in the declarations. Worse for the plaintiff, an argument that might have carried the day was deemed waived:

Plaintiff claims on appeal that he and other employees were not allowed to leave the premises or lock the office during their meal periods. Such meal periods, plaintiff contends, were effectively “on duty,” and thus entitled employees to one hour of wages per meal period. (See Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 574.) Plaintiff, however, did not raise these facts or this argument in his brief or separate statement opposing defendant’s motion for summary adjudication. We therefore deem the argument waived. (City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493.)

Similar evidentiary issues plagued the plaintiff class's certified claims for rest period violations.

Plaintiff did not set forth any facts indicating that as a practical matter, he could not take rest breaks. Instead, he simply alleged that he “could not” do so, without describing any factual basis for this allegation. The closest plaintiff came was his statement that “[a]s a Bench Property Manager, I was required to be on the property at all times during my shift.” An employer’s requirement that an employee be “on the property” at all times, however, does not necessarily prohibit rest periods. Indeed, in many employment settings, there is no practical way for an employee to take a 10-minute rest period without staying on the property. Plaintiff therefore failed to raise a triable issue of material fact with respect to his rest period cause of action. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 329.) ¶ Moreover, plaintiff’s statement that he “could not” take rest breaks is a conclusory allegation and does not raise a triable issue of material fact. [our emphasis]

In other words, don't just say you can't take a break. Tell the court specifically why you can't take a break, so that the court can decide whether the employer is to blame.

Finally, on the issue of paystub violations under  Labor Code § 226, the court upheld the summary adjudication order because (i) plaintiff could not prove that the violations were intentional; and (ii) the violations did not cause any sort of injury. On the first point:

Defendant met its burden of production by filing a declaration stating that the misstatement of the associated mileage rate was inadvertent and, when discovered, corrected. This evidence showed that plaintiff could not establish an essential element of his claim, namely that defendant intentionally and knowingly failed to provide required information on its paystubs. The burden of production thus shifted to plaintiff. Plaintiff, however, produced no evidence of knowing or intentional conduct by defendant.

With respect to the second element, the court distinguished Brinkley's claims with those in Wang v. Chinese Daily News, Inc. (C.D.Cal. 2006) 435 F.Supp.2d 1042, which continues to stand as a good example of how a paystub violation can cause actual injury.

Plaintiff argues that the receipt of an inaccurate paystub ipso facto constitutes injury within the meaning of section 226, subdivision (e). This interpretation, however, renders the words “suffering injury” surplusage and meaningless. Such an interpretation is disfavored. (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1184.) We hold that section 226 means what it says: a plaintiff must actually suffer injury to recover damages or statutory penalties. The present case is distinguishable from Wang v. Chinese Daily News, Inc. (C.D.Cal. 2006) 435 F.Supp.2d 1042. In Wang, the paystubs stated that the employees worked 86.66 hours regardless of the number of hours actually worked, the length of the pay period, or the number of work days in the pay period. This caused the employees to suffer injury because they might not be paid for overtime work to which they were entitled and they had no way of challenging the overtime rate paid by the employer. (Id. at p. 1050.) Here, by contrast, plaintiff was not underpaid or given insufficient information to challenge the payments he received. This inadvertent technical violation of section 226 caused no resulting damages.

You can download Brinkley here in pdf or MS Word format. Mark your calendars for the last week in January, when the Supreme Court is likely to issue a "grant and hold" review order, deeming this a related case to Brinker Restaurant Corp. v. Superior Court.

Our spies tell us that Thelen, LLP's partners have been in a long meeting today to consider a recommendation from the firm's management that the firm dissolve and shut down operations by December 2008. The vote will remain open for some time, but it is expected that the partners will vote in favor of the dissolution. The firm was founded in 1924, and grew to more than 600 attorneys, before shrinking to its current number of approximately 400 lawyers. Thelen has an extensive employment defense practice, and one of our favorite cases was opposed by Thelen.

[Update: Law.com confirms it.]

[Update #2: Thelen confirms it.]

As wage & hour class action lawyers, we were drawn to this part of the press release:

Although not necessarily required, Thelen is seeking to pay its employees 60 days salary under federal and state WARN Acts. The firm is also seeking to pay all accrued vacation pay. The response to date from the bank is that it will fund employee salary through Nov. 30, but will not pay accrued vacation pay. Both of these issues are still under discussion.

There you have it - your daily dose of irony.

The Supreme Court has scheduled oral argument for Wednesday, December 3, 2008, at 9:00 a.m., in Los Angeles, in Meyer v. Sprint Spectrum L.P. (2007) 150 Cal.App.4th 1136 (Supreme Court No. S153846). In Meyer, the Fourth District Court of Appeal held that Proposition 64 created a two-part, standing test, and applied that test to bar claims by plaintiffs who were unable to show that the defendant had attempted to enforce the unlawful and unconscionable provisions in their agreements. The formal statement of issues on review reads as follows:

Petition for review after the Court of Appeal affirmed a judgment of dismissal of a civil action. This case presents the following issues: (1) Has a person suffered "damage" within the meaning of the Consumer Legal Remedies Act (Civil Code, section 1780, subd. (a)), such as to allow that person to bring an action under the Act if that person is a party to an agreement containing an unconscionable term (see Civil Code, section 1770, subd. (a)(19)), even though no effort has been made to enforce the unconscionable term? (2) Did plaintiffs have standing to seek declaratory relief?

Given that statement of issues, the opinion might be completely inapplicable to wage and hour cases, but it might also be broad enough to affect some unfair competition claims arising from illegal employment policies that have never resulted in discipline, as long as voluntary compliance by the employees has caused a monetary loss of some sort. Believe it or not, the scenario is not that unusual. We're following the case, therefore, for that reason and because we just like the idea of someone suing Sprint and winning.

Review was granted in August 2007.

An article this week in Business Week (Now Severance Packages Are on the Chopping Block As the economy swoons, some companies are cutting workforces—and severance benefits) describes how companies looking to save costs in a difficult market are reducing severance packages for employees on their way out.

A lot of employees believe that companies provide severance pay to satisfy some sort of legal obligation. That is not true. Unless a guaranteed severance package is part of a verbal or written agreement between employees and the employer, there is no legal duty on the employer's part to provide severance pay to an employee who is terminated or who resigns.

Bridgeport Continuing Education will be having a wage & hour litigation conference on December 2 & 3 in Los Angeles at UCLA's Covel Commons. I will be presenting the recent developments portion of the seminar. Registration fees are $575 until November 30, after which the fee will be $625. If you register two people, a third can attend for free. Here are the seminar details:

This one-and a half day program explores in-depth the critical aspects of Wage & Hour litigation with a focus on California and important cases such as Brinker, Sav-On, Gentry, Starbucks, Oracle and Kenneth Cole. Don't miss it!

Who Should Attend? This program is designed for both plaintiff and defense counsel and corporate counsel, litigators, counseling attorneys, insurance experts and litigation managers. The program will address Wage & Hour Litigation in the class action and non class action context.

PROGRAM AGENDA

Day One:
8:30 - 9:00 Registration & Continental Breakfast
9:00 - 9:05 Introduction and Opening Remarks
9:05 - 10:10 Recent and Important Case Law & Trends
   Michael Walsh of Walsh & Walsh
10:20 - 11:20 Overtime & Misclassification
   Keith Watts of Musick, Peeler & Garrett defense
   Rene Barge of the Class Action Litigation Group plaintiff
11:30 - 12:30  FLSA Collective Actions as an Alternative to CCP382/Rule 23
   Aashish Desai of Mower Carreon & Desai
Lunch Break
1:30 - 2:30 The Status of Meal and Rest Period Law in California after Brinker
   Cathy Conway of Akin Gump
   Virginia Miller of Call Jensen & Ferrrell
   Ellyn Moscowitz of the Law Offices of Ellyn Moscowitz
   Michael Singer of Cohelan & Khoury
2:30 - 3:30 Assessing the Merits of a Case: a Roundtable Discussion of Plaintiff Counsel
   Kevin Barnes of the Law Office of Kevin Barnes
   Michael Singer of Cohelan & Khoury
3:40 - 4:30 Obtaining Insurance Coverage for Wage & Hour Claims
   Kirk Pasich of Dickstein Shapiro

Day Two:
9:00 - 10:00 Understanding and Calculating Damages
   Joseph Krock, Ph.D. of The Claro Group
10:10 - 11:05 Conducting the Self-Audit
   Arthur F. Silbergeld of Proskauer Rose
11:15 - 12:15 Defense Counsel Roundtable: A Discussion about Defense Strategy, Discovery and Settlement
   Dan Forman of Manatt, Phelps Phillips
   Lynne M. Hook of Fox Rothchild
   Michele J. Beilke of ReedSmith

To register, call Bridgeport at (818) 783-7156, or download and mail the registration form, or register online. If you are going to attend, drop us a note. Mark and I would love to meet you.

We've found another wage and hour blog: overtimelaw.blogspot.com (News, education, and general information regarding overtime pay, the Fair Labor Standards Act, the Department of Labor, minimum wage, and court cases.) It has been published since July 2008 by Robert J. Wiley, a Texas attorney who is also licensed in California and Washington, D.C.

After the Supreme Court decided Gentry v. Superior Court (Circuit City Stores) (2007) 42 Cal.4th 443, it remanded the case so the trial court could make findings under the new standards it had announcedm for enforcement of arbitration agreement. On remand, Los Angeles County Superior Court judge Harold Cherness wrote a lengthy order denying Circuit City’s renewed motion to compel arbitration. The decision holds that the class action waiver, costs provision, a confidentiality provision, some discovery restrictions and the agreement's 1 year statute of limitations were all substantively unconscionable.

The DLSE memo issued July 22, 2008 July 25, 2008, by Angela Bradstreet, Denise Padres, and Robert Roginson has been withdrawn. A new memo, dated October 23, 2008, provides: "Effective immediately, neither the [Brinker] Court of Appeal decision nor the memo may be relied upon by any DLSE staff in deciding pending or future matters." However, in the same document, Labor Commissioner Angela Bradstreet essentially tells the staff to keep following the reasoning in Brinker, even though the Supreme Court’s grant of review supersedes the Court of Appeal’s decision, and the Court of Appeal decision may not be cited or relied on by a court or a party in any other action. (California Rules of Court 8.1105(e) and 8.1115(a)).

"Until such time that the Supreme Court provides guidance on this fundamental question, the Division will rely upon the language of the statute and wage order as well as existing California Supreme Court and Court of Appeal decisions and other recent, persuasive federal court decisions in interpreting Labor Code section 512 and the meal period provisions set forth in the applicable wage orders. Taken together, the language of the statute and the regulation, and the cases interpreting them demonstrates compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken."

The memo instructs employees to follow Brown v. Federal Express Corporation(C.D.Cal. 2008) 249 F.R.D. 580, 585, and to disregard the only binding precedent in California, Cicairos v Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962, because its "interpretation of California’s meal period requirements is not compelling."

On the issue of meal period timing, the memo observes that the DLSE "has varied in its interpretation of this so-called 'rolling five' hour rule in the past, [and] there is no controlling legal authority interpreting California’s meal period regulations to require employers to provide meal periods every five hours." Consequently, until a binding appellate opinion interprets the wage orders and Labor Code § 512 to require employers to provide meal periods every five hours, the DLSE "will not interpret California’s meal period provisions in that fashion." Instead, the DLSE position will be that:

• The first meal period provided by an employer must commence prior to the end of the fifth hour of work, unless otherwise expressly permitted by the applicable wage order; and

• Except as required in Labor Code § 512(a) and Section 11(B) of those wage orders requiring a second meal period, there is no obligation for employers to provide additional meal periods during the course of the workday, including instances in which employees work for a period of more than five hours of work between meal periods.

The memo concludes with the instruction that "any wage claim filed with DLSE that has a meal period issue is reviewed by your Senior Deputy prior to making any final determination on its merits." To us, this sounds a lot like an underground regulation adopted without complying with APA requirements. More importantly, many low-income workers who rely upon DLSE enforcement of their complaint will suffer in the next 18-24 months as we wait for the Supreme Court to decide Brinker.

The Supreme Court has posted the following statement of issues in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25:

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers.

NOTE: The statement of the issues is intended simply to inform the public and the press of the general subject matter of the case. The description set out above does not necessarily reflect the view of the court, or define the specific issues that will be addressed by the court.

It looks like anything and everything in the briefs is up for discussion.

Next week in San Francisco, the American Conference Institute presents its annual Wage and Hour Litigation Conference at the Sheraton Fisherman’s Wharf. The main conference is October 28-29, 2008, with a Fundamentals of Wage and Hour Law workshop beforehand, on October 27. You can request a brochure in PDF at this link. The cost of the seminar is $2,195, with another $600 if you want to attend the workshop. We've attended this seminar before. The materials are good, most of the speakers are good. However, the defense lawyers speaking at ACI seminars sometimes hold back when they see plaintiff's attorneys in the crowd, and we've actually seen a speaker, at an ACI seminar concerning the defense of wage and hour class actions, respond to questions by agreeing to answer later in private, so that the information isn't heard by the plaintiff's lawyers in attendance.

Governor Schwarzenegger has signed a bill to significantly revise the way certain computer software professionals can be paid. An odd quirk in California's overtime laws allowed employers to avoid paying overtime to certain computer programmers, analysts and engineers, but only if they were hourly employees, and were paid for all of their hours of work. Employers wanted to be able to put such employees on salaries without losing the exemption. Assembly Bill 10 accomplishes that goal. It amends California Labor Code § 515.5 to apply the overtime exemption to qualifying computer programmers, analysts and engineers who are paid a monthly salary of $6,250 or more each month ($75,000 annually, excluding bonuses). Alternatively, employers can keep the employees on an hourly basis and enjoy the exemption if the employees are paid at least $36 per hour for all hours worked. The bill was passed as urgency legislation* and is already in effect.

The compensation test will be given annual CPI adjustments, but can always be legislated back down, as happened last year when the hourly rate was suddenly reduced to $36. Section 515.5's compensation requirements started at $41 per hour in 2000; annual CPI increases brought the rate to $49.77 by 2007. The reduction to $36 per hour became effective January 1, 2008.

The Animation Guild Blog has a roll call listing every aye and nay vote.

Section 515.5 now reads:

(a) Except as provided in subdivision (b), an employee in the computer software field shall be exempt from the requirement that an overtime rate of compensation be paid pursuant to Section 510 if all of the following apply:

   (1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.

   (2) The employee is primarily engaged in duties that consist of one or more of the following:

   (A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
   (B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.
   (C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

   (3) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. A job title shall not be determinative of the applicability of this exemption.

   (4) The employee's hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The Division of Labor Statistics and Research shall adjust both the hourly pay rate and the salary level described in this paragraph on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

(b) The exemption provided in subdivision (a) does not apply to an employee if any of the following apply:

   (1) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer
systems analysis, programming, and software engineering.

   (2) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.

   (3) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.

   (4) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not engaged in computer systems analysis, programming, or any other similarly skilled computer-related occupation.

   (5) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs.

   (6) The employee is engaged in any of the activities set forth in subdivision (a) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.

*This "urgency" legislation was introduced in December 2006, amended seven times over the next 19 months, and passed in September 2008 as part of the budget compromise.

Earlier this month, Federal District Court Judge Consuelo Marshall awarded attorneys fees of $3,515,985 in Wang et al v. Chinese Daily News Inc et al, U.S. District Court, Central District of California, case number 2:04-cv-01498-CBM-JWJ. Plaintiffs Lynne Wang, Yu Fang Ines Kai, and Hui Jung Pao, on behalf of themselves and all others similarly situated, filed this suit on March 5, 2004, alleging multiple labor violations by Defendant Chinese Daily News, Inc. pursuant to the Fair Labor Standards Act ("FLSA"), the California Business and Professions Code § 17200 et seq. and the California Labor Code. The plaintiffs were awarded a total of more than $5 million after a jury and bench trial verdict in favor of the Chinese Daily News workers. In the fee order, Judge Marshall applied a multiplier of 1.5 and affirmed hourly rates of $425 to $575 per hour. We previously talked about the case in posts here and here.

The Supreme Court granted review today in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25. Justice Werdegar was absent for this week's conference. The vote among the participating justices was 6-0 in favor of review.

We discussed the opinion when it was published in July; we saw this review coming,

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.

Judging from past performance under the Schwarzenegger administration, which is undoubtedly disappointed by today's decision, the DLSE enforcement memo, on the need to change policies because of Brinker, will probably stay in place until and unless a court invalidates it.

The petition for review is fully briefed in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25. Within three weeks, the court will grant review, deny review or issue an order extending their time to decide. So far, there are a dozen letters on file urging the court to review the case, including one from the California State Legislature and the Attorney General. If review is denied, there will be a lot of discussion about this case in your year-in-review seminars concerning employment litigation, wage and hour law and class action procedures. If review is granted, this will be the most highly anticipated wage and hour case since Gentry v. Superior Court (Circuit City Stores) (2007) 42 Cal.4th 443.

September was a slow month for blogging because it was a busy month for everything else. Our experience, and what we've been hearing from other wage and hour lawyers is that the economy is increasing workloads. More employers are cutting corners, more unemployed workers are talking to lawyers and more people are pursuing wage claims. That doesn't mean that wage and hour work is recession-proof. We know of several wage and hour class action settlements that fell apart or resulted in unpaid judgments as defendant banks, retail and restaurant chains have gone under, and we've seen several motions to withdraw for lack of payment of fees.