ACI is presenting its 18th National Forum on Wage & Hour Claims and Class Actions on Wage & Hour Claims and Class Actions in May 2013 in New York, NY. The conference takes place at One UN New York on May 31 and 31. Here is a synopsis of the conference:
The wage and hour landscape continues to evolve at a blistering pace, with the potential for damaging claims at an all-time high. That is why it is essential that defense counsel be fully prepared for the coming tidal wave of claims and class actions. Come join your colleagues and clients at the nation’s premier wage and hour defense forum and hone the skills and strategies needed to keep pace with this rapidly changing area of law, defend against new and innovative claims, and prepare for emerging regulations and evolving enforcement priorities.
American Conference Institute’s 18th National Forum on Wage & Hour Claims and Class Actions will provide you with an unparalleled opportunity to convene with expert in-house counsel from Walmart, Coca-Cola, Bank of America, Microsoft, Home Depot, U.S. Bank, Dow Jones & Co., American Airlines, Darden Restaurants, Covidien, Cisco Systems, Wells Fargo, Marsh & McLennan, RBS, Kaplan, IBM, The Hartford, DIRECTV, Family Dollar Stores, TIAA-CREF, Reed Elsevier, and AXA Equitable, as well as renowned federal and state judges, top government officials, and leading outside defense counsel from around the nation, who will provide you with expert advice, insider strategies, and comprehensive updates on:
- Assessing the impact of Wal-Mart v. Dukes and its progeny on FLSA collective actions, Rule 23 class actions, and hybrid cases
- Obtaining decertification of a class at different stages of the litigation process
- Overcoming the complexities of managing and defending against multidistrict litigation
- Managing and defending against the latest claims from the plaintiffs’ bar
We've been to this seminar before, and it was a valuable experience. It's good for a minimum of 7.75 hours of California MCLE credits, plus another 2 hours for each focus session.
The list of topics and speakers is impressive. A complete brochure can be downloaded here. If we're not in trial, we'll see you there.
ACI is presenting its 14th annual National Conference on Wage & Hour Claims and Class Actions in January 2012 in Miami, Florida. The conference takes place at the Hyatt Regency Miami (an excellent place to spend time in January) on Monday, January 30 and Tuesday, January 31, 2012. Here is a synopsis of the conference:
The wage & hour landscape has been turned upside down post-Wal-Mart v. Dukes and AT&T Mobility v. Concepcion. Your colleagues and clients will be in Miami in late January to hone their skills and knowledge needed to succeed in this rapidly expanding and evolving area of law, adapt to emerging regulations and changing enforcement priorities, and respond new and innovative claims. Join them to ensure that you are prepared to navigate and defend against the leading type of class action in the country.
The sheer number of wage and hour claims and class actions across the country is staggering. Wage and hour class actions are the leading type of class action nationwide – and by a large margin. With so many of these cases getting certified and succeeding at trial, compliance and prevention are equally important to trial strategy. The Obama administration continues to send a strong signal that it is making wage and hour enforcement a priority, and it is clear that preventing, managing, and defending these claims remains a key issue for companies across the nation.
It is with this in mind that ACI has developed its 14th National Forum on Wage and Hour Claims and Class Actions, the nation’s premier forum for in-house counsel, labor and employment attorneys, and class action lawyers. We have assembled an extraordinary faculty of attorneys from the nation’s top firms, a full panel of distinguished jurists, and in-house counsel from CBS, Bank of America, IBM, Ryder System, Bayer, Citigroup, Canam Steel, Family Dollar Stores, Northrop Grumman, Interval International, Coca Cola, Ally Financial, PSEG, DHL Global Forwarding, Viacom, Paychex, Direct TV, and many others. Our unparalleled faculty will provide you with expert advice, insider strategies, and comprehensive updates on all of the latest developments, including:
- Complying with and responding to changing Wage & Hour Federal and State Priorities and Investigations
- Clarifying the standards and requirements for class certification in light of Wal-Mart v. Dukes
- Using AT&T Mobility v. Concepcion and arbitrations agreements as a tool to avoid class treatment
- Determining when employees are “on the clock” and avoiding overtime claims in the digital work world
- Examining recent rulings by courts and the DOL to ensure proper classification of employees
We've been to this seminar before, and it was a valuable experience. It's good for 12.25 hours of California MCLE credits, plus another 2 hours for each workshop (with workshop B counting toward ethics).
Here's the best part - a discount for our readers:
We've agreed to be one of ACI's media partners for this conference so that our readers can get a $200 discount off the current price tier. Use discount code WLB 200. Register by Thursday (November 17, 2011) for early bird pricing. Rates increase after November 17 and after January 5. The walk-up price for this conference is $2,295 (additional registration fees apply for the two workshops), but as a Wage Law reader, if you act by November 17, 2011, you can get in for $1,795.
The list of topics and speakers is impressive. A complete brochure can be downloaded here. If we're not in trial, we'll see you there.
Bridgeport Education's 2012 Wage & Hour Litigation and Management Conference will be December 13-14 at the Westin Bonaventure Hotel, located at 404 S. Figueroa St. Los Angeles. We've seen this conference before, both as speakers and as attendees. It's usually very good.
Topics include:
ACI is hosting another International Labor and Employment Conference in New York City on October 29-30th, 2012.
With an increasing number of American-based companies becoming multinational, international labor and employment law has become more important than ever. American Conference Institute’s International Labor & Employment Law conference will provide attendees with advice and insights from leaders in the field. Topics to be covered include:
Bridgeport is hosting its 8th annual wage & hour conference at the Biltmore Hotel in Los Angeles December 15-16. The conference has a good mix of plaintiff and defense counsel on its panels, and we've both attended and spoken at prior Bridgeport conferences and found them to be worthwhile. There's a lot of new information, particularly in the areas of arbitration and class action litigation, and its possible, though unlikely, that there will be a new Brinker decision for discussion by the time this conference comes around in two weeks. Here's what Bridgeport has to say about their program:
Brinker has been heard and the landscape of wage & hour litigation has changed in the aftermath of AT&T Mobility LLC v. Concepcion and Dukes v. Wal-Mart. Bridgeport’s Annual Wage & Hour program explores in-depth the critical aspects of Wage & Hour litigation with a focus on current practice. The two day program explores in detail the critical aspects of Wage & Hour litigation in both the single case and class action context. The well-balanced program offers the perspective of very experienced litigators. This two day program is chaired by Arthur Silbergeld of Dickstein Shapiro and Aashish Desai of Mower, Carreon & Desai.
For more information, check out their website here.
Bridgeport's Annual Mid-Year Wage & Hour Litigation Conference will be held June 3, 2011 at the Westin San Diego. I've been to this program before, and have presented a few times, and I've always come away with some valuable new insights. The presentations this time will include recent trends and cases, derivative claims, PAGA and 17200 claims, recent developments in class certification, and strategies for settlement of individual and class actions in wage & hour cases. Expect a lot of discussion of the recent AT&T v. Concepcion case. For more information or to register, visit Bridgeport's website.
There is a free one hour teleseminar on Thursday, May 19, 2011, and again on Friday, May 20, 2011, put on by the Public Justice Foundation, concerning the implications of the U.S. Supreme Court decision in AT&T Mobility v. Concepcion. The seminar will address issues relevant to attorneys advocating for the class. If you represent plaintiffs in consumer or employment class actions and you would like more information about this seminar, email me at [email protected].
Bridgeport Education's 2010 Wage & Hour Conference is set for October 7 and 8, 2010, in San Francisco at the Hyatt Regency, located at 5 Embarcadero. Topics will include recent developments, hybrid FLSA - state law collective and class actionsm, class certification, Brinker, discovery, independent contractor classification, arbitration, mediation and settlement of individual and classwide wage and hour claims.The programs are usually pretty good. For further information, or to register, clink on this link or call (818) 783-7156.
The University of Pittsburgh Law School is hosts a conference next Friday, February 20, 2009 entitled The Gender Wage Gap: Strategies for the Future. The conference agenda addresses the following:
Why do women still earn so much less than men? Why is the gender wage gap significantly worse in Pittsburgh and Southwestern Pennsylvania? What new legal and policy strategies might help to address these persistent inequalities? Nationally recognized scholars in law, economics, and public policy will address these questions, with responses by state and local political and nonprofit leaders and by a panel of prominent women graduates of the University of Pittsburgh College of General Studies.
With the enactment of the Lilly Ledbetter Fair Pay Act of 2009, the topic is timely, so if you need to get back up to speed on equal pay issues, or you've just been looking for an excuse to take a tax-deductible trip to Pittsburgh in the middle of winter, check it out.
There will be a full day Wage & Hour Seminar presented by the U.S. Department of Labor in two weeks, sponsored by Workforce Development and Continuing Education The University of Akron. The good news: It's cheap - $35. The bad news: It's in Akron, Ohio. But surely some of you are looking for an excuse to take a tax-deductible trip to Ohio in February, right?
When: February 20, 2009, 8:30 a.m. to 3:30 p.m.
Where: Student Union, Room 312, University of Akron, Akron, OH 44325-4104.
To register, download this form and send it in.
For more information, check out: http://www.uakron.edu/ce/docs/SP09-DOLbrochureUAandJobCenter.pdf
CAOC's Third Annual Class Action Seminar: Class Action Hurdles From The Plaintiff’s Perspective will take place next Wednesday, January 28, 2009 at the Sir Francis Drake Hotel,450 Powell Street, San Francisco. Topics will include:
The seminar is presented by Consumer Attorneys of California College of Trial Arts and the San Francisco Trial Lawyers Association, sponsered by Gilardi & Company LLC and co-sponsored by the Bar Association of San Francisco and The Impact Fund. Attendees will received four hours of MCLE credit, including one hour of ethics. For a printable registration form, download the PDF at this link, or register online at this link.
The NELA 2009 Annual Convention will be held June 24-27, 2009 in Rancho Mirage, California at the the Westin Mission Hills Resort. This will be NELA's 20th Annual Convention. The two previous conventions were in San Juan, PR and Atlanta, GA. If you are a California lawyer, this is probably an easy road trip for you.
Next week, the National Constitution Center will present a 60-minute audio conference entitled "Complex Wage & Hour Law: Are you State, Federal & FLSA Compliant?" The conference will take place on Wednesday, November 19, 2008, beginning at 1:00 p.m. EST (10:00 a.m. PST). The topics will include:
- New developments in State & Federal wage and hour law
- Strategies to correct time-keeping and pay practice errors
- Policies and procedures necessary to avoid liability and
- The Most Common Classification "Gotcha's" - and How to Avoid Them
The speaker will be Michael Gray, from Jones Day's Chicago Office. The program costs $199. Extra listeners are free. You can register online or by calling 800-859-8676.
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.
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 ShapiroDay 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.
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.
Do you have interns? Or do you have a group of young employees who are being denied minimum wage? The answer might be more complex than you think, according to this recent article in the California Lawyer.
The State Bar Labor & Employment section is hosting a one hour telephone seminar on Friday entitled "Brinker: the End of California Meal and Rest Break Litigation or Only the Beginning?" The speakers will be William Sailer and Miles Locker, who argued Brinker as amicus for the respective sides. William Sailer is Senior VP and Legal Counsel for Qualcomm Inc. and served as amicus counsel on behalf of the employer. Miles Locker is former DLSE Chief Counsel and served as amicus counsel for the employees. The seminar costs $45 and is good for one hour of MCLE credit. For further information or to register, check out this link.