TGI Friday's California Class Action

After a fight of more than seven years, justice prevailed. The Orange County Superior Court gave final approval to the class action settlement on behalf of the employees of T.G.I. Friday's (Main Street and Main, Incorporated, Main Street Restaurant Group, Inc. and Briad Restaurant Group) on January 7, 2011. The settlement has funded and checks have gone out to all of the employees who submitted their claim forms on time. On behalf of the named plaintiffs and the class counsel, we thank the hundreds of employees who provided us with sworn statements and deposition testimony. Without your help, this wouldn't have been possible.

If you submitted your claim on or before September 13, 2010, but have not received your check, please contact the claims administrator at

Rust Consulting, Inc.
625 Marquette Ave., Suite 880
Minneapolis, MN 55402-2469
[email protected]
Toll free (877) 690-7091

If you have any other questions regarding this settlement, or if you have a problem with your current employer refusing to provide breaks, refusing to pay overtime or other wages, or requiring you to pay for your own uniforms or supplies, contact Michael J. Walsh at (714) 544-6609, or send an email to [email protected].

For the latest developments in California wage and hour law and other employment law issues, check out our blog at www.californiawagelaw.com.


California Delivery Drivers' Class Action - SETTLED

The settlement of our California wage and hour class action on behalf of delivery drivers and route sales representatives for Bimbo Bakeries USA has been given final approval by the United States District Court for the Northern District of California and has been fully administered and paid. The deadline to submit a claim was May 7, 2010. We thank the class members and workers who assisted us in the case. Without your help, none of this would have been possible.

If you submitted your claim on or before May 7, 2010, but have not received your check, please contact the claims administrator at

Simpluris, Inc.
3176 Pullman Street, Suite 123
Costa Mesa, CA 92626
Toll free (800) 779-2104
Email Krista Tittle
[email protected]
 

We are no longer seeking statements from class members. If you have any other questions regarding this settlement, or if you have a problem with your current employer refusing to provide breaks, refusing to pay overtime or other wages, or requiring you to pay for your own uniforms or supplies, contact Michael J. Walsh at (714) 544-6609, or send an email to [email protected].

For the latest developments in California wage and hour law and other employment law issues, check out our blog at www.californiawagelaw.com.


Wage & Hour Division Collects Over $185 Million in 2008

The U.S. Department of Labor’s Wage and Hour Division announced that it recouped back wages totaling $185,287,827 in fiscal year 2008, for 228,645 workers, nationwide. The recovery actually represents a decrease from fiscal year 2007. But congratulations to the Department of Labor nonetheless. In 2008, they collected almost 11 times as much in unpaid wages as our law firm did.


El Torito Class Action Settlement Approved

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

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


Review Denied in Andrade v. Dollar Tree

The Supreme Court today denied review of an unpublished opinion of the Fourth District Court of Appeal adhering to La Sala v. American Savings & Loan Association (1971) 5 Cal.3d 864 and its minimum standards for dismissing a yet-to-be-certified class action where the lead plaintiff is determined to be unsuitable to continue to represent the class.

In Andrade v. Dollar Tree Stores, Inc., the lead plaintiff accepted his share of a settlement in a related class action which addressed the claims of only part of the class that he had sought to represent. The defendant brought a motion to dismiss, and another putative class member simultaneously sought to intervene or join the suit as class representative in an amended complaint. The class urged the trial court to follow La Sala, which held that, if a court concludes that the plaintiff can no longer represent the class, "it should at least afford plaintiffs the opportunity to amend their complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative." However, the trial court chose not to follow La Sala, and dismissed the action, holding that putative class members have no right to intervene in or amend the pleadings in an action which has not yet been certified. On appeal, the Fourth District Court of Appeal reversed the trial court's order in full, and remanded with instructions to file the proposed first amended complaint.

The petition for review sought to make it significantly easier for defendants to obtain dismissals of class actions before a certification hearing and without any adjudication on the merits of the cases. A letter brief joining in the request for review was filed on Dollar Tree's behalf by the California Employment Law Council, an employment defense organization headed by the law firm of Paul, Hastings, Janofsky & Walker LLP.

Any current or former retail store workers at any California Dollar Tree store can get more information by contacting us here. We'll be posting copies of the Supreme Court briefs on our website dollartreeclassaction.com within the next few days.


Notices Sent Out in TGIF Class Action

After numerous stays (lifted), motions for reconsideration (denied), motions to strike (denied), motions for summary adjudication (denied) and a petition for writ of mandate (denied), notices were sent out this week to all class members in our case against Main Street Restaurant Group, the largest franchisee of TGI Friday's restaurants. Anyone who worked at a California TGI Friday's owned or managed by Main Street and Main (now known as Main Street Restaurant Group, Inc.) from January 1999 to the present should receive a notice in the mail this month. Anyone in that group who does not receive his or her notice by the end of the month should contact the third party administrator, Rust Consulting:

Rust Consulting, Inc.
625 Marquette Avenue, Suite 880
Minneapolis, MN 55402 USA
Toll-free: 800-999-7940
Phone: 612-359-2000
Fax: 612-359-2050
E-mail: [email protected]
http://www.rustconsulting.com

This was the first large rest period class action case certified in the State of California. There have been others certified since. A copy of the notice can be downloaded here.


Guitar Center Checks Are Out

Our class action settlement in the Guitar Center case has funded, and class member distribution checks were mailed out on October 12, 2006. Class members who have moved since submitting their claim forms should contact the claims administrator, Rust Consulting, immediately.

Rust Consulting, Inc.
625 Marquette Avenue, Suite 880
Minneapolis, MN 55402 USA
Toll-free: 800-999-7940
Phone: 612-359-2000
Fax: 612-359-2050
E-mail: [email protected]
http://www.rustconsulting.com


4th District Revives Dollar Tree Class Action

In an unpublished 3-0 decision, the Fourth District Court of Appeal has reversed the dismissal of our firm's meal and rest period class action lawsuit against Dollar Tree Stores, Inc. As we mentioned last month, the primary issue was whether a putative class member has the right to intervene or amend a complaint when the original class representative tentatively releases his claims as a part of a settlement which does not settle the claims of his entire class. A secondary issue involved whether the court could dismiss the class action, over the objection of putative class members, without notice to the class.

The case began as an overtime, meal and rest period class action entitled Edmisten v. Dollar Tree Stores, Inc. After we filed the complaint, we discovered that there was already a consolidated action (Williams v. Dollar Tree Stores, Inc.) seeking overtime pay for Dollar Tree store managers, so we dropped the overtime claims and proceeded with a meal and rest period claim on behalf of all Dollar Tree retail store workers in California, including both hourly and salaried workers. Eventually, the Williams case (with which we were not involved) settled, and the agreement included a release of meal and rest period claims for store managers. Mr. Edmisten decided to participate in that settlement so he could recover his overtime pay.

As a result of the Williams settlement, and Mr. Edmisten's decision to include himself in it, Dollar Tree moved to dismiss the entire Edmisten case. Not surprisingly, employees who didn't get anything from the Williams settlement objected. Ms. Andrade, an assistant manager not included in the Williams settlement, sought to replace Mr. Edmisten with a motion to amend, or, alternative intervene.

In a single hearing, the trial court denied her motion and instead granted Dollar Tree’s motion to dismiss. The trial court explained the reasons for its rulings, emphasizing two points. First, because the class was uncertified, the court concluded Andrade was not a class member and therefore not entitled to intervene. Second, the court reasoned Andrade was not a suitable class representative to take Edmisten’s place because Edmisten “asserted the claims of . . . salaried employees” alleging they were misclassified, whereas Andrade was an hourly employee. On Andrade's behalf, we appealed in the matter entitled Andrade v. Dollar Tree Stores, Inc.

The Court of Appeal agreed with us, holding that "[b]ecause the court’s rulings contravened La Sala and Rule 1860, and were based on unsupported factual findings, we must reverse the order." From the moment we were served with the motion to dismiss, we thought Dollar Tree's positions were tenuous, at best, and bordering on frivolous. We were unable to persuade the trial judge, but to our delight, the Court of Appeal agreed with virtually everything we said.

If a named plaintiff can no longer suitably represent the class, the court must "at least afford plaintiffs the opportunity to amend their complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative.” ... The court erred by failing to do so. In addition, the court’s dismissal of the action failed to comply with California Rules of Court, Rule 1860. Rule 1860 governs dismissals of class actions and is “illustrative of the protection afforded absent class members.” (citing Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1109, 1110 [“California courts recognize and preserve the rights of absent class members, even before the issue of certification has been determined”].) Rule 1860(a) requires, inter alia, that any request for dismissal be accompanied by an affidavit or a declaration “clearly stat[ing] whether consideration, direct or indirect, is being given for the dismissal and . . . describ[ing] the consideration in detail.” Subdivision (c) provides that “[i]f the court has not ruled on class certification . . . , the action may be dismissed without notice to the class members if the court finds that the dismissal will not prejudice them.” Here, the court’s dismissal of the action did not comply with the foregoing requirements. ... And while the court found (wrongly, as we discuss post) that Andrade would not be harmed by the dismissal, the court did not address the issue of whether other putative class members would be prejudiced.

During oral argument in the trial court, we were frustrated by the fact that Dollar Tree made several critical false assertions of fact, none of which were anywhere in the declarations. Yet, over our objection, the trial court adopted those false assertions in its findings of fact in its ruling. The Court of Appeal looked at those assertions closely and caught them all, noting that the trial court "made unsupported factual findings in reaching its rulings" with "no support in the record" for any of the crucial factual determinations. In a footnote, the Court of Appeal also criticized Dollar Tree for misrepresenting the record, and specifically, for "falsely contend[ing]" that the Williams and Edmisten cases were identical. The court also noted that one of Dollar Tree's misrepresentations was exposed by an admission their own counsel had made in a January 2004 letter to the Williams class counsel.

The motion to dismiss is a tool more class action defense counsel are trying to use as a way of avoiding certification motions. The motions are almost never properly taken. To date, Dollar Tree was the only case in which our opposition to such a motion failed. Though unpublished, Andrade v. Dollar Tree offers a good roadmap to class representatives opposing these motions. If you would like to read the opinion, you can download it here in pdf or Word format. Any current or former retail store workers at any California Dollar Tree store can get more information by contacting us here.


Dollar Tree Appeal Argued

On Monday, we argued our appeal of the dismissal of our original Dollar Tree Stores meal period and rest period class action. The primary issue is whether a putative class member has the right to intervene or amend a complaint when the original class representative tentatively releases his claims as a part of a settlement which does not address the claims of his entire class. A secondary issue involves the question of when the trial court can dismiss a class action without notice to the class. Frankly, we thought the law was well settled already, but at least one Superior Court judge disagreed with us and dismissed the case over our objection. We'll be quite surprised if a majority of any appellate panel upholds the dismissal.


Guitar Center Settlement Approved

Our settlement in a wage and hour class action on behalf of the hourly workers at California Guitar Center stores has been granted final approval at a fairness hearing before Los Angeles County Superior Court judge James Dunn yesterday morning. Payments will be made to eligible class members within a few weeks, provided that they submitted their claims forms on or before July 3, 2006. Any class members with questions should contact us by telephone or email. Do not post questions by leaving a message in the comments.


Northrop Meal Period Settlement Approved

Our $2 million settlement in the Northrop meal period case was given final approval at a final fairness hearing on Monday, July 10, 2006. There were no objections. Approximately 90% of the class participated in the settlement. We will be moving as quickly as possible to have the Los Angeles County Superior Court enter judgment on the order and findings issued by Justice Trotter as general referee. We will post further details on www.northroplawsuit.com, including the expected payment date, as such details become available.


Dollar Tree Stores Argues Over Managers' Personal Liability For Penalties. If You Guessed They Argued Against Such Recoveries, You Guessed Wrong.

Last year, the holding in Reynolds v. Bement (2005) 36 Cal.4th 1075 put to rest most direct wage claims employees might make against individuals in connection with any failure by a corporate defendant to pay wages. The Supreme Court deferred, however, expressing any opinion about whether employees could assert penalty claims against the corporate officers and individuals responsible for the wage violations. Some plaintiffs still pursue such claims, while employers invariably discount any reasonable likelihood that individuals will be held personally liable for any part of any wage claim against a corporation, absent a finding of alter ego; but amazingly, not all employers and not all employers' counsel argue against such personal liability.

In our pending class action against Dollar Tree Stores, Inc., the employer and its counsel (attorneys with the defense firm Thelen, Reid & Priest, LLP) argued vociferously that Dollar Tree's managers could be found liable, individually, for civil penalties, writing that

Plaintiff ... overlooks key sections of the Labor Code which provide for the imposition of penalties against corporate agents ... if they fail to permit employees to take rest and meal breaks. See Cal. Lab. Code §§ 558, 2966.

Plaintiff ... completely misconstrues the holding in Reynolds v. Bement (2005) 36 Cal.4th 1075. ... While the Reynolds court did conclude that "corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employees’ wages," the court also noted that its holding did not preclude employees ... from recovering penalties against corporate agents. Reynolds, supra, 36 Cal.4th at 1087 and 1089. Specifically, the court stated that "pursuant to section 558, subdivision (a), any 'person acting on behalf of an employer who violates, or causes to be violated' a statute or wage order relating to working hours is subject to a civil penalty, payable to the affected employee, equal to the amount of any underpaid wages."  Id. at 1189. The court further stated that "the Legislature has provided that aggrieved employees may under certain circumstances maintain civil actions to recover such penalties." Id. Accordingly, under Reynolds, Plaintiff could conceivably seek to recover penalties ... pursuant to Sections 558 and 2699 of the Labor Code for ... alleged failure to provide her rest and meal breaks.

Why would an employer want to argue such a thing? In this case, it was a lawyer's tactical maneuver, trying (unsuccessfully) to disqualify a member of our legal team who had previously represented a Dollar Tree manager. Nonetheless, it was a curious move that probably wouldn't be well received by most managers and officers at most corporate employers.


Guitar Center Claim Forms Due

For our Guitar Center clients, please note that claim forms are due on Monday, July 3, 2006. You must have your claim forms postmarked by that Monday or you will forfeit your share of the settlement in Rodriquez v. Guitar Center Stores, Inc. and McClain v. Guitar Center Stores, Inc. More information can be found in the class notice, which you can download here. If you have lost your claim form, please contact the claims administrator immediately. A sample claim form can be downloaded here.

The claims administrator is:

Rust Consulting, Inc.
625 Marquette Avenue, Suite 880
Minneapolis, MN 55402 USA
Toll-free: 800-999-7940
Phone: 612-359-2000
Fax: 612-359-2050
[email protected]


$2 Million Northrop Class Action Settlement Approved

First shift production workers at Northrop Grumman's El Segundo manufacturing facility will share in a $2 million settlement involving meal period violations dating from January 2001 to April 2004, pursuant to a settlement approved by a court-appointed referree this afternoon. The settlement resolves two cases pending in the Los Angeles County Superior Court. Our law firm is one of two firms involved in the action. The primary claims alleged in both cases arose from non-compliant meal period scheduling at the facility. Approximately 900 current and former production workers will be eligible to share in the proceeds.

The settlement will require the company to mail claim forms to all eligible employees. Workers must submit these forms in order to be eligible to receive their payments under the settlement. More information about the lawsuit can be obtained at a website we set up for the employees. We will post copies of the claims forms and notices as soon as they are printed, which will be sometime in April.

Source/Contact: Walsh & Walsh, P.C. Michael J. Walsh, Esq. 420 Exchange, Suite 270 Irvine, CA 92602 Tel: (714) 544-6609 Fax: (714) 544-6621 E-mail: [email protected]. The employees were represented by Walsh & Walsh, P.C. (Michael J. Walsh and Mark A. Walsh) of Irvine, California, Langford & Langford, APLC (Michael S. Langford and Karin A. Langford) of Santa Ana, California.


TGI Friday's Class Action Stayed

Yesterday, Judge Cannon issued a 90 day stay in the certified TGI Friday's meal and rest period class action, Hernandez v. Main Street Restaurant Group, Inc., so that the court can reevaluate the statute of limitations on Labor Code § 226.7 claims in light of the pending petition for review in Murphy v. Kenneth Cole Productions, Inc. Judge Cannon had previously ruled that the extra hour of pay under Labor Code § 226.7 was a wage, with a four-year statute of limitations.


Guitar Center Employees Settle Meal and Rest Period Class Actions

Employees at California stores operated by Guitar Center, Inc. (Nasdaq: GTRC) will share in a significant settlement [the terms of which we are prohibited from disclosing, but have been discussed openly by Guitar Center executives] involving meal and rest period violations and off the clock pay claims, pursuant to a tentative settlement our office reached last week on behalf of several thousand current and former Guitar Center workers. The terms are subject to court approval.

The settlement resolves two cases pending in the Los Angeles County Superior Court. Our law firm is among five firms involved in the action; we represent plaintiffs James McClain, Vincent Musolino and Joshua Castaneda. The cases were filed in 2004 and settled after two mediation sessions with highly regarded employment litigation mediator Mark Rudy. The primary claims alleged in both cases stemmed from a failure on the part of Guitar Center to permit its workers to take required meal periods.

Leland P. Smith, Executive Vice President and General Counsel for Guitar Center, commented, "While the Company denies all liability or wrongdoing in these cases, we chose to settle these lawsuits in order to put them behind us and avoid the distraction and additional, unnecessary legal expenses that we would otherwise incur."

On behalf of the class, however, we would add that the employees emphatically insist that the case, particularly with respect to the meal period violations, was supported by substantial evidence and was quite meritorious, which justifies the significant amount of the settlement. Guitar Center is known for working its sales force ("the sales force that rocks") hard, and this environment has resulted in strong profits and shareholder value. However, it has also resulted in a practice, if not a policy, that runs afoul of California law concerning mandatory employee breaks. Consider these excerpts from a recent article about the company in the magazine Business 2.0:

Some mornings Marks psyches up his staff by showing them Glengarry Glen Ross, the 1992 David Mamet film about a group of worn-out salesmen hustling to move empty lots. Marks always plays the same scene: Alec Baldwin, looking like a high-paid Wall Street exec, dressing down his lowly crew. Baldwin mocks their clothes, their watches, their cars. At one point, he turns to sad sack Jack Lemmon and gets in a vicious dig: "Put that coffee down! Coffee is for closers only." The scene always gets laughs, but it's meant to inspire. The not-so-subtle message: Close the deal, or else.

The hustle doesn't stop at closing time. After salespeople lock the doors, they grab vacuums and toilet brushes and go to work. Cleaning helps build store pride, Marks explains. But it wears on some, and if they haven't faded recently, toilet patrol only compounds the misery. "That's the only time of the day when I'm questioning what the hell I'm doing," says another salesman.

Despite this corporate culture, workers have the right to rest during their long shifts. Under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order 7, retail store employees are entitled to a paid ten-minute break for every four hours of work, or major fraction thereof. Employees working at least 3½ hours are entitled to one paid break, and earn a second paid break after six hours. Furthermore, employees who work more than five hour shifts are entitled to a 30 minute break which need not be paid.

The settlement will require the company to mail claim forms to all eligible employees. Workers must submit these forms in order to be eligible to receive their payments under the settlement.

Source/Contact: Walsh & Walsh, P.C. Michael J. Walsh, Esq. 420 Exchange, Suite 270 Irvine, CA 92602 Tel: (714) 544-6609 Fax: (714) 544-6621 E-mail: [email protected]. The employees were represented by Walsh & Walsh, P.C. (Michael J. Walsh and Mark A. Walsh) of Irvine, California, Langford & Langford, APLC (Michael S. Langford and Karin A. Langford) of Santa Ana, California, Kingsley & Kingsley (Eric B. Kingsley) of Encino, California, the Law Offices of Stevel Miller (Steve Miller) and the Law Office of Scott A. Miller, of Encino, California.


J. Jill Wardrobing Class Action Settlement Approved

The settlement in our class action against J. Jill the Store (Balogh v. The Birch Pond Group, Inc.) has been given final approval by Riverside County Superior Court Commissioner Joan F. Burgess. The case involved the wardrobing and employee break policies of The Birch Pond Group's J. Jill The Store retail clothing stores in California from July 1999 to July 2003. Several hundred current and former hourly workers at J. Jill the Store's retail stores in Calfornia will share in approximately $287,000 in cash and merchandise as part of a settlement involving claims that they were required to purchase J. Jill clothing as a condition of employment, and that some workers were denied meal and rest periods.

The lawsuit was filed by a former sales associate and former assistant manager at J. Jill's Palm Desert store. On April 15, 2005, the settlement was given preliminary approval by Riverside County Superior Court Roger Leubs. Final approval was given at the court's final fairness hearing by Commissioner Joan F. Burgess on October 12, 2005.

To settle the wardrobing claims, full-time employees were compensated with J. Jill gift cards worth $150, plus $35 per full month of employment, beginning with the third month of employment during the relevant period. Part-time employees received gift cards worth $150, plus $20 per full month of employment, beginning with the third month of employment during the relevant period. The gift cards are good for the purchase of any merchandise available to the general public, including sale or clearance items, but may not be used: in conjunction with employee discounts, at J. Jill outlet store or on Amazon.com. They also may not be used to pay any J. Jill credit card account. Employees were given the option of accepting cash equivalent to 50% of their gross gift card allowance. To settle the meal and rest period claims, employees were paid up to $21 per month of employment. Checks and gift cards will be mailed to class members no later than November 4, 2005.

Under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order 7, retail store employees are entitled to a paid ten-minute break for every four hours of work, or major fraction thereof. Employees working at least 3½ hours are entitled to one paid break, and earn a second paid break after six hours. Furthermore, employees who work more than five hour shifts are entitled to a 30 minute break which need not be paid. Under California Labor Code § 450 and Industrial Welfare Commission Wage Order 7, employers are required to pay for the cost of purchasing and maintaining employee uniforms and may not require employees to purchase anything of value, including uniforms or clothing of a particular style or maker, from the company.


Red Lobster Class Action Settlement Approved

Here is our press release concerning the GMRI meal and rest period case:

Court Approves $9.5 Million Settlement For Red Lobster and Olive Garden Employees in Meal and Rest Break Class Actions (Irvine, California)

More than 40,000 current and former hourly workers at California Red Lobster and Olive Garden restaurants will share $9.5 million as part of a settlement involving claims that they were prevented from taking breaks, and that they were required to purchase and maintain their own employee uniforms. Red Lobster workers from more than 40 locations in California who worked there from February 21, 1998 to the present will share $5.5 million, while Olive Garden employees who worked from March 24, 1999 to the present will share another $4 million.

Two food servers at the Brea Red Lobster restaurant filed the first class action complaint in Orange County Superior Court in February 2002, alleging that Red Lobster refused to allow breaks to its non-exempt workers throughout the State of California. The complaint was subsequently amended to include damages and restitution for Red Lobster’s former policy of charging workers for uniforms, and for making the employees maintain their own uniforms. In March 2003, an Olive Garden employee filed a similar complaint, seeking certification of all GMRI workers, including both the Red Lobster and Olive Garden chains. In May 2004, while the first case was on appeal from an Orange County Superior Court ruling denying the defendant’s motions for summary judgment and to compel arbitration, a third lawsuit was filed in Sacramento, California.

Under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order 5, employees are entitled to a paid ten-minute break for every four hours of work, or major fraction thereof. Employees working at least 3½ hours are entitled to one paid break, and earn a second paid break after six hours. Furthermore, employees who work more than five hour shifts are entitled to a 30 minute break which need not be paid. Under California Labor Code § 450 and Industrial Welfare Commission Wage Order 5, employers are required to pay for the cost of purchasing and maintaining employee uniforms and may not require employees to purchase anything of value, including uniforms, from the company.

This is one of the largest rest period class actions ever certified in California. This case was hard fought for three years, in two counties, the Court of Appeal and the California Supreme Court. The Red Lobster case was settled more than two years after the first mediation session. A second mediation session was scheduled after the California Supreme Court denied review of a 4th District Court of Appeal ruling preventing Red Lobster from compelling the employees to arbitrate the Red Lobster class claims. Several weeks after the second mediation, before respected mediator Mark S. Rudy of San Francisco, the parties reached a tentative settlement agreement. The Olive Garden case settled shortly thereafter, and an integrated and final settlement of the three lawsuits was signed on June 25, 2005.

The settlement was given preliminary approval by the Sacramento County Superior Court earlier this year. Sacramento Judge Loren E. McMaster granted final approval to the settlement yesterday, October 18, 2005. Checks to class members will be mailed no later than December 6, 2005.

GRMI, Inc., a subsidiary of Darden Restaurants, Inc. (stock symbol DRI), which operates the Red Lobster and Olive Garden restaurant chains in California, did not admit liability in the settlement. The settlement does not dictate any change in the restaurant chain’s practices. However, attorneys for the class do not foresee any ongoing problems with GMRI’s policies. Since 2002, the reports of employees missing their meal and rest breaks have been few, and we have seen instances in which restaurant managers who did not permit employees to take breaks have been subject to discipline by the company.

Information on the settlement was previously posted here and here.


TGI Friday's Ruling: It's a Wage, Not a Penalty.

This afternoon, Judge Jonathan Cannon ruled on Main Street Restaurant Group, Inc.'s motion to strike portions of the third amended complaint in the TGI Friday's uniform, meal and rest period class action. The motion was primarily focused upon allegations that reach back more than one year from the filing date with respect to meal and rest period pay. The primary ground asserted in support of the motion was that an hour of meal and rest period pay is a penalty, such that claims more than a year old are invalid. The court rejected the defense position and ruled as follows:

ANALYSIS: Most of Defendant’s Motion rests on the proposition the remedies of Labor Code §226.7 are penalties, not wages. As discussed below, Defendant’s proposition is incorrect. This Court is not bound by the DLSE’s interpretation the provisions § 226.7 constitute a penalty rather than a wage. There is very little case law addressing the question as to whether the provisions of § 226.7 should be considered a wage or a penalty.

The Court in Tomlinson v. Indymac Bank F.S.B. (CD Cal. 2005) F.Supp.2d 8991 applied and interpreted California law in considering the issue. The Tomlinson Court stated: “The Court agrees with Plaintiffs that payments under Section 226.7 are restitutionary because they are akin to payment of overtime wages to an employee: both are “earned wages” and thus recoverable under the UCL. See Cortez, 23 Cal.4th at 178, 96 Cal.Rptr.2d 518, 999 P.2d 706. Just as an understaffed company may make the conscious decision to pay its employees time and a half to work overtime, the same understaffed company also can decide to have its employees forego their meal and rest breaks if it compensates them at a higher rate. In both instances, the employee earns the higher wage by working additional time.”

The issues regarding subclass “A” should have been raised at the hearing on certification. The statute of limitations regarding the 3rd cause of action may be addressed by way of summary adjudication.

RULING: The Motion to Strike is denied.

The ruling assures that the class, which was certified earlier this year, will be able to conduct all of the discovery needed to present a full case on the merits of all issues at trial.


Red Lobster Class Notices

The class action claims forms and notices of settlement were mailed out in the California Red Lobster class action cases on July 29, 2005. If you have not received a notice, you can download a copy of the notice here (RedLobsterNotice.pdf), and can download an exemplar proof of claim form here (RedLobsterClaimform.pdf).

However, if you are an eligible class member, and you have not received your claim form, you should contact the claims administrator immediately to receive a claim form with your employment data on it. The claims administrator is:

Rosenthal & Company
P.O. Box 6177
Novato, CA 92948-6177
(800) 207-0343


Red Lobster and Olive Garden Employees Settle Meal and Rest Break Class Action For $9.5 Million

Our Press Release of this date, celebrating the settlement of our most significant case:

More than 20,000 current and former food servers, bussers, hosts and hostesses, bartenders and kitchen workers at California Red Lobster and Olive Garden restaurants will share $9.5 million as part of a settlement involving claims that they were prevented from taking breaks, and that they were required to purchase and maintain their own employee uniforms. Red Lobster workers from more than 40 locations in California who worked there from February 21, 1998 to the present will share $5.5 million, while Olive Garden employees who worked from March 24, 1999 to the present will share another $4 million.

Two food servers at the Brea Red Lobster restaurant filed the first class action complaint in February 2002, alleging that Red Lobster refused to allow breaks to its non-exempt workers throughout the State of California. The complaint was subsequently amended to include damages and restitution for Red Lobster’s former policy of charging workers for uniforms, and for making the employees maintain their own uniforms. In March 2003, an Olive Garden employee filed a similar complaint, seeking certification of all GMRI workers, including both the Red Lobster and Olive Garden chains. Then, in May 2004, while the first case was on appeal from an Orange County Superior Court ruling denying the defendant’s motions for summary judgment and to compel arbitration, a third lawsuit was filed in Sacramento, California.

Under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order 5, employees are entitled to a paid ten-minute break for every four hours of work, or major fraction thereof. Employees working at least 3½ hours are entitled to one paid break, and earn a second paid break after six hours. Furthermore, employees who work more than five hour shifts are entitled to a 30 minute break which need not be paid. Under California Labor Code § 450 and Industrial Welfare Commission Wage Order 5, employers are required to pay for the cost of purchasing and maintaining employee uniforms and may not require employees to purchase anything of value, including uniforms, from the company.

This is one of the largest rest period class actions ever certified in California. This case was hard fought for three years, in two counties, the Court of Appeal and the California Supreme Court. The Red Lobster case was settled more than two years after the first mediation session. A second mediation session was scheduled after the California Supreme Court denied review of a 4th District Court of Appeal ruling preventing Red Lobster from compelling the employees to arbitrate the Red Lobster class claims. Several weeks after the second mediation, before respected mediator Mark S. Rudy of San Francisco, the parties reached a tentative settlement agreement. The Olive Garden case settled shortly thereafter, and an integrated and final settlement of the three lawsuits was signed on June 25, 2005.

The settlement requires the company to mail claim forms to all eligible employees. Workers must submit these forms in order to be eligible to receive their payments under the settlement. Employees can visit www.lobsterlawsuit.com for an update on the status of these legal actions.

GRMI, Inc., a subsidiary of Darden Restaurants, Inc. (stock symbol DRI), which operates the Red Lobster and Olive Garden restaurant chains in California, did not admit liability in the settlement. The settlement does not dictate any change in the restaurant chain’s practices. However, attorneys for the class do not foresee any ongoing problems with GMRI’s policies. Since 2002, the reports of employees missing their meal and rest breaks have been few, and we have seen instances in which restaurant managers who did not permit employees to take breaks have been subject to discipline by the company. Employees are no longer required to purchase uniforms.

Fact Sheet:
Class Representatives: For Red Lobster: Michelle Whalen-Camacho, Miguel Perez, Jason Nash and Torrey Hughes. For Olive Garden: Kelly Mancuso and Jessica Springer. · Defendant: GMRI, Inc., a subsidiary of Darden Restaurants, Inc. (DRI), a publicly traded corporation headquartered in Orlando, Florida.
Courts: The initial lawsuit was filed by Perez and Whalen-Camacho on February 21, 2002 in the Superior Court of the State of California, for the County of Orange, Case No. 02CC00038. The Mancuso action was filed March 24, 2003 in the Superior Court of the State of California, for the County of Orange, Case No. 03CC00098. The Nash case was filed on May 11, 2004, in the Superior Court of the State of California, for the County of Sacramento, Case No. 04AS01949. Whalen-Camacho, Perez, Mancuso and Springer intervened in the Nash case in April 2005. That case is currently assigned to the Honorable Loren E. McMaster.
Claims alleged: Violations of California Labor Code § 226.7 and Industrial Welfare Commission Wage Order No. 5, for failure to provide 30 minute meal periods and 10 minute rest periods; violations of California Labor Code § 450 and Industrial Welfare Commission Wage Order No. 5, for compelling employees to purchase and maintain uniforms. The class also alleges that the meal and rest break violations, uniform violations and equipment sales constitute violations of California Business & Professions Code § 17200 et seq. California’s Unfair Competition Law.
Primary factual allegations: Until 2002, GMRI, Inc.’s Red Lobster and Olive Garden chains prevented employees from taking breaks at their restaurants throughout California, and failed to pay employees an extra hour of pay when such breaks could not be taken. From 2002 to the present, although the restaurants had systems in place to provide for breaks in most instances, on the occasions when breaks were missed, employees were still not paid the extra hour of pay. In addition, for a portion of the relevant time period, Red Lobster required employees to purchase, launder and press their employee uniforms at the employee’s sole expense. The court did not rule upon the merits of these allegations, which GMRI has continued to dispute.
Relief sought: Payment of up to one hour of pay per day for each meal period violation, and one hour of pay per day for each rest period violation, for employees who worked during the relevant time periods of February 1998 to June 2005; restitution for all hourly California employees who were denied paid rest breaks, or who were required to purchase uniforms or equipment, from February 1998 to June 2005.
Plaintiffs' attorneys: The employees were represented by Walsh & Walsh, P.C. (Michael J. Walsh and Mark A. Walsh) of Irvine, California, Langford & Langford, APLC (Michael S. Langford and Karin A. Langford) of Santa Ana, California, Kingsley & Kingsley (Eric B. Kingsley) of Encino, California, the Law Offices of Michael L. Carver (Michael L. Carver), of Chico, California, and the Law Offices of Robert S. Skripko, Jr. (Robert S. Skripko, Jr.) of Santa Ana, California.
Defendant’s attorneys: The employer was formerly represented by Littler Mendelson LLP, but at the time of the settlement, was represented by Jackson Lewis LLP (Mia Farber, David S. Bradshaw and Cary Palmer), Sacramento, California.
Source/Contact: Walsh & Walsh, P.C. Michael J. Walsh, Esq. 420 Exchange, Suite 270 Irvine, CA 92602 Tel: (714) 544-6609 Fax: (714) 544-6621 E-mail: [email protected] Website: http://www.lobsterlawsuit.com


Northrop Class Action Settled

We have settled our class action on behalf of a group of manufacturing workers at Northrop Grumman Corporation's El Segundo plant. If you worked at that facility from 2001 to April 2004, you are probably covered. We will post details once we have received preliminary approval of the settlement. If you are a class member, please submit your inquiries at the "Join Us" page on northroplawsuit.com.


TGIF Meal and Rest Period Class Action Certified!

Our meal and rest period class action against Main Street and Main, Inc., the largest franchisee of T.G.I.Friday's restaurants in California, was certified this afternoon by the Orange County Superior Court. Judge Jonathan Cannon certified the two subclasses for meal period violations and rest period violations. However, because class representative April Hernandez testified that she couldn't recall her purchases of uniforms and equipment -- towels and aprons, primarily -- the court conditioned its certification of the uniform and equipment subclasses upon the amendment of the complaint to include a new representative for those subclasses.

This was one of the few rest period class actions to proceed to a contested certification hearing. Several have been denied. We're trying to confirm how many others have been certified.

The court's ruling was as follows:

ANALYSIS:

"To obtain certification, a party must establish the existence of both an ascertainable class and a well defined community of interest among class members. [ citation.] the community of interest requirement involves three factors: "(1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class." Linder v Thrify Oil Co. (2000) 23 CA4th 429. Here, Plaintiff has met the above requirements.

Each of the defined subclasses demonstrate a predominant question of law or fact necessary for certification. Plaintiff has presented substantial evidence the employees where denied rest and meal breaks. Defendant presented evidence some employees waived their right to a meal break when they accepted employment. The effectiveness of that waiver cannot be determined at this point.

Defendant has pointed to circumstantial evidence of employees enjoying meal and rest breaks. Defendant has attached photographs of employee break areas, provided evidence of its 50% off on food policy for employees and some testimony of employees that they did indeed take a break to eat or saw other employees taking a break to eat. However, Defendant has not produced any evidence to contradict the 200+ declarations submitted by Plaintiff, that employees were not allowed an uninterrupted, 30 minute meal break for shifts more than five (5) hours. It may be true some of the employees used the meal discount and ate in the employee break areas, but there is nothing showing the employees did that during their shift or that the meal break was for 30 uninterrupted minutes.

Because Plaintiff has provided substantial evidence of meal and rest break violations, she has claims typical of those subclasses and she can adequately represent the class on those issues, the class will be certified as to subclasses "a" through "d".

Certification is a little more problematic with regard to the uniform and equipment subclasses. Plaintiff has provided the required substantial evidence of violations of the Labor Code with respect to uniform and equipment requirements, however it does not appear Plaintiff's claims are typical of the claims of the members of those subclasses. Plaintiff testified she never purchased a uniform or equipment from Defendant. Therefore, she is not a suitable class representative with regard to those claims. Plaintiff will have to find another class member to represent the uniform issues.

RULING:

The Motion for Certification is granted as to subclasses " a" though "d". Certification is granted as to subclasses "e" and "f" on the condition Plaintiff finds a suitable class representative within the next fifteen (15) days.


TGIF Mediation Update

We participated in an initial mediation session last week with representatives of Main Street and Main, Inc., the largest franchisee of TGI Friday's restaurants in California. Main Street and Main broke the law by forcing employees to purchase uniforms until sometime in late 2002 or early 2003, and routinely prevented employees from taking meal or rest periods. Some 10,000 employees were affected. A pending motion for class certification is supported by more than 200 sworn declarations of current and former employees, including several managers.

The best offer submitted by Main Street and Main worked out to about $2 per employee, per month, over the course of the time period covered by the class action lawsuit filed in January 2003. The parties are still very far apart in their negotiations, and it appears likely that the case will proceed to a hearing on class certification next month.


Settlement in J. Jill Case

Walsh & Walsh, P.C. announces that a settlement was reached yesterday in the Balogh v. The Birch Pond Group, Inc. class action. The case, currently pending in Riverside County Superior Court, involves the wardrobing and employee break policies of Birch Pond Group's J. Jill The Store retail clothing stores in California from July 1999 to July 2003. The terms of the settlement will not be released until after a formal agreement has been signed by all parties.


TGI Friday's Case Sent To Mediation

The class certification motion in Hernandez v. Main Street and Main, Inc. will be heard after a mediation session currently set for February 24, 2005. The parties have selected Orange County Superior Court Judge Robert Jameson as their mediator. Judge Jameson is retiring from the bench effective February 1, 2005. The case involves as many as 10,000 current and former employees of the largest T.G.I. Friday's franchisor in California, who seek reimbursement, wages and penalties arising from meal period, rest period and uniform violations. Currently, although no formal notice has been given to the class, more than 300 putative class members have submitted sworn declarations in support of the action.