California has fee-shifting provision in place for claimants seeking unpaid minimum wages and unpaid overtime pay, by which the prevailing employee is entitled to attorney’s fees. Many employer defendants have sought to scare away a former employee plaintiff by “reminding” them that if the employee loses, the employer will go after them for their fees and costs. Many employees have considered the risk and opted not to pursue legitimate claims based on that fear.

Good news….

Effective January 1, 2014, Labor Code § 218.5 will provide that a prevailing employer can recover its defense costs only if it proves to the court that the employee brought the action “in bad faith.” “In bad faith” is not defined in the statute, but it will probably require that the employer prove that the employee knowingly filed a false claim purely withy the intent to harm their former employer.
The history behind the change reveals California’s long-established “pro-employee” position. Governor Brown signed the legislation, SB 462, making this change on August 26, 2013. The bill’s author, Sen. Bill Monning, D-Carmel, stated that this amendment corrects “an historic injustice” and “brings California into conformity with the overwhelming majority of states in the country.
The amendment was prompted by a 2012 California Supreme Court ruling holding that a prevailing employer in a meal-rest penalties case could not recover attorneys’ fees because such penalties are not “wages” and the Labor Code statutes permit fee recovery only in actions involving wages. Kirby v. Immoos Fire Protection, 53 Cal. 4th 1244 (2012).

Although there was no applicable fee-shifting statute in Kirby, the case implied that if the claims had involved wages instead of penalties, an award of attorneys’ fees to the prevailing employer could have been appropriate. The reaction from SB 462′s sponsor — the California Employment Lawyers Association — was to try to protect plaintiff employees from that eventuality by requiring successful employers to prove bad faith. A true win for employee plaintiffs!

Wet Seal, a California based retailer, has settled a national class action suit that was filed in federal district court. The employment discrimination case was based on the company’s alleged Title VII of the Civil Rights Act of 1964 violation. The act prohibits employers from discriminating against employees based on sex, race, national origin, color or religion.

The settlement is reportedly for $7.5 million and Wet Seal promises to make changes that will reduce discrimination based on race. The suit was filed after an investigation by the Equal Employment Opportunity Commission that lasted nearly three years. The EEOC determined that the retailer was indeed guilty of denying certain employees promotions and equal pay based on race.

The court has indicated that it will decide in November whether to give the settlement final approval after a review of the process for claims. Before the ink is dry on this settlement, the EEOC has filed two additional complaints against two different companies alleging that they discriminated against applicants by using background checks to disqualify them. Some say that the case against Wet Seal and these two additional complaints illustrate the fact that African Americans in California and around the country continue to face prejudices when it comes to employment.

Many people would like to believe that the days of employment discrimination based on things such as race are far from over. Unfortunately, that isn’t always the case. There are still many people who are subjected to discrimination on a daily basis simply because of the color of their skin. Any employee that feels they have been discriminated against for any reason has the right to file a complaint. If the employer fails to satisfactorily handle that complaint, the employee may seek additional advice and assistance with reaching a satisfactory conclusion.

Source:, “Wet Seal To Pay $7.5 Million Class Action Race Settlement,” Joseph Diebold, June 18, 2013

An employee may also take time off work, without fear of losing their job, for:

1.   Time Off For Honorable Activities  –Lab. Code §§ 230.3-.4; 1501-1507.  Employers in California are required to allow employees to take unpaid leaves of absence to serve as volunteer firefighters, reserve peace officers, emergency rescue personnel, or as a member of the Civil Air Patrol.  Any employer who discriminates against an employee for taking time allowed under the law is guilty of a criminal misdemeanor, and the affected employee is entitled to reinstatement, lost wages, and benefits.

2.   Time Off For Donating Organs or Bone Marrow- Lab. Code §§ 1508-1513. Employees are permitted to take paid leaves of absence to donate an organ or bone marrow.  If you work at an establishment that employs 15 or more employees, and have worked there for at least 90 days, you are entitled to take up to 5 business days of paid leave during any one-year period to donate bone marrow, and up to 30 business days of paid leave during any one-year period to donate an organ.

You may, however, be required to use up to two weeks of paid sick leave or vacation time accrued. Upon return from a leave under these provisions, you are entitled to reinstatement in the same or a comparable position of employment.

3.   Time Off to Assist in a Classroom– Lab. Code § 230.8. If you are a parent, guardian, or a custodial grandparent and work for an employer that has 25 employees or more you are permitted to take unpaid time off (or use vacation/personal leave) up to 8 hours per month and 40 hours per school year to participate in your child’s school or day care activities. The penalty for violating this provision is stiff — affected employees can obtain reinstatement, lost wages and benefits, as well as a civil penalty of three times the lost wages and benefits.

 4.   Time Off For Pregnancy –  In California, there may be no cap to the amount of leave an employee can take in connection with her pregnancy and childbirth.  A recent decision by a California Court of Appeal makes clear that the Pregnancy Disability Leave Law (“PDLL”), which allows for up to four months leave for pregnancy-related disability, “augments rather than supplants” other disability leave provisions set forth in the Fair Housing and Employment Act (“FEHA”), as well as leave to bond with a new child under the CFRA.  This means that an employee may be entitled to take up to four months leave under PDLL, up to an additional 12-weeks of leave under CFRA, and any additional leave as a reasonable accommodation under FEHA if the employee is still disabled after exhausting PDLL.

5.   Time Off For Addicts And Those Who Need Help Reading Lab. Code §§ 1025-26; 1041.   Employers are also obligated to allow employees to take unpaid leave as a “reasonable accommodation” to participate in alcohol or drug rehabilitation programs, or adult literacy programs if they employ 25 or more employees.  The employer must also take reasonable steps to safeguard the privacy of an employee who has informed the employer about enrolling in such a program.

Hollingsworth v. Perry (Docket Number: 12-144)

Date Argued:03/26/13

For those of you following the same-sex marriage debate, the oral argument heard by the Supreme Court can be downloaded or played by clicking one of the below:

Media Formats:

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RealAudio  RealAudio 10 Download
PDF Transcript (PDF) View
To download file:
  • From Windows XP/Vista/7 – Right click the “Download” link and select “Save Target As…” or “Save Link As…”
  • From Mac – Press Ctrl key while clicking the “Download” link, or just right click the link if you have a double button mouse, and select “Save Linked File As…”

A Los Angeles jury has returned a verdict of $3.5 million against drug store chain Rite Aid Corporation in a recent disability discrimination case.

According to the complaint filed, Martha Palma had worked for Rite Aid for years and had been a store manager at one of its stores in Los Angeles. She was fired months after being diagnosed with a “non-work related serious disability” in late 2010.

Ms. Palma filed claims for disability discrimination, retaliation for complaining of discrimination and harassment, and failure to engage in the interactive process, according to the statement. A jury in Los Angeles Superior Court found in her favor on each of these claims.

At trial, Ms. Palma testified that Rite Aid “treated her differently and terminated her because of the stigma related to employees with disabilities,” Shegerian said in a public statement. “She testified that despite being able to perform her job duties, the defendant never tried to discuss accommodations with her, instead manufacturing a false reason to terminate her[] and then fired her.”


Judicial interpretation of the enforceability of arbitration clauses in the context of class action claims for wage and hour violations, such as the failure to pay overtime, missed meal and rest breaks and misclassification as an independent contractor or exempt, continues to evolve.

In 2011, the U.S. Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, which generally prohibits states from requiring additional due process before enforcing arbitration agreements. Since that opinion was issued, however, California lawyers and jurists have called into question the continuing validity of an earlier decision, Gentry v. Superior Court.

In Gentry, the California Supreme Court set forth a four part test to analyze whether class action arbitration waivers are enforceable. Some California courts continue to apply the four-part “Gentry test,” while others consider it inconsistent with the objective of enforcing arbitration agreements according to their terms, as set forth in Concepcion.

In its recent decision in Truly Nolen of America v. Superior Court, a California Court of Appeal initially calls into question the validity of Gentry, but ultimately holds that in the absence of an express or implied agreement among the parties regarding class arbitration, ordering the arbitration of statutory employment claims on a class wide basis was “questionable.”  The Truly Nolan plaintiffs were pest control technicians who claimed that they were misclassified as exempt from overtime pay.

On appeal, the court agreed that under Concepcion, class action waivers in employment arbitration agreements should be enforced, even if class arbitration would be “more efficient” than individual arbitration. The appellate court noted, however, that because Concepcion addressed class action waivers in the context of consumer claims, rather than statutory claims, Gentry remains good law.

As it stands, employees will likely have to satisfy the more rigorous four-part test to compel class action arbitration over their employers’ objections, and will have to set forth specific facts and not a generalized statement about the benefits of class wide arbitration. Notably, this new case may impact plaintiffs’ ability to rely on consideration of “public policy” when seeking to avoid individual arbitration of their wage and hour claims.

If you have questions regarding whether you are owed overtime pay, are properly classified as an independent contractor or properly exempt as an employee earning a “salary,” please give us a call. We’ll be glad to examine whether any of your employment rights are being violated.

While no attorney or law firm can guarantee that your case will be successful or that these results will be seen in your case, results in three key lawsuits in California reveal that employee rights claims remain a viable means to address discrimination, harassment and retaliation at work:

  • Retailer Abercrombie & Fitch recently agreed to  resolve a class-action discrimination lawsuit for approximately $50 million.

  • A jury award of $820,700 for harassing blog posts written by managers was upheld by the California Court of Appeals.

  • Go Daddy was found liable for retaliation when it ignored an employee’s complaint of bias and later terminated him without conducting an investigation into his complaint. The Go Daddy jury awarded Plaintiff over $350,000 for damages related to retaliation, even though it did not find that any discrimination had occurred.

Court Decides Employers Must Relieve
Employees of All Duty During Meal Periods
But Need Not Ensure They Perform No Work

The California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.

The court also concluded that a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.

These questions arose in a case filed nearly eight years ago – Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state. After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated. The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.

In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods. Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases. Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length. Rest periods need not be timed to fall specifically before or after any meal period.

As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment. With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment. With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims. Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.

The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.

Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand. The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.

The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Website in two formats:
Word (; and
Acrobat (

Social Media pervades our lives – including the workplace. Recently, the National Labor Relations Board (“NLRB”) has sought to define the parameters of an employee’s right to engage in “protected concerted activity” given the role that Facebook, Twitter, LinkedIn and other such social media and internet based forums play in our lives. The NLRB issued three Advice Memorandums on the topic in July 2011. Those agency memorandums reveal an effort to establish a more consistent approach to evaluating whether social media communications constitute “protected concerted activity.” In each, the NLRB recognized that “circumstances where individual employees seek to initiate or to induce or to prepare for group action,” or where “truly group complaints” are being brought to management’s attention constitute or implicate “protected concerted activity.” Engaging in a protected concerted activity is necessary to find protection under the relevant law. In each of the three cases the NLRB looked at, it found that no protected concerted activity existed.

In the first case, a bartender complained on Facebook to a relative about his employer’s tip policy and other compensation issues and referred to his employer’s customers as “rednecks” and other offensive terms. In the second case, a Walmart employee’s Facebook wall contained his comment, “Wuck Falmart” and other more profane comments. The third case the NLRB examined involved an employee of a homeless shelter who logged into his Facebook account during work hours and made inappropriate comments about the shelter’s residents. In each of the three cases, the NLRB found that there was no protected concerted activity because each employee was voicing purely individual concerns.

For employees terminated for making comments on Facebook and other social media, an attorney can analyze whether the employee was protected from termination or discipline for the comments made by examining whether the employee is noting a purely personal concern or airing a personal grievance, or whether they are raising complaints designed to persuade others to bring about change through group action. One significant factor to consider is whether the employee’s coworkers also made comments agreeing with the posts. If they did, the termination may have been wrongful. It must be noted, however, that even if you have engaged in protected activity, if you used Facebook during company time, while “on the clock” or included profane or otherwise inappropriate comments, you could lose the protection afforded under the law.

If you have been terminated or disciplined within the last year for comments made on Facebook, Twitter, or other social media websites, we can analyze whether you were wrongfully terminated or disciplined.

If you are an employer considering terminating or disciplining an employee for such comments, you may need to exercise caution if the employee was posting a comment that concerns the terms and conditions of employment. We would be happy to analyze whether an employee’s comments constitute protected activity.

If you would like to read the full text of the Advice Memoranda, please go to

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