Archive for August, 2014
Friday, August 29th, 2014
Today, the Ninth Circuit Court of Appeals held, under California law, that FedEx drivers are employees, not independent contractors. As a result, Fed Ex, which had required the 2300 California drivers included in the case to pay for their own trucks, equipment and expenses, and work 9.5 to 11 hour days, is liable for violating the Labor Code. The case is Alexander v. FedEx, 12-17458, __F.3d__ (9th Cir. Aug. 27, 2014).
The contract that the FedEx drivers were required to sign appears to have been drafted in an effort to persuade a reviewing court that the drivers are independent contractors – it refers to the drivers as “contractors,” and says that no FedEx officer or employee would “have the authority to direct [the driver] as to the manner or means employed … [or] have the authority to prescribe hours of work … or other details of performance.” The problem for FedEx, however, was that, in the contract and elsewhere, FedEx did tell the drivers in great detail how, when and where to do their work. As Judge Trott wrote in his concurring opinion, in a quote (reportedly) attributable to Abraham Lincoln: “If you call a dog’s leg a tail, how many legs does a dog have? …. Four. Calling a dog’s tail a leg does not make it a leg.”
In applying the principal factor of California’s “right-to-control” test, the Ninth Circuit observed that FedEx’s detailed control over drivers included: control over the appearance of the drivers, from their mandatory uniforms to the color of their shoes and socks and the appearance of their hair; the specific shade of white paint to be used on their trucks, the mandatory use of FedEx logos on trucks, mandatory truck dimensions, and interior shelves in the truck of particular materials and dimensions; and the structuring of work-loads such that drivers had to work 9.5 to 11 hours per day, with requirements that they not leave the FedEx terminal in the morning until all of their packages were available, and return to the terminals no later than a specified time. FedEx argued that drivers had some flexibility in the order in which they made their deliveries, and that they were permitted to be “entrepreneurial” by hiring helpers to allow them to handle multiple routes, but the Court, observing that FedEx maintained close control over the assignment of work and the right to reject proposed helpers, concluded that even if drivers had control over some aspects of the job, FedEx maintained “all necessary control.” Other relevant factors included the fact that the drivers worked for FedEx under long (one- to three-year contracts), which suggested that they were really employees, and that they were assisting the Company by carrying out its core business function – the delivery of packages.
The case was procedurally interesting in that it was filed in California but then consolidated into multi-district litigation in the District Court for Northern District of Indiana. The Indiana court, applying California law, granted summary judgment to FedEx. The Ninth Circuit Court of Appeals not only disagreed that FedEx was entitled to summary judgment, but held that the drivers were entitled to summary judgment.
The case stands for the proposition that if an employer’s workforce is doing the work of employees, the employer cannot avoid complying with the Labor Code’s employee protections by artful contract language: calling a dog’s tail a leg does not mean a dog has five legs.
This blog originally appeared in Bryan Schwartz Law on August 27, 2014. Reprinted with permission. http://bryanschwartzlaw.blogspot.com
About the Author: William (Bill) Jhaveri-Weeks is an associate at Bryan Schwartz Law, an Oakland, CA, employees’ and workers’ rights law firm. He focuses on employment discrimination, whistleblower, and wage and hour class action claims. Previously, Mr. Weeks practiced for four years at Debevoise & Plimpton LLP in New York City, where he litigated complex contract, tort, antitrust, and securities disputes. From 2008 to 2009, Mr. Weeks clerked for the Honorable R. Guy Cole, Jr., of the United States Court of Appeals for the Sixth Circuit, in Columbus, Ohio. Mr. Weeks received a J.D. magna cum laude from New York University School of Law in 2007, where he was a member of the Order of the Coif. He received a B.A. cum laude in History from Yale University in 2002. During law school, Mr. Weeks worked for the New York labor law firm Spivak Lipton LLP. http://www.bryanschwartzlaw.com/Weeks.html
Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Mr. Schwartz and his firm have fought to prohibit discrimination, retaliation, and harassment obtained reasonable accommodation for disabled employees, vindicated whistleblowers’ rights and ensured that corporations pay workers all wages they are owed. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers.
Bryan Schwartz Law is also one of the few Bay Area-based law firms with extensive experience representing Federal employees in their unique Merit Systems Protection Board and Equal Employment Opportunity Commission complaints.
Wednesday, August 27th, 2014
Emilio Garcia began working for U.S. Fibers in South Carolina in April 2010 as a maintenance worker. He worked 12-hour shifts with only a 30-minute lunch break because his wife and children depend on him. Garcia said that from the very beginning he and other workers were humiliated by management. Conditions were so bad that he and other workers decided to organize themselves with the assistance of the United Steelworkers (USW). But management wasn’t happy with Garcia’s organizing efforts, and they slowly began cutting his hours before firing him in July of this year. Garcia told his story to an audience today at a panel discussion hosted by the AFL-CIO.
The discussion’s main thrust was the need for President Barack Obama to advance the rights of workers by taking executive action on immigration. Emilio said: “I’m here because it is important that while the president considers taking administrative action to protect many of our families from being deported, he also has to consider that we are all workers and will remain as easy prey of exploitative companies if we do not count with any relief.”
Here are 10 ways Obama can take executive action right now to provide relief to workers:
- Extend work authorization to as broad a portion of the undocumented population as possible by providing deferred action to all who would qualify for a pathway to citizenship under the bipartisan Senate bill.
- Design a deferred action program that is broad, clear, not burdensome or costly and doesn’t exclude those who work in part-time or temporary jobs or those who work in the underground economy.
- Discourage employers from firing employees who do the right thing and attempt to rectify their documents and tax records.
- Create a process to protect workers against retaliation because they form or join a union or file a health and safety violation.
- Provide workers timely information about immigration audits to protect employees’ rights on the job.
- Terminate programs that subject workers to inconsistent local enforcement standards rather than uniform federal policies.
- Make sure that immigration-related violations don’t lead to the criminalization of immigrant communities and ensure that individuals receive due process before being removed.
- Instruct immigration enforcement agents to make sure that carrying out their duties doesn’t interfere with workers’ rights in an effort to prevent immigration status from being used as a weapon against workers who are involved in labor disputes.
- Clarify the standards for what constitutes a workplace crime against immigrant employees so they have more protection against unscrupulous employers.
- Engage in more public education promoting naturalization and reduce processing fees and expand fee waivers to ensure that more low-wage workers can access citizenship.
Lorella Praeli of United We Dream (UWD) highlighted the legal significance of executive action:
“In line with many legal scholars, UWD fully believes that the President has the constitutional and legal authority to defer action on individual cases and confer employment authorization to millions on the grounds of prosecutorial discretion. The President has a historic opportunity to show courage where Republicans showed cowardice by starting the process that only Congress can finish.”
Nadia Marin-Molina, the National Workers’ Rights coordinator for National Day Laborer Organizing Network, added:
“For administrative relief to be effective, it must take the weapon of intimidation away from unscrupulous employers who have used the threat of unchecked deportations to silence workers and lower standards. Workers who build our cities should not fear being deported from them.”
This blog appeared in AFL-CIO on August 26, 2014. Reprinted with permission. http://www.aflcio.org/Blog/Political-Action-Legislation/10-Ways-President-Obama-Can-Take-Executive-Action-on-Immigration-that-Protects-Workers-Rights-Now.
About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars. Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History. His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.
Tuesday, August 26th, 2014
Removed from the distant wars currently in the news, it is easy to see how neighbors alike in so many ways must dehumanize one another in the midst of conflict. It’s a form of blindness that is common not just to war, but to all conflict – and one that I see all too often in my practice.
Let me introduce you to the people who come to our law office for help. Many have worked for the same employer for long years, often for decades. Most feel strong and warm connections to their employers and co-workers. They struggle, as we all do, with the challenges of life, with their health, with family responsibilities, with financial reversals, and with their careers. They come to see us, because their bosses have disrupted their work, their source of income, their identity. They are not irrational. They are not trying to game the system. They work with a seriousness of purpose.
Who are they? They do every kind of work: executives, janitors, public servants, truck drivers, waiters, teachers, and artists. They come from every imaginable background. They have advanced degrees; they did not learn to read. Their families are established; they are recent immigrants, accompanied by their children who translate. Some are old, some young, some rich, some poor. They are straight. They are gay. They have strong religious beliefs. They have no religious beliefs. They are breadwinners with obligations to pay college tuition or to support an elderly parent. They are men and women near the ends of long careers who need another few years of work, because they cannot afford to retire. They are from every racial and ethnic background.
If they share anything in common, it is that they are not happy to find themselves in a lawyer’s office. When I ask potential clients about their previous dealings with lawyers, the most common response is that they have never hired a lawyer, and have never been involved in a lawsuit. Most of them come to us reluctantly, and they apologize for doing so. They will explain that they would prefer to consider all other options instead of filing suit. They come, despite that reticence, because they feel they have been seriously hurt and profoundly disrespected by their employers.
Who brings a lawsuit? Here are a few examples from my own recent experience: a store manager falsely accuses a 60-year old retail assistant of failing a drug test, and fires him. New owners replace a worker who successfully led a computer software development department for over thirty years and replace her with a less qualified, younger man. An executive needs time off to care for his dying wife; the owner fires him a week after she dies.
In each of these cases, the prevailing myth of the “disgruntled employee” hides the reality of our common humanity. It is impossible to hear the adjective “disgruntled” without filling in the noun “worker,” and conjuring an image of a madman spraying bullets from an automatic rifle.
The myth serves intertwining legal and psychological purposes for employers and their counsel. A long term, productive employee is viewed as damaged. He or she suddenly becomes a “complainer,” “a trouble maker,” “not a team player,” “unable to communicate,” “uncooperative,” “unresponsive to constructive criticism,” “an alarmist,” someone who “games the system,” “insubordinate.” Managers targeting these employees sometimes send lengthy and detailed emails documenting “deficiencies” which were neither observed nor noted before the employee raised questions of discrimination or harassment on the job. As part of this management mythology, employers assume that an employee who complains does so out of a failure of character: the employee must be permanently and irrationally dissatisfied by his or her lot in life, and with his or her workplace in particular. They believe, or claim to believe, that the employee is dangerous.
Management’s goal is to cast the person as fundamentally unlikeable, less worthy of respect, “less human.” Ultimately, management lawyers who demonize the worker who reports a problem by treating them as quasi-criminals, put the entire workforce at risk. When the starting point is that complaints come mainly or exclusively from defective personalities, employers fail to take reports seriously. They fail to remedy problems before they grow more serious. They ignore warning signs of sexual predators. They fail to correct safety hazards. They allow mistreatment of older workers. They make it harder for a parent to care for his or her children.
There is a better way. When a manager puts aside defensiveness and character assassination, and sees the care and loyalty driving an employee complaint, he or she is likely to recognize issues that are critical to the well-being of the employer’s enterprise. Unfortunately, conflict feels less troubling when the enemy isn’t quite so human. I sometimes think these employers missed a chance to get to know my clients in all their humanity. But perhaps it is simply easier for them to forget the people they once knew.
This blog originally appeared in CELA VOICE on August 14, 2014. Reprinted with permission. http://celavoice.org/author/marvin-krakow/.
About the author: Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).
Friday, August 22nd, 2014
While it certainly seems that far-right extremists are waging an all-out war on working families and their rights, workers aren’t just defending themselves; they are fighting to expand their rights and achieving some significant gains. Here are 12 recent victories we should celebrate while continuing to push for even more wins.
1. AFSCME Sets Organizing Goal, Almost Doubles It: AFSCME President Lee Saunders announced that the union has organized more than 90,000 workers this year, nearly doubling its 2014 goal of 50,000.
2. Tennessee Auto Workers to Create New Local Union at VW Plant: Auto workers at Volkswagen’s plant in Chattanooga, Tenn., announced the formation of UAW Local 42, a new local that will give workers an increased voice in the operation of the German carmaker’s U.S. facility. UAW organizers continue to gain momentum, as the union has the support of nearly half of the plant’s 1,500 workers, which would make the union the facility’s exclusive collective bargaining agent.
3. California Casino Workers Organize: Workers at the new Graton Resort & Casino voted to join UNITE HERE Local 2850 of Oakland, providing job security for 600 gambling, maintenance, and food and beverage workers.
4. Virgin America Flight Attendants Vote to Join TWU: Flight attendants at Virgin America voted to join the Transport Workers, citing the success of TWU in bargaining fair contracts for Southwest Airlines flight attendants.
5. Maryland Cab Drivers Join National Taxi Workers Alliance: Cab drivers in Montgomery County, Md., announced their affiliation with the National Taxi Workers Alliance, citing low wages and unethical behavior by employers among their reasons to affiliate with the national union.
6. Retail and Restaurant Workers Win Big, Organize Small: Small groups of workers made big strides as over a dozen employees at a Subway restaurant in Bloomsbury, N.J., voted to join the Retail, Wholesale and Department Store Union. Meanwhile, cosmetics and fragrance workers at a Macy’s store in Massachusetts won an NLRB ruling that will allow them to vote on forming a union.
7. Minnesota Home Care Workers Take Key Step to Organize: Home health care workers in Minnesota presented a petition to state officials that would allow a vote on forming a union for more than 26,000 eligible workers.
8. New York Television Writers-Producers Join Writers Guild: Writers and producers from Original Media, a New York City-based production company, voted to join the Writers Guild of America, East, citing low wages, long work schedules and no health care.
9. Fast-Food Workers Win in New NLRB Ruling: The National Labor Relations Board ruled that McDonald’s could be held jointly responsible with its franchisees for labor violations and wage disputes. The NLRB ruling makes it easier for workers to organize individual McDonald’s locations, and could result in better pay and conditions for workers.
10. Workers Increasingly Have Access to Paid Sick Leave: Cities such as San Diego and Eugene, Ore., have passed measures mandating paid sick leave, providing workers with needed flexibility and making workplaces safer for all.
11. Student-Athletes See Success, Improved Conditions: College athletic programs are strengthening financial security measures for student-athletes in the wake of organizing efforts by Northwestern University football players. In addition, the future is bright as the majority of incoming college football players support forming a union.
12. San Diego Approves Minimum Wage Hike; Portland, Maine, Starts Process: Even as Congress has failed to raise the minimum wage, municipalities across the country have taken action. San Diego will raise the minimum wage to $11.50 an hour by 2017, and the Portland, Maine, Minimum Wage Advisory Committee will consider an increase that would take effect in 2015.
This blog originally appeared in AFL-CIO America’s Unions on August 20, 2014. Reprinted with permission.
Author’s name is Kenneth Quinnell. He is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars. Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History. His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.
Thursday, August 21st, 2014
A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.” These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen. Last month, Wolfe brought suit against Tinder for sex discrimination and harassment. Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse. Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”
The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience. Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference. After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats. She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”
In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances. And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry. An online video game was even released in which users could “beat up” Sarkeesian. These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.
There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution. These laws provide strong protections against gender harassment in employment and other contexts. So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?
It doesn’t help that tech companies are also notorious for their lack of diversity. This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white. The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade. These numbers confirm what the stories reflect — that this industry truly is “a man’s world.” And this needs to change.
Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive. Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.” While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected. Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.
Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech. This also needs to change. Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.
But change will not be achieved without help from sources outside the industry. Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry. We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance. If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”
The tech world doesn’t have to be a man’s world, and it shouldn’t be.
This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.
Wednesday, August 20th, 2014
Every morning, workers at Golan’s Moving & Storage in the Chicago suburb of Skokie are ordered to arrive at work by 6 a.m. to prepare trucks for the day. If they are late, they can be suspended for several days or otherwise disciplined. Yet they typically don’t even start getting paid until about 8 a.m.—when they board a truck bound for their assignment.
This situation is among the many injustices that spurred Golan’s workers to organize with the faith-based workers rights group Arise Chicago last year before unionizing with Teamsters Local 705. Since December 2013, the first contract negotiations have dragged on, with management canceling planned sessions 12 times in six months, according to the Teamsters.
So on July 28, about four-fifths of Golan’s workers walked out on strike. Negotiations are theoretically continuing, but Teamsters Local 705 business agent Richard De Vries says that the company officials walked out of their most recent session, on August 14, after just 41 minutes.
The union has filed various Unfair Labor Practices charges with the National Labor Relations Board, and a federal mediator was brought in to oversee the negotiations.Still, De Vries tells In These Times that these measures have so far not prevented Golan’s from essentially refusing to bargain. He thinks that the company is trying to delay signing a contract until December, at which point under labor law they can call for an election to decertify the union—because a year will have passed with no contract signed.
“This is our remedy: going on strike,” says De Vries. He reports that more than 80 workers out of a total of about 100 are on strike, including members of the company’s two separate sections, which do local and long-distance moves.
On Saturday, August 16, more than 100 supporters, including Teamsters members from other companies, joined the workers on the picket line. Leaders of Christian, Jewish and Muslim faiths spoke to the crowd and asked the owners—Israelis who reportedly named the company for the region Israel captured from Syria during the Six-Day War—to recognize the concepts of workers’ rights and human dignity enshrined in all three world religions.
Onesimo Peña was one of the workers who contacted Arise last summer, frustrated with what he told In These Times was “so many abuses” suffered by his co-workers. He also notes that in more than a decade working for the company, his wages have only risen from $12 to $12.50 an hour, even though he has often been called on in emergencies or for important jobs.
“We’ve tried too many times to get the owners to listen to us but they wouldn’t,” says Peña. “So we went to Arise Chicago.”
In turn, Arise connected the workers with Teamsters Local 705. And marshaling support for unionizing was easy, Peña remembers.
“Everyone was tired of this situation,” he says.
Shortly after the workers voted to unionize, Peña says his wages increased to $14 an hour. The company also started paying overtime and made a few other concessions, including with regard to safety. De Vries says he can only speculate as to why, though Golan’s may have been trying to dissuade workers from going on strike or trying to weaken the union in bargaining.
Golan’s workers don’t have insurance, paid sick days or vacation days or any other benefits. According to organizers, such as Arise Chicago’s Jorge Mujica, “There is wage theft all over the place,” including the aforementioned unpaid preparation work time, and logged hours that go missing from paychecks until workers complain.
Plus, workers’ wages are often further reduced by fines for a wide range of infractions. Jose Reyes, a Golan’s employee for 10 years, says he was once fined $700 because one of the other movers in the crew he oversaw had a small tear in his pants. Reyes tells In These Times that workers could also be charged for forgetting to leave the keys to their personal car with management before they head off to a job, or for failing to call the customer to say they are running late.
“There’s no warning, you get back from the job and they are waiting for you with a fine,” he says.
He and Peña also say managers have offered them incentives for reporting other workers for violations.
“They approached me and said, ‘If you turn people in, you will have your job forever, you can have a raise,’” says Reyes, who is on the union negotiating committee. “They were trying to buy me off.”
Worker Miguel Flores tells In These Times that under the terms worked by long-distance drivers who move customers to other states, he has earned only $40 for spending 10 hours unloading boxes at a home. (Mujica explains that this is likely technically legal under labor provisions for interstate commerce.)
Movers in the long-distance unit are particularly upset that they are not compensated for waiting time of up to a day or more if customers are not ready when they arrive. These employees are paid based on factors such as miles driven and the volume of the move. So when a customer isn’t ready, they’re forced to spend time on the road unpaid, sleeping and waiting in their truck when they otherwise could be earning money.
De Vries says payment for such “detention time” is a major demand in negotiations. So far, though, management has offered only token concessions during the negotiation sessions that have occurred. “They have agreed to pay for showers at a truck stop,” which cost a few dollars, he says. And in response to union demands for paid days off, Golan’s offered a total of $10 a day for up to 10 vacation days, De Vries continues.
Golan’s also employs workers under the J-1 visa “work and study-based exchange” program, drawing students from around the world for 90-day stays in the United States. Silviu Radu joined the program while studying for his Masters in business administration at a university in his home country of Romania. After starting work at Golan’s in June and got to know many of his co-workers. He hadn’t been present for many of the complications surrounding organizing and negotiating, so the strike came as a bit of a surprise to him.
“I rode my bike to work and everyone was outside,” he tells In These Times. “I was like ‘Hey guys, what’s going on?’”
Once he learned about the walkout, though, he promptly joined it, as did several other J-1 workers, according to Radu and De Vries. The visa does not allow companies involved in walkouts to staff J-1 employees, so Radu is looking for another job while spending time on the picket lines.
“You get to bond with your colleagues,” Radu says. “These are good people, hard-working people who help each other.”
The J-1 visa—which has drawn controversy in the past over its reported abuse by employers including Hershey’s—cost Radu about $2,000, he says, including other fees connected to the program. Even so, he notes, laughing, that he “was making $10.50 an hour on the truck.”
For its part, Golan’s has largely responded to the actions with denial. Two large green signs outside the company, dated August 12 and addressed to workers from company secretary Yehuda Bitton, read: “The many reckless and dishonest statements about Golan’s and me are fabrications by the union and its representatives. Those of you who have worked for Golan’s for many years know these statements are not true.”
A Golan’s official inside the company during the rally declined to talk, and the spokesperson he referred In These Times to did not return a call for comment.
The company has also attempted to play on the fears on many of its workers regarding deportation. The signs, which are written in English and Spanish, go on to read that the union has threatened to call immigration authorities. De Vries says the U.S. State Department found out about the strike through the J-1 students, likely spurring the company to make that statement. The union has not contacted immigration authorities and would not do so, he argues.
Various workers tell In These Times they are confident the strike will force the company into meaningful negotiations for a contract with significant improvements. They say they’ve heard customers have canceled jobs because of the strike, and that little or no work has been happening at Golan’s. During the Saturday rally a moving truck entered the facility, but because it was manned by only one employee, De Vries said it was likely just a “show.” “You can’t move furniture with one person,” he says.
“We’ve seen trucks leaving and then find them parked 20 blocks away; they’re not working,” Mujica adds.
De Vries says that very few moving companies are organized, and most non-unionized workplaces do not offer their largely immigrant workforce insurance or benefits. Hence, the Golan’s workers’ unionization and strike could be seen as a precedent-setting development for the industry.
Both Reyes and Peña says they take pride in their work and want to continue at Golan’s, only under better conditions. Still, Reyes says he tells his three kids, only half joking, “When you see a Golan’s truck, run and hide, so you don’t end up like me.”
This blog originally appeared in In These Times on August 19, 2014. Reprinted with permission. http://inthesetimes.com/working/entry/17100/chicago_movers_stage_groundbreaking_strike
About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist and instructor who currently works at Northwestern University. Her work has appeared in the New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Mayor 1%: Rahm Emanuel and the Rise of Chicago’s 99 Percent. She is also the co-author of Shoot an Iraqi: Art, Life and Resistance Under the Gun and the author of Revolt on Goose Island: The Chicago Factory Takeover, and What it Says About the Economic Crisis. Look for an updated reissue of Revolt on Goose Island in 2014. In 2011, she was awarded a Studs Terkel Community Media Award for her work.
Wednesday, August 20th, 2014
This summer marks the ten-year anniversary of California’s Private Attorneys General Act of 2004, an essential weapon in an employee rights advocate’s arsenal. Under PAGA an aggrieved employee can recover civil penalties on behalf of the State’s Labor Workforce Development Agency (LWDA) for all current and former employees for Labor Code violations. §2699(a). Originally enacted to attack California’s underground economy – businesses unlawfully operating outside of the state’s tax and licensing requirements – and enhance revenues (California Bill Analysis, S.B. 796 Sen., 4/29/2003), PAGA gives workers’ rights advocates an ability to vindicate the State’s interest in obtaining redress for flagrant wage violations statewide.
I. PAGA Representative Actions Do Not Need to Meet Class Action Requirements.
In Arias v. Superior Court (2009) 46 Cal.4th 969, the plaintiff brought a representative PAGA claim for wage and hour violations, among other claims. Id. at 976. The trial court granted defendant’s motion to strike the PAGA claim and other causes of action, for failure to comply with the pleading requirements for a class action. Id. Subsequently, the Court of Appeal issued a peremptory writ of mandate directing the trial court to strike other causes of action, but not the PAGA claim. Id. The California Supreme Court agreed with the Court of Appeal – holding that a plaintiff suing under PAGA did not need to comply with California’s class action requirements. Id. at 988.
Arias addressed and dismissed three arguments posed by defendants: (1) the Court of Appeal’s construction of PAGA would lead to absurd results because one subdivision in the statute allows for class actions, while another subdivision does not, (2) the legislative history indicates the legislature intended actions under the act to be brought as class actions, and (3) the act violates due process rights of defendants. Id. at 982-84. Rejecting these positions, the Court held that a PAGA plaintiff sues as the “proxy or agent” of the state’s labor law enforcement agencies. Id. at 986. As such, a PAGA plaintiff represents the same legal rights and interests as state labor law enforcement agencies. Id. Ultimately, the PAGA claim is an enforcement action, not a class action brought for recovery of civil penalties, so it need not comply with class action pleading requirements.
Most federal courts have likewise held that a PAGA claim need not be certified under Rule 23. See, e.g., Cardenas v. McLane Foodservices, Inc. (C.D. Cal., Jan. 31, 2011) SACV 10-473 DOC FFMX, 2011 WL 379413, *3 (a PAGA claim neither purports to be a class action nor intends to accomplish the goals of a class action); Sample v. Big Lots Stores, Inc. (N.D. Cal., Nov. 30, 2010) C 10-03276 SBA, 2010 WL 4939992, *3 (the Class Action Fairness Act (CAFA) “applies only to state statutes or procedural rules that are similar to a federal class action brought under Rule 23” – but PAGA claims are distinct from class actions). But see Fields v. QSP, Inc. (C.D. Cal., June 4, 2012) CV 12-1238 CAS PJWX, 2012, WL 2049528, *5 (plaintiff must meet requirements of Rule 23 because PAGA is a procedural mechanism).
II. PAGA Claims Cannot be Forced to Individual Arbitration.
As the Nation’s High Court shows increasing animus towards class actions – reimagining the Federal Arbitration Act of 1925 (FAA) to diminish Federal Rule of Civil Procedure 23’s efficacy as a method through which employees and consumers can vindicate their rights – the State of California, through private counsel, can still pursue relief for workers through PAGA representative actions.
In AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, the U.S. Supreme Court relied on the FAA to abrogate Discover Bank v. Superior Court (2005) 36 Cal.4th 148, which had held that the party with superior bargaining power unconscionably carried out a scheme to cheat large numbers of consumers out of individually small sums of money, using an arbitration agreement with a class action waiver to prevent class action and meaningful relief. This blog has discussed Concepcion previously on several occasions: here, here, and here.
Yet, while Concepcion stunted class action litigation, it did not address PAGA representative actions brought on behalf of the LWDA. Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, review denied (Oct. 19, 2011), cert. denied, 132 S.Ct. 1910 (Apr. 16, 2012), held that PAGA claims are not subject to individual arbitration agreements. In Brown, the plaintiff brought both a class action claim and a PAGA claim against her employers for various labor code violations. Id. at 494. The employers moved to compel individual arbitration based on a provision in the employment contract, which they argued prohibited both class actions and representative PAGA claims. Id. at 495. While the class claim fell to arbitration, the PAGA claim averted arbitration. The Brown court concluded Concepcion did not address – and thus could not be binding on – PAGA, which is an enforcement action in which employees and their counsel act as an “agent or proxy” of the state. Id. at 503. See also Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 1119, 1124 (PAGA is not within the scope of individual arbitration because a PAGA claim is not an individual claim). Other courts disagreed with Brown and Reyes, including Iskanian v. CLS Transp. Los Angeles, LLC (Cal. Ct. App. 2012) 142 Cal.Rptr.3d 372. In Iskanian, the Court of Appeal declined to follow Brown and Reyes in a case brought by drivers, who brought a PAGA representative action but had signed an employment contract with an individual arbitration agreement. Id. at 375, 384.
Reversing, the California Supreme Court held that a PAGA claim could not be subject to an individual arbitration provision in an employment contract. Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 384. Bryan Schwartz Law’s blog post on Iskanian is available here.
The Court reasoned that a PAGA action was a type of qui tam action (Id. at 382) – whereby a plaintiff brings an action on behalf of the State. However, unlike a pure qui tam case, where the relator collects a “bounty,” the 25% goes to all the aggrieved employees – not just the plaintiff. Id. PAGA is not and has never been intended as a “bounty hunter” statute.
The Court also reaffirmed Arias’ holding that a plaintiff bringing a PAGA claim acts as an “agent or proxy” of the state’s labor law enforcement agencies. Id. at 380-381. The Court also drew from the Supreme Court’s decision in EEOC v. Waffle House, Inc. (2002) 534 U.S. 279, which held that an employment arbitration agreement governed by the FAA did not prevent the Equal Employment Opportunity Commission (EEOC) from suing an employer on behalf of an employee bound by that agreement for victim-specific relief, because the EEOC was not a party to the arbitration agreement and could bring an enforcement action regardless of the private agreement. Iskanian, 59 Cal.4th at 386. Similarly, a PAGA claim lies outside the FAA’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state. Id.
III. PAGA Creates An Unwaivable Public Policy Right.
Iskanian reminds us that a PAGA creates an unwaivable public policy right: any agreement by employees to waive their right to bring a PAGA claim serves to disable one of the primary mechanisms for enforcing the Labor Code. Id. at 383. Because such an agreement has the “object, … indirectly, to exempt [the employer] from responsibility for [its] own…violation of the law,” (Civ. Code §1668) it is against public policy and unenforceable as a matter of law. Further, a court must review and approve any proposed settlements that attempt to release PAGA claims. See Lab. Code, § 2699(l).
In Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal. 4th 993, 1003, the Court held that PAGA did not create a transferable property right, such that a union did not have standing to bring a PAGA claim on behalf of aggrieved employees. Because of the “simply procedural” language posited in Amalgamated, federal courts have been mixed on the question of the type of right created by PAGA, leading some federal courts to interpret PAGA as a “simply procedural” statute that can be preempted by Rule 23’s class certification requirements. Compare Cunningham v. Leslie’s Poolmart, Inc. (C.D. Cal., June 25, 2013) CV 13-2122 CAS CWX, 2013 WL 3233211, *7 (held that a PAGA claim is a type of qui tam action and thus, substantive in nature); Moua v. International Business Machines Corp. (N.D. Cal., Jan. 31, 2012) 5:10-CV-01070 EJD, 2012 WL 370570, *3 (PAGA transcends the definition of what is simply procedural); and Mendez v. Tween Brands, Inc. (E.D. Cal., July 1, 2010) 2:10-CV-00072-MCE, 2010 WL 2650571, *3 (to find that PAGA creates a wholly procedural right, and that Rule 23 therefore applies, would be to ignore the intent of the legislature in passing the statute); with Fields, 2012 WL 2049528 (PAGA “is simply a procedural statute”) (citing Amalgamated, 46 Cal.4th at 1003); Halliwell v. A-T Solutions (S.D. Cal. 2013) 983 F.Supp.2d 1179, 1183-84 (Federal Rule of Civil Procedure 23 governs all representative claims brought in federal court, even if the underlying individual claims arise under state law)(citing Fields at *5). With Iskanian reaffirming PAGA’s unwaivable public policy right and likening the statute to a qui tam action, which according to Cunningham is substantive in nature, federal courts should think twice before interpreting PAGA as a simply a procedural state statute that can be preempted by federal procedural rules.
IV. PAGA and Fee Shifting
PAGA allows workers their day in court when the cost of litigation would otherwise impede access to justice. In Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, plaintiffs brought an unsuccessful class action for violation of wage and hour laws and unfair competition laws. The employer sought to recover fees for the defeated meal and rest period claims under Labor Code §226.7, invoking §218.5’s two-way fee-shifting provision. The court concluded that §218.5 did not apply to meal/rest claims and that neither party could recover attorneys’ fees for an action brought under §226.7. Id. at 1248. While the Kirby ruling shielded plaintiffs from having to pay an employer’s attorneys’ fees when they are unsuccessful in vindicating claims for denied meal and rest breaks, it also would have left workers in most cases without representation in bringing such claims.
PAGA to the rescue. Under §2699(g)(1), a plaintiff who brings a PAGA claim to recover payment for missed meal and rest breaks can recover attorneys’ fees. PAGA may also be used to seek attorneys’ fees for other statutory provisions which vindicate public policy but do not contain separate fee provisions, such as waiting time penalty claims under Labor Code §203, and whistleblower claims under Labor Code §1102.5.The fee-shifting provision levels the playing field, especially for low-income workers going up against employers that would otherwise drown the workers’ claims in insurmountable litigation costs.
V. PAGA Penalties
In Thurman v. Bayshore Transit Management, Inc., (2012) 203 Cal.App.4th 1112, a case in which a bus driver brought a PAGA claim, the Court of Appeal discussed the issue of PAGA penalties. The Court first held that Thurman could recover civil penalties under Labor Code section 558 which provides in relevant part: “(a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the [IWC] shall be subject to a civil penalty. Id. at1130.
The provision allowing recovery of penalties under PAGA did not extend so far as to allow plaintiff to recover civil penalties under both PAGA and Wage Order 9 (which contained its own civil penalties provision) because doing so would “allow an impermissible double recovery for the same act.” Id. at 1131.
Further, Thurman could recover unpaid wages as part of the civil penalty under PAGA. The Court held that the civil penalty under Labor Code section 558 consisted of both the monetary penalty amount and the underpaid wages, with the underpaid wages going entirely to the affected employee or employees as an express exception to the general rule that civil penalties recovered in a PAGA action are distributed seventy-five percent to the Labor and Workforce Development Agency (LWDA) and twenty-five percent to the aggrieved employees. Id. at 1145.
Aggrieved employees can also recover penalties for missed meal and rest breaks under PAGA as the civil penalty under section 558 applies to “any provision regulating hours and days of work in any order” of the IWC, including the rest period requirement. Id. at 1153.
Additionally, in Sarkisov v. StoneMor Partners, L.P. (N.D. Cal., Apr. 3, 2014) C 13-04834 WHA, 2014 WL 1340762, *5, the Northern District of California held that a PAGA plaintiff can sue for PAGA penalties applicable to his own individual action – that is, for the injuries done just to him—without having to prove all PAGA penalties for everyone else in the same workplace.
VI. PAGA and Joint Employers
PAGA allows employees to hold joint employers accountable for Labor Code violations. In Reynolds v. Bement (2005) 36 Cal. 4th 1075, 1094, overruled on other grounds by Martinez v. Combs (2010) 49 Cal.4th 35, Justice Moreno, in his concurrence, raised the possibility that the then-new PAGA statute would permit individual liability for corporate officials, saying, “the Private Attorneys General Act… authorizes civil penalties for violations of the wage laws that include unpaid wages from ’any employer or other person acting on behalf of an employer,’ a phrase conceivably broad enough to include corporate officers and agents in some cases.” Thurman reaffirms Justice Moreno’s concurrence. Thurman 203 Cal.App.4th at 1144. Federal courts have also held joint employers liable based upon PAGA. In McDonald v. Ricardo’s on the Beach, Inc. (C.D. Cal., Jan. 15, 2013) CV 11-9366 PSG MRWX, 2013 WL 153860, *1 the plaintiff brought a PAGA claim for wage and hour violations, and the defendant moved for summary judgment alleging he could not be held liable under PAGA because he was an absentee owner. Id. The court first made clear that PAGA encompasses “any provision” of the Labor Code. Id. at *3. The Court also said Labor Code § 558 – individually actionable through PAGA – makes clear that an individual defendant can be subject to the penalties of Labor Code § 510 if he is “acting on behalf of an employer who violates, or causes to be violated” Labor Code § 510. (citing Ontiveros v. Zamora (E.D. Cal., Feb. 20, 2009) CIV S-08-567LKK/DAD, 2009 WL 425962). In denying defendant’s summary judgment motion, finding that the owner could be a liable “employer” based upon PAGA, the Court relied on evidence that defendant’s company prepared paychecks, and that defendant signed paychecks, sometimes brought them to be distributed, and made policy decisions pertaining to the company. Id. at *4-5.
VII. Removal to Federal Court
A PAGA action is not easily removed to federal court. Aggrieved employee penalty amounts cannot be aggregated to satisfy amount-in-controversy requirements for purposes of diversity jurisdiction. See Urbino v. Orkin Services of California Inc. (9th Cir. 2013) 726 F.3d 1118. Further, while Pagel v. Dairy Farmers of America, Inc. (C.D. Cal. 2013) 986 F.Supp.2d 1151, 1157, sought to limit Urbino to non-CAFA cases, the holding has been undermined by Baumann v. Chase Inc. Services Corp. (9th Cir. 2014) 747 F.3d 1117. Baumann held that PAGA actions are not sufficiently similar to Rule 23 class actions to trigger CAFA jurisdiction, reaffirming Urbino’s holding that potential PAGA penalties against an employer may not be aggregated to meet the amount in controversy requirement, and holding that CAFA provides no basis for federal jurisdiction over a PAGA action.
VIII. Looking Ahead
There are still some lingering questions pertaining to PAGA. For example, it is still unclear what protections PAGA affords public sector employees and whether the U.S. Supreme Court will choose to foray into uniquely California law once again to force down the Chamber of Commerce-sponsored agenda and squelch California’s PAGA enforcement actions. Despite these uncertainties, with a growing list of favorable jurisprudence, PAGA is becoming an unmatched weapon in the fight for workers’ rights.
This blog originally appeared in Bryan Schwartz Law on August 1, 2014. Reprinted with permission. http://bryanschwartzlaw.blogspot.com/
About the authors:
Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Mr. Schwartz and his firm have fought to prohibit discrimination, retaliation, and harassment, obtained reasonable accommodations for disabled employees, vindicated whistleblowers’ rights, and ensured that corporations pay workers all wages they are owed. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers.
Bryan Schwartz Law is also one of the few Bay Area-based law firms with extensive experience representing Federal employees in their unique Merit Systems Protection Board and Equal Employment Opportunity Commission complaints.
Cecilia Guevara Zamora, a student at the University of California, Davis, School of Law (King Hall) and won an Employee Justice Fellowship to work at Bryan Schwartz Law during summer 2014. During law school, she has worked with the California Department of Fair Housing, the California Rural Legal Assistance Foundation, La Raza Law Students Association of UC Davis, and the Legal Aid Society-Employment Law Center. Guevara Zamora emigrated from Mexico as a child, graduated magna cum laude from UCLA, and served as a high school teacher in Coachella Valley before beginning law school.