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Ninth Circuit Rejects FedEx Effort to Portray Drivers as Independent Contractors

Friday, August 29th, 2014

Bill Jhaveri-WeeksToday, 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.

 

10 Ways President Obama Can Take Executive Action on Immigration that Protects Workers' Rights Now

Wednesday, August 27th, 2014

Kenneth QuinnellEmilio 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:

  1. 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.
  2. 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.
  3. Discourage employers from firing employees who do the right thing and attempt to rectify their documents and tax records.
  4. Create a process to protect workers against retaliation because they form or join a union or file a health and safety violation.
  5. Provide workers timely information about immigration audits to protect employees’ rights on the job.
  6. Terminate programs that subject workers to inconsistent local enforcement standards rather than uniform federal policies.
  7. 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.
  8. 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.
  9. Clarify the standards for what constitutes a workplace crime against immigrant employees so they have more protection against unscrupulous employers.
  10. 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.

 

 

The Myth of the Disgruntled Employee

Tuesday, August 26th, 2014

marvin-e-krakow-LX322826-3[1]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).

 

12 Recent Victories for Workers in Raising Wages and Collective Bargaining

Friday, August 22nd, 2014
Kenneth Quinnell

Kenneth Quinnell

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.

PAGA: A Decade of Victories

Wednesday, August 20th, 2014

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Cecilia Guevara ZamoraThis 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.

 

 

 

 

Hobby Lobby Ruling Puts Ideology Over Sound Health Policy

Thursday, July 3rd, 2014

Dian PalmerThe Supreme Court today sided with corporate interest over the health of working people in their ruling in the Hobby Lobby case.

Nurses know how important the relationship between a patient and their healthcare provider is in ensuring the best healthcare outcomes. Allowing politics and ideology to define healthcare policy is a bad prescription for women’s health.

Depending on where you work, the court’s ruling allows your boss to make decisions about your healthcare based on his or her religious beliefs. As a nurse who spent 25 years on the front lines of care, I know this is not sound health policy.

This ruling harms millions of women and puts them in real economic and emotional distress. Access to certain reproductive health services will now depend on where you work and how much you make.

Women across the country will now be forced to make tough choices between using recommended forms of birth control and keeping gas in the car or food on the table.

SEIU nurses fought for decades for healthcare reform. While this is a disappointment, it is not the end of our fight. Across the country, we vow to fight back and continue to advocate for the health of our patients.

Dian Palmer is actively involved in improving working conditions and patient care. Currently, she is President of SEIU Healthcare Wisconsin and an Executive Board Member of SEIU. She is a member of the Milwaukee Chapter Black Nurses Association, and a Governor’s Appointee to the State of Wisconsin Minimum Wage Task Force. In addition, she serves as a member of the Democratic Party of Wisconsin Board, the UWHCA Public Authority Board of Directors and the Wisconsin Citizen Action Board of Directors.

This post originally appeared on the SEIU Blog on June 30, 2014. Reprinted with permission.

Take A Made-in-America Vacation

Thursday, July 3rd, 2014

Image: Mike HallWhat could be more “Made in America” than a good old USA summer vacation that’s union made, too? Here are some tips from Union Plus.

Check out the Union Plus Travel Center—the travel and entertainment section offers exclusive discounts for union members. The website also features hotels, airlines and rail service available in the region you’ll be visiting. If you’re taking a road trip to see the United States, make sure it’s in a union-made car, whether it’s the Chevrolet that Dinah Shore sings about in the vintage clip above or any other union-made vehicle on the UAW’s 2014 list here.

To find a union hotel, visit the Hotel Workers Rising guide, where you also can download UNITE HERE’s hotel guide app.

If you are headed to a major theme park, many are staffed by union members, including the 36,000 members of 18 unions at the Disney Parks in Anaheim, Calif., and Orlando, Fla. On top of that, several parks offer discounts through Union Plus. Actors’ Equity (AEA) also represents cast members working in many smaller theme parks.

AFSCME represents thousands of municipal workers at city and state parks and zoos. U.S. Interior Department workers who staff federal parks and monuments are also union-represented—by the National Federation of Federal Employees (NFFE), an affiliate of the Machinists (IAM). AFGE represents many employees who build exhibits, conduct research and maintain the world-renowned Smithsonian Institution in Washington, D.C.

Thousands of employees working in Major League Baseball stadiums are represented by several unions—including AFSCME, UNITE HERE and SEIU.

If you’re going to visit California, check out Labor 411, for a directory of union hotels, entertainment venues and other union-represented Los Angeles-area businesses and be sure to take a look at the new San Francisco guide.

Mike Hall has been a member of the AFL-CIO since 1989 and has written for several publications, focusing on legislation and politics; particularly grassroots mobilization and workplace safety. 

This article originally appeared in AFL-CIO blog on July 3, 2014. Reprinted with permission.

Real Economic Opportunity for Women in the Workplace

Monday, June 23rd, 2014

seiuMy job as a family child care provider for the past 21 years is the lowest paying job I have ever had. I put my earnings right back into my business and what is left is not a lot. But the best part of this job is working with children. It is extremely rewarding to see all of your work reciprocated back to you instantly.

Being a part of the SEIU Local 99 Family Child Care Providers Union is one of the best moves I could have made. It helped me see that we are stronger together. Together, we can fight injustice and win.

Over the years, I have shared conversations with state and federal lawmakers that have led to bills, and finally to laws that have made life easier for people in my community and parents of the children in my care. I have stood in solidarity with other providers and shared stories about the wonderful work we do with legislators and even with our governor.

Women make up nearly two-thirds of all low wage workers in this country. When we come together and bargain collectively, we can raise wages and gain valuable benefits that can improve our lives and the lives of our families. For example, child care and home care workers in states across the nation have come together as members of SEIU to secure raises that lift themselves and their families out of poverty.

I have seen doors that were once bolted shut, slowly crack open and are now opening a bit wider. Together, women in a seemingly “common” position such as child care provider can do uncommonly great things that make life better for all of us and our families.

About The Author: Tonia McMillian is a California child care provider and working mom.

This blog post first appeared on SEIU.org on Wednesday, June 18, 2014. Reprinted with permission.
http://www.seiu.org/2014/06/real-economic-opportunity-for-women.php

At Uber, 'The Other Dude In The Car' Demands Some Respect

Thursday, June 19th, 2014

Uber, the fast-growing ride-sharing service based in San Francisco, has a reputation for not caring much about its reputation, glibly dismissing protests by cab driversscrutiny from regulators and complaints from customers as its annual revenues have soared to over $200 million.

But Uber’s cavalier attitude towards critics may now be getting the company in trouble with its own drivers, dozens of whom protested outside Uber’s corporate headquarters this week after CEO Travis Kalanick made public comments in which hemused about replacing human drivers with robots:

The reason Uber could be expensive is because you’re not just paying for the car—you’re paying for the other dude in the car. When there’s no other dude in the car, the cost of taking an Uber anywhere becomes cheaper than owning a vehicle. So the magic there is, you basically bring the cost below the cost of ownership for everybody, and then car ownership goes away.

This isn’t the first time Uber has had trouble with “the other dude in the car.” In May, nearly 100 drivers protested the high commission rates Uber collects, claiming that Uber’s pursuit of higher profit margins leaves many drivers working for less than minimum wage. And in April, nearly 250 drivers in Seattle signed “Show of Interest” cards distributed by Teamsters Local 117, announcing their intention to form a union or join the Teamsters-affiliated taxi drivers’ union.

These organizing efforts pose a serious threat to Uber’s bottom line: Critics argue that the company has based much of its success on undercutting unionized and regulated taxi services in major American cities. If its drivers demand higher wages, that model could be put in jeopardy.

This blog originally appeared in In These Times on June 18, 2014. Reprinted with permission.
At Uber, ‘The Other Dude in The Car Demands Some Respect

About the Author:  Ethan Corey is an In These Times Summer 2014 editorial intern.

 

 

 

‘$10.10 is Not Enough,’ Federal Contract Workers Tell Obama

Thursday, June 19th, 2014
The labor federation Change to Win is urging President Barack Obama to do more to help low-wage workers employed by private contractors at federal installations.

Yesterday, some 50 workers and supporters involved with Change to Win’s Good Jobs Nationcampaign rallied at the entrance to the Smithsonian Institute’s National Air & Space Museum. Chanting “$10.10 is not enough,” the group called on Obama to issue a new executive order that would require private businesses with government contracts to negotiate union agreements with their workers.

Earlier this year, Obama issued a similar order raising the minimum wage to $10.10 an hour for federal contractors, following agitation by Good Jobs Nation. Now, the campaign is hoping that Obama will go further; according to Good Job Nation organizer Paco Fabian, an executive order encouraging union organizing has long been a goal of some labor activists, who point to cases where some anti-union government contractors have suppressed union organizing campaigns using public funds.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

More information about Bruce Vail Bruce Vail

This article originally appeared in In These Times on June 13, 2014. Reprinted with permission.
http://inthesetimes.com/working/entry/16832/10.10_not_enough

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