Los Angeles, CA: It is a well-known fact that the State of California is, and has remained progressive with regard to standing up for the rights of it undocumented workers. And with good reason: immigrants, including those who don’t necessarily have their papers account for 10 percent of the State’s workforce. Removing the undocumented worker from the equation would have a dramatic and negative impact on the California economy. The State’s defense of the undocumented worker, however, puts California in the crosshairs of the US Department of Justice (DOJ), which is now suing the State of California over its immigration policies.
San Francisco, CA: The rights of employees and consumers alike to have unfettered use of firewall-protected computers without the threat of unwanted infiltration by hackers is now in focus with the filing of a class action compliance lawsuit against Advanced Micro Devices (AMD), one of the premiere manufacturers of microprocessors that power computers in homes and workplaces.
Los Angeles, CA: Another well-known name has been hit with a harassment and discrimination lawsuit after the co-owner of a hair-care company based in California has been accused of sexual harassment. The charges are allegations only and have yet to be proven in a court of law. However, the harassment lawsuit follows in the wake of the #metoo movement that continues to gain momentum across North America.
Napa Valley, CA: A wrongful termination lawsuit brought against a California resort is turning into a case of "he said, she said" in the early stages: the plaintiff suggesting he was fired from his job, while a public relations firm representing the defendant maintains the plaintiff resigned from his job voluntarily after attempts to renegotiate his terms of employment proved unsuccessful.
Los Angeles, CA: A California ERISA lawsuit that began life in the Golden State only to wind up in the highest court in the land was finally resolved this past August with a decision favoring the plaintiffs.
Sacramento, CA: A new year often brings changes and updates to regulations requiring the attention of employers in order to avoid the scornful gaze of the California Division of Occupational Safety and Health (known variously as DOSH or Cal/OSHA). With the health and safety of employees coming into greater focus and scrutiny with each passing year, it behooves not only the employer to become conversant with the new rules, but also employees. To wit, an educated employee is better able to know if, and when his rights have been violated under OSHA if properly conversant with the rules, perhaps with help from a Cal/OSHA lawyer.
Los Angeles, CA: In a decision that will be of interest to any California resident intent on bringing individual wage and hour claims against an employer in addition to claims under The Private Attorneys General Act of California (PAGA), a three-judge appellate panel recently determined that any plaintiff having settled individual claims is barred from continuing with a claim under PAGA.
The reason? A claimant having amicably settled individual claims with an employer is no longer considered an “aggrieved employee” in the eyes of the PAGA statute, and thus no longer qualifies to pursue a related claim under
Apparently you can’t have it both ways…
That ruling was originally made by Los Angeles Superior Court Judge Kenneth R. Freeman back in 2016. On appeal, the three justices with the Second Appellate District agreed with Judge Freeman’s reasoning.
According to court documents (Kim v. Reins International California Inc.), the issue stems from a wage and hour lawsuit brought by plaintiff Justin Kim, an employee of Reins International California Inc. (Reins). Kim, in litigation brought with the help of his wage and hour lawyer and originally envisioned as a class action, accused the defendant of incorrectly classifying employees dubbed ‘training managers’ as exempt from claiming overtime.
According to California wage and hour law, managers and other managerial employees (usually salaried, and earning higher wages) are normally exempt from overtime claims given their jobs as managers usually command a much higher stipend than that of hourly employees. Many employers however have incorrectly classified employees as exempt from overtime pay due to either misinformation, a lack of understanding, or simply in an effort to protect their bottom line by paying less overtime.
Plaintiff claims they worked 50, to 70-hour weeks without overtime pay
Kim however claimed that training managers performed no managerial tasks while toiling for 50, to 70 hours in any given week. Amongst his other allegations, Kim maintained Reins did not provide meal breaks and rest periods as required under California law.
As part of his wage and hour lawsuit, Kim had brought claims under PAGA – the statute which affords employees the opportunity to pursue monetary damages in association with alleged violations to the California Labor Code on their own behalf, that of other employees as well as the State.
Three years ago this month, in January of 2015 most of Kim’s claims were sent to arbitration. At the same time, the plaintiff’s class claims were dismissed and his PAGA claims parked until the results of arbitration were known.
Some months later – and before the arbitrator ruled – the plaintiff accepted a statutory offer to compromise, and agreed to a payment of $20,000 plus attorney’s fees to resolve his individual claims.
While Kim remained interested in pursuing his PAGA claims beyond the settlement he had just accepted, Reins moved for summary judgement on the outstanding PAGA claims and Judge Freeman agreed, noting that in his view the definition of Kim as an aggrieved employee under PAGA was no longer valid since his individual claims had been dismissed with prejudice.
Judge Freeman then invited the parties to appeal his ruling, and thereby “educate us all on what we should do in the future,” he said, according to Court documents.
An appeal was duly pursued, with the appellate panel affirming Judge Freeman’s logic.
A plaintiff having settled is no longer an ‘aggrieved employee’ under PAGA
“We hold that where an employee has brought both individual claims and a PAGA claim in a single lawsuit, and then settles and dismisses the individual employment causes of action with prejudice, the employee is no longer an ‘aggrieved employee’ as that term is defined in the PAGA, and therefore that particular plaintiff no longer maintains standing under PAGA,” the panel said.
“Kim’s lack of PAGA standing is unrelated to the court’s order to arbitrate the individual claims,” the panel said, in its findings dated December 29, 2017. “Moreover, no findings were made by an arbitrator. Had Kim chosen to dismiss his individual claims with prejudice in the absence of any arbitration agreement, we would reach the same conclusion.”
Kim’s wage and hour lawyer suggested his client is pursuing an appeal to the California Supreme Court.
The wage and hour case is Kim v. Reins International California Inc., Case No. B278642, in the Court of Appeal of the State of California, Second Appellate District.
Sacramento, CA: It’s hard to fathom that the number of lawsuits over denied family and medical leave were found to be increasing last year, even though statutes such as the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) have been around for years.
San Jose, CA: The wide-ranging #MeToo movement that has seen scores of women calling out men for harassment, discrimination and other allegations of deplorable behavior has gone beyond media, entertainment and the hallowed Halls of Congress to encompass the judiciary. While there remain no harassment or discrimination lawsuits in the offing, two respected California news sources – including the Los Angeles Times (12/11/17) – nonetheless reveal various examples of behavior towards women, one wouldn’t expect to see in the Halls of Justice.
Was basic respect always lacking, but no one was willing to talk about it?
Another venerable California news outlet, the Mercury News (San Jose, 12/7/17) revealed in early December that a presiding justice of the Court of Appeal in San Jose – a senior judge – resigned October 31 amidst allegations of bigotry, sexual harassment and discrimination against women. The state Judicial Council, which is headed by California Chief Justice Tani Cantil-Sakauye, had been asked by the justices of the 6 District Court of Appeal to investigate complaints against former presiding Justice Conrad Rushing.
An outside law firm is reported to have been engaged by the Judicial Council to look into the allegations against Rushing, and report back. The Mercury News managed to access a copy of what was to have been a confidential document, and in early December reported on the various allegations made against Rushing. Amongst the allegations were those of discrimination against females, including the favoring of male attorneys on the Court staff. Rushing is alleged to have favored male attorneys with assignments of more complex cases, and allowed them freedom to telecommute. Various allegations associated with comments and examples of behavior around female staff were also made.
As noted, the 80-year-old presiding Justice resigned from his position at the end of October and retired from the bench in early December, ahead of the Mercury News report. The
Earlier this month, The Washington Post (12/08/17) detailed allegations of harassment and against women on the part of a judge assigned to the US Court of Appeals for the 9 Circuit. According to the exhaustive report, which was published December 9, Judge Alex Kozinski – a one-time contestant on The Dating Game as a young man – is still sitting. The Los Angeles Times contacted Judge Kozinski for comment, who stated he had no recollection of the incidents and allegations contained in The Washington Post report.
Should we not expect our Justices to be held to a higher standard?
As for Cantil-Sakauye, the former prosecutor, trial court judge and state appellate justice, she suggested to the Los Angeles Times that she may have suffered more serious gender discrimination than being called “honey” and “sugar” but declined to discuss it. Cantil-Sakauye indicated that over the course of her own legal career various #MeToo moments directed her way have included being addressed as “sugar and honey and dear,” and she has been addressed as one of the “girls,” she told the Los Angeles Times.
Anything that may have gone beyond that, she declines to reveal.
“I’ve had a few ‘me-toos’ [sic] in the past, but I’m not telling them, at least not on the record,” said Cantil-Sakauye, after meeting with legal reporters in her chambers. Cantil-Sakauye also indicated the court system employs ethics instruction for judges that includes education about sexual harassment, together with basic instruction that is akin to what children are taught in kindergarten, she said.
‘Keep your hands to yourself, don’t say anything you wouldn’t want said to yourself and behave.”
Any worker in California, of any gender or gender identification who has suffered harassment or discrimination currently or previously, would be wise to speak up and seek retribution against alleged perpetrators – especially in light of the climate currently at hand.
Los Angeles, CA: Allegations of sexual harassment that is consuming the entertainment, media and government industries and given birth to the #metoo movement, has at its root the various allegations against former media mogul Harvey Weinstein. While none of the allegations against Weinstein and others have yet to be proven in court, the mere allegation of wrongdoing is enough to disintegrate a career overnight, and bring once-mighty dynasties to their knees.