With the introduction of AB 588 and its intent to close so-called “loopholes”, it is important for employees and employers to realize the benefits of PAGA and how it prevents employers from committing labor code violations related to wages, rest periods, health and safety, and retaliation.
What is PAGA?
California rolled out a unique approach to enforcing the State’s Labor Code when it enacted the Private Attorney General Act of 2004 (PAGA) codified in Cal. Lab. Code § 2698, et seq. PAGA allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency (LWDA) provided the formal notice and waiting procedures of the law are followed.
More specifically, PAGA allows current and former employees to file lawsuits to recover civil penalties that would otherwise only be recoverable by the government. It is used for wage-and-hour and safety violations, and the lawsuits are filed on behalf of the named employee and other “aggrieved” current and former employees.
Reyes v. Dollar Tree Stores, Inc.
(Filed April 1, 2015, No. 15-55176) in the United States Court of Appeals, Ninth Circuit
According to Court records, Defendant Dollar Tree Stores, Inc. removed this case to federal court in 2012, invoking jurisdiction under the Class Action Fairness Act of 2005 (CAFA). Plaintiff Richard Reyes moved to remand, representing that the amended complaint defined the proposed class narrowly and that the CAFA $5,000,000 amount-in-controversy requirement was therefore unsatisfied. The district court agreed and remanded.
In May 2014, a California superior court certified a broader class than the one described by Reyes during the first removal. It is uncontested that the amount in controversy for the class actually certified exceeds $5,000,000. Dollar Tree again removed after the superior court entered the class certification order, but the district court found removal untimely because the order was based on the same complaint that was the subject of the first removal.
Cheerleaders to Gain Protections Under AB 202
Introduced on January 29, 2015 by California Assemblywoman Lorena Gonzalez (D-San Diego), AB 202 would require that a California-based professional sports team that utilizes the services of cheerleaders, as defined, to provide those cheerleaders with specified rights and benefits afforded to its employees under existing employment laws, regardless of the terms and conditions under which the cheerleader performs.
Existing law prescribes comprehensive requirements relating to minimum wages, overtime compensation, and standards for working conditions for the protection of employees applicable to an employment relationship.
Allegations of Rest Break Violations
Plaintiffs Jennifer Augustus, Emmanuel Davis, and Delores Hall, formerly security guards employed by defendant ABM Security Services, Inc. (ABM), allege on behalf of themselves and a class of similarly situated individuals that ABM failed to provide rest periods required by California law. Specifically, the plaintiffs cited ABM’s failure to relieve security guards of all duties during rest breaks, instead requiring its guards to remain on call during breaks.
On January 29, 2015, the California Supreme Court ruled that an employer did not violate the California Family Rights Act (CFRA) when it terminated an employee who was out on medical leave because the worker engaged in conduct in violation of the employer’s policy.
Events Leading up to Termination of Employee while on CFRA Leave
Avery Richey was hired in 2004 by Power Toyota Cerritos. Around the time of his hire, Richey received an employment manual stating that outside work while on approved CFRA leave was prohibited. A general understanding existed at Power Toyota that outside employment of any kind, including self-employment while on approved leave, was against company policy and that other employees had been fired for violating the rule.
Class Action Lawsuits Allege Mislassification of Employees
Uber and Lyft will be facing class action lawsuits due to two separate lawsuits filed in San Francisco federal court. The suits, originally filed in 2013, are seeking class-action status and are now making their way through the courts. The reason for the lawsuits–some Uber and Lyft drivers allege they have been misclassified as independent contractors when they should be classified as employees, and therefore eligible for overtime and minimum wage.
Furthermore, beyond allegations they should have full employee status, the plaintiffs are seeking reimbursement for expenses including gasoline and car maintenance costs, which they would normally receive if they had employee standing in California. Since drivers for both companies are currently classified as independent contractors, they cover these costs themselves.
Walmart Hit with California Labor Class Action Lawsuit
A California pharmacist has filed a class action lawsuit against Walmart, accusing the retail giant of missed rest periods and unpaid overtime, violations of California Labor Law and the Fair Labor Standards Act (FLSA). The California labor code lawsuit was originally filed in Orange County Superior Court in December of last year and was removed to federal court on February 6.
The named plaintiff, Afrous Nikmanesh, worked as a Walmart pharmacist from November 2003 to September 2014. In addition to the allegation of missed rest periods, Nikmanesh claims that the retailer did not pay him and other pharmacists in the class for time studying for and completing APhA Immunization Training Programs. The lawsuit has been filed on behalf of current and former pharmacists employed by Walmart in the U.S., as plaintiffs assert that the Immunization training was directly related to the responsibilities of a pharmacist.
Labor Violations at California Winery
According to a Februrary 24, 2015 release by the U.S. Department of Labor (DOL), an Orlando-based labor contractor will pay $163,227 for violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the Fair Labor Standards Act (FLSA). The contractor, Manuel Quezada, provides labor crews to Roederer Estate, a 33-year old winery located about 125 miles north of San Francisco. All told, 60 migrant workers will receive $99,953 in back wages under the MSPA, and $63,274 in wages and damages under the FLSA.
MSPA and FLSA
According to DOL reports, Quezada has provided labor crews to Roederer Estate for the last ten years for grape harvesting, pruning and nut harvesting around the northern California area.
Quezada was cited for violations that occurred at
In Jazmina Gerard v. Orange Coast Memorial Medical Center, three health care workers sued their hospital employer for alleged Labor Code violations and related claims. On appeal, their primary complaint was a hospital policy that illegally let health care employees waive their second meal periods on shifts longer than 12 hours. Statute requires two meal periods for shifts longer than 12 hours but an order of the Industrial Welfare Commission (IWC) authorizes employees in the health care industry to waive one of those two required meal periods on shifts longer than 8 hours. The principal issue before the California Court of Appeal concerned the validity of the IWC order.
Notice of Proposed Rulemaking regarding Sex Discrimination by Federal Contractors
Kicking off a year expected to be a year filled with regulatory changes, the United States Department of Labor (USDOL) issued its proposed new regulations regarding sex discrimination by federal contractors. On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) announced a Notice of Proposed Rulemaking updating the rules that govern how federal contractors and subcontractors prohibit sex discrimination. The proposal would rescind outdated guidance, align requirements with prior amendments to Title VII, established legal precedent, and better address the realities of today’s workplaces. OFCCP’s proposed rule deals with a variety of barriers to equal opportunity and fair pay, including pay discrimination, sexual harassment, hostile work environments, a lack of workplace accommodations for pregnant women as well as gender identity and family caregiving discrimination.