equal pay class action

Equal Pay Class Action Lawsuit Against Google

equal pay class actionOn September 14, 2017, three former Google employees filed an equal pay class action lawsuit, just eight months after the U.S. Department of Labor (DOL) filed an administrative lawsuit against the company seeking data showing how much it pays its workers. The workers allege Google violates the California Equal Pay Act and other state laws by starting women at lower salaries than men, keeping them in lower-paying job tracks and promoting them less often.

The plaintiffs seek class certification, all wages due under California Labor Code plus 10 percent interest, restitution and damages. They filed the lawsuit on behalf of themselves and all other similarly situated current and former female Google employees in California. They do not say how large a class they seek to represent, however they note Google has about 21,000 employees in California.

The case is Kelly Ellis et al v. Google Inc., case number CGC-17-561299, in the Superior Court of California for the County of San Francisco.Continue reading

right to compel arbitration employment law

Appellate Court Finds Defendant May Lose Right to Compel Arbitration

California Court of Appeal finds in Sprunk v. Prisma LLC that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel arbitration against the named plaintiff within a reasonable timeframe.


Maria Sprunk is the named plaintiff in a wage and hour class action case against Prisma, LLC , doing business as “Plan B”. Sprunk and the other class members are dancers who performed at Plan B, an exotic dance bar and restaurant located in Los Angeles, California. Sprunk alleges that the dancers were misclassified as independent contractors rather than employees, and that they were consequently denied various benefits that the law requires for employees, such as minimum wages, meal periods, and reimbursement of expenses. Sprunk also alleges that Plan B misappropriated tips in her complaint filed on October 7, 2011. 

Sprunk and all other class members signed contracts containing an arbitration clause. There were two versions of the arbitration clause–one version that did not specifically address class arbitration while the other version (effective July 2011), contained an express waiver. Sprunk signed the first version of the agreement. On November 28, 2011, Plan B sent an arbitration demand. 

Timeline of Subsequent Events

December 30, 2011 – The parties filed a joint initial status report in which Plan B stated that it “wishes to file a motion to compel arbitration at the earliest available opportunity.” Sprunk stated that she intended to oppose the arbitration motion, but agreed that Plan B’s “contemplated motion to compel arbitration is an issue that should be resolved before discovery on the merits, or discovery with respect to class certification issues, is commenced.”

right to compel arbitration employment law

January 25, 2012 – Plan B filed a “Petition to Compel Individual Arbitration and Stay Superior Court Proceedings.” The petition sought arbitration of Sprunk’s individual claims only.

February 15, 2012 – Sprunk filed an opposition to the petition in which she argued, among other things, that the “extremely broad” arbitration clause that Sprunk signed permitted arbitration of class claims. For that reason, Sprunk claimed that the court must decide “whether or not to order arbitration of all individual and class claims,” or alternatively should deny Plan B’s motion on the ground that it sought to limit the arbitration only to individual claims. Sprunk also argued that, to the extent the arbitration agreement is “construed as a class action waiver,” Plan B could not compel arbitration because such a waiver would interfere with the right of employees to engage in collective action under federal law. In support of that argument Sprunk cited a January 3, 2012 decision by the National Labor Relations Board (Horton I). 

September 6, 2012 – Plan B filed a notice withdrawing its motion for arbitration. Plan B filed an answer the same day. The answer included several affirmative defenses based upon the arbitration agreements. Plan B also filed a cross-complaint, which it amended on November 14, 2012.

December 19, 2012 –  Sprunk filed a demurrer and a motion to strike in response to the cross-complaint. Before those motions could be heard, Plan B dismissed the cross-complaint without prejudice. The parties proceeded with discovery. Sprunk served interrogatories and deposed four Plan B witnesses. Plan B served a document request on Sprunk and took her deposition. 

February 20, 2013 – Plan B responded to Sprunk’s interrogatories, again identifying the arbitration agreements as an affirmative defense.

September 19, 2014 – Sprunk filed her class certification motion. In opposing class certification, Plan B
argued that a class action was not superior to other forms of litigation because the class members had signed arbitration agreements. Citing several federal district court decisions, Plan B asserted that it “could not have previously moved for individual arbitration of the claims of the unnamed class members” because the putative class members were not parties to the action prior to the time the court certified the class. In her reply, Sprunk argued that Plan B had waived the right to arbitrate by actively
litigating the case.

April 24, 2015 – The trial court granted class certification in a written order. The court rejected Plan B’s arbitration argument, finding that Plan B’s delay in seeking arbitration—during which it took advantage of “the court’s processes”—meant that Plan B had “waived its right to arbitrate at least as to Plaintiff’s claims.”

August 12, 2015 – Plan B filed two separate motions to compel arbitration directed to the class members who signed the two different versions of the arbitration agreement. In the motions Plan B again argued that it had not waived the right to compel arbitration against the unnamed class members because
they were not parties until a class had been certified.

Decision by Court of Appeal

The appeal centered around whether Plan B’s actions as to Sprunk could determine whether Plan B had waived its right to compel arbitration against the unnamed plaintiffs. Plan B argued the Court should only consider its reasons in delaying compelling arbitration as to the unnamed plaintiffs themselves, claiming that it could not have moved to compel arbitration against these individuals until the class was certified, and therefore its delay in doing so was reasonable.

The Court of Appeal disagreed. The Court ruled it was proper for the trial court to consider Plan B’s actions regarding delaying arbitration as to Sprunk in determining whether Plan B had acted inconsistently with its right to arbitrate against all class members. The Court of Appeal found that substantial evidence supported the trial court’s finding that Plan B had delayed its motions to compel arbitration, both against Sprunk and against the other plaintiffs, not for any legitimate reason, but rather to obtain a strategic advantage: it hoped to give itself another opportunity to win the case by first defeating the class certification in court. 

The Court of Appeal agreed that Plan B’s strategy was inconsistent with a desire to arbitrate, finding that “an attempt to gain a strategic advantage through litigation in court before seeking to compel arbitration is a paradigm of conduct that is inconsistent with the right to arbitrate.” Ultimately, the Court of Appeal affirmed the trial court’s ruling that Plan B had waived its right to compel arbitration against the absent class members due to unreasonable delay.


The decision in Sprunk v. Prisma LLC demonstrates how a defendant may lose its right to compel arbitration if it delays compelling arbitration to obtain a strategic advantage against the class. Defendants should remain cautious in delays such as those in this case, even when there is a legitimate reason, such as waiting for an expected clarification in the law related to the case at hand. 

The experienced employment lawyers at Kingsley & Kingsley will continue to monitor this case among others concerning wage and hour laws and the proper classification of employees. In the meantime, if you have any questions about California’s existing employment laws, don’t hesitate to call us toll free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)




overtime pay safeway

Overtime Pay – California Appellate Court Rules in Safeway Case

Overtime Pay & Exempt vs. Non-Exempt Activities overtime pay safeway

California Court of Appeals Affirms Trial Court’s Ruling in Batze v. Safeway, Inc.–a case about employee exempt vs. non-exempt activities.


Gary Batze, et al., brought a lawsuit against their employer Safeway/Vons for failure to pay overtime wages. The employees (a group of assistant managers) claimed they should have been classified as non-exempt managers entitled to overtime pay. The assistant managers testified that they were required to engage in non-exempt duties such as stocking shelves and building product displays. After weeks of trial testimony, the trial court determined that the employees were engaged for more than 50 percent of their work week in managerial tasks and that they met all the other qualifications to be exempt from overtime. 

The assistant managers appealed the ruling, contending gaps in the evidence should have precluded the trial court from finding exempt status. They argued that they did different jobs at different times and there were differences at stores affecting the time spent on various job duties. They also argued that the trial court must determine exempt status on a workweek-by-workweek basis, without drawing inferences from the employees’ activities during other workweeks to fill in those gaps.Continue reading

expense reimbursement

Ninth Circuit Affirms Class Certification O’Reilly Employee Reimbursement Case

Employee Reimbursementemployee reimbursement

On March 3, 2017, the Ninth Circuit upheld certification for a California class of O’Reilly Auto Enterprises, LLC store managers and assistant managers. The managers allege they weren’t properly reimbursed for business expenses, saying the district court properly considered whether there were enough common factors among the employees to justify certification.  


In December 2015, U.S. District Judge Edward Chen partially granted plaintiff Osmin Melgar’s bid to certify a class of California retail store managers and assistant managers alleging CSK Auto Inc. (now referred to as O’Reilly) failed to reimburse them for using their personal vehicles. Melgar alleged that the company required certain management-level employees to make daily bank deposits but did not provide reimbursement to the employees when they used personal vehicles for work related duties. According to court records, O’Reilly had a standard expense reimbursement policy where employees were required to submit a request in order to receive payment. O’Reilly did not track which employees made bank deposits nor ensure those employees were reimbursed. The plaintiff claimed these practices violated California Labor Code § 2802. 

Class Certification

The plaintiff in this case sought to certify a class of all employees who worked in the pertinent managerial positions from the beginning of the relevant time period until the conclusion of the class action. The court declared this definition too broad for two primary reasons:

  1. First, the court noted that the definition could not include an open-ended class period that continued through the end of the action. Such a definition was vague and especially problematic given that plaintiff sought certification under Rule 23(b)(3), which includes a notice and opt-out requirement. If the class period were open-ended, notice would have to be provided to new class members on an ongoing basis, a situation the court found unworkable. It therefore changed the definition to end the class period at the date of certification
  2. Second, the court found that plaintiff’s class definition was not specifically tied to the alleged wrongful act. Therefore, the court redefined the class to include only those managers who certified that they had used a personal vehicle to make a bank deposit for the defendant and had not been reimbursed. The court found that self-identification could be used to determine class membership and that the defendant’s failure to keep records regarding which employees made bank deposits could not be used to avoid certification.

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California Federal Court Decertifies Class in Wage and Hour Case

Wage and Hour Caseclass action wage and hour laws

In Angeles v. US Airways, Inc., a California federal court concludes that the class issues did not predominate, and it decertified the class under Rule 23(b)(3).  


2012 – Joseph Timbang Angeles and Noe Lastimosa (Plaintiffs) brought a putative class action suit against US Airways, Inc. (Defendant) in the Superior Court of the State of California, County of San Francisco. Plaintiffs alleged wage and hour violations in connection with their previous employment with Defendant as Fleet Service Agents (FSAs). Plaintiffs brought a total of eight claims against Defendant, alleging that Defendant failed to provide proper compensation for all hours worked, failed to provide meal periods and rest breaks, failed to provide accurate wage statements, and failed to reimburse Plaintiffs for work related expenses. Plaintiffs also requested penalties based on these alleged wage and hour violations, claiming they constitute unlawful business practices.

US Airways, Inc. argued that it is exempt from California wage and hour laws due to its collective bargaining agreement (CBA) with Plaintiffs, that Plaintiffs’ claims are preempted by the Railway Labor Act (RLA), the Airline Deregulation Act (ADA), or both, and that Plaintiffs’ inaccurate wage statements and unlawful business practices claims are dependent on deficient claims. Continue reading

U.S. Supreme Court to Decide Appellate Court Split Class Action Waiver

U.S. Supreme Court Grants Certiorari in Three Class Arbitration Waiver Cases class action waiver

On January 13, 2017, the United States Supreme Court consolidated and granted petitions for writ of certiorari in Epic Systems Corp. v. Lewis, Ernst & Young v. Morris and NLRB v. Murphy Oil USA Inc. The nation’s highest court will hear argument on whether arbitration provisions in employment agreements which waive class actions are a violation of the National Labor Relations Act (NLRA). Stated differently, the question is whether employers can utilize arbitration agreements within employment contracts that require their employees to resolve disputes individually instead of collectively via a class action.

The Court’s decision in this case aims to resolve a significant split among federal appellate courts. The Second, Fifth and Eighth circuit courts have held that the Federal Arbitration Act (FAA) requires the enforcement of class action waivers in employment arbitration agreements. The Seventh and the Ninth circuits have reached the opposite conclusion, holding that such waivers are unenforceable.

Seventh Circuit

In Epic Systems Corp. v. Lewis (USSC 16-285), the Seventh Circuit held a provision of an employment agreement mandating that wage-and-hour claims could be brought only through individual arbitration and that employees waived collective action was prohibited under Section 7 of the NLRA. Epic Systems, a Wisconsin-based health-care software company, required certain groups of employees to agree to bring any wage-and-hour claims against the company only through individual arbitration. The agreement did not permit collective arbitration or collective action in any other forum.  Continue reading