I did some analysis of the wage and hour class actions filed in California in the month of March 2008. Basically, I looked at federal and state court filing summaries throughout California. I don't promise that this information is airtight or 100% accurate. Rather, I am trying to show the big picture. So here it is.
Number of Wage & Hour Class Actions Filed Or Removed In March 2008 - 101
Industries Primarily Targeted
Food (e.g., coffee shops, franchises, wineries) (14 wage/hour actions)
Financial Services (e.g., Prudential, JP Morgan, Countrywide) (9 wage/hour actions)
Entertainment (e.g., Casinos, Clubs, Theaters) - 6 wage/hour actions)
Busiest Plaintiffs' counsel -
George Kingsley of Kingsley & Kingsley. In March 2008, he filed four wage and hour class cases and had one more removed. The Defendants is his cases include Golden State Utility Company, Zumiez, Sbarro, Schering Corp., and Shore House Cafe.
Top Five Busiest Courts for wage and hour class actions (March 2008) -
LA Superior Court (39 wage/hour class cases);
Federal District Court, Central District (22 wage/hour class cases);
San Diego Superior (11 wage/hour class cases);
Alameda Superior (7 wage/hour class cases);
Orange County Superior (5 wage/hour class cases).
Most interesting March 2008 case -
Bissett v. Sutter Health, et. al (and I mean et al. - lots and lots of hospitals - throughout California).
The case apparently alleges that nurses have not been paid overtime or given meal breaks because of "intentional understaffing." I would guess that one purpose of this case is to change patient/nurse staffing ratios. I would also guess (and only guess) that the California Nurses Association is somehow involved.
Plaintiffs counsel is Robert Cantore of Gilbert Sackman. The firm's website (which prominently displays their representation of unions) is here.
Monday, April 28, 2008
Wednesday, April 9, 2008
What You Need To Know Today (About Leaves)
On April 7, the California Supreme Court issued its opinion in Lonicki v. Sutter Health Central. It was a split decision.
The Bottom Line. Under CFRA, an employer can contest an employee's doctor's claim that the employee has a serious health condition even if the employer does not seek a third opinion from a neutral doctor before doing so.
Also, if an employee takes another job while purportedly unable to work for the employer because of his or her "serious health condition," that's probably really good evidence for the employer if there's ever a trial. Don't think it's going to get the case dismissed on summary judgment, though.
Here is the thumbnail.
Facts. Lonicki gets a job with Sutter Health as a technician in the sterile processing unit. About 8 years later, the unit becomes a trauma center, and Lonicki gets a new boss who she really can't stand.
Lonicki gets doctors notes stating that she has the serious health condition of stress and depression and can't work. The employer's doctor examines her and renders a second opinion stating that's balony. Sutter Health leaves it at that and insists she come back to work. Sutter Health does not ask for a binding third opinion by a neutral doctor, as it could have under Government Code 12945.2(k)(3)(C) and (D).
In the meantime, Lonicki is working part-time at another hospital, basically doing the same job (though she claims it is slower and less stressful there). So, if Sutter Health were to allow CFRA leave, it would be paying Lonicki's benefits (pursuant to Government Code 12945.2(f)) while she spends her time working for someone else. Apparently, Sutter wasn't too in to that, and terminated her employment.
The Resolution.
The majority holds that an employer can contest in litgation a doctor's determination that an employee has a serious health condition even if it does not ask for a final and binding third opinion from a neutral doctor. This is because the statute states that an employer "may" get a third opinion, not "must" get a third opinion. More importantly, Lonicki will probably be read as holding that the employer does not even have to get a second opinion in order to contest the employee's doctor's determination. The majority cites a federal case in support of its reasoning, which states:
The majority also holds that if an employee cannot perform her specific job due to a serious health condition, then CFRA leave is appropriate, even if she could perform a comparable job someplace else. Of course, if the employee is performing the same job someplace else, that certain goes to the question of whether she really has a serious health condition, but this is a question of fact. An employee has a "serious health condition" under CFRA if she cannot perform the "essential functions" of her specific job at her specific employer, as opposed to the essential functions of the job in general. Finally, the majority concludes that, if this is a stupid law, people should blame the legistature. They're just doing their job.
The Main Dissent. The primary dissent (by Justice Chin) argues that the majority is stupidly interpreting the law with respect to allowing the employee to perform an identical job for one employer while taking CFRA leave from the other. He reasons:
Justice Chin's dissent is not the law, of course. It's just for the record.
The Bottom Line. Under CFRA, an employer can contest an employee's doctor's claim that the employee has a serious health condition even if the employer does not seek a third opinion from a neutral doctor before doing so.
Also, if an employee takes another job while purportedly unable to work for the employer because of his or her "serious health condition," that's probably really good evidence for the employer if there's ever a trial. Don't think it's going to get the case dismissed on summary judgment, though.
Here is the thumbnail.
Facts. Lonicki gets a job with Sutter Health as a technician in the sterile processing unit. About 8 years later, the unit becomes a trauma center, and Lonicki gets a new boss who she really can't stand.
Lonicki gets doctors notes stating that she has the serious health condition of stress and depression and can't work. The employer's doctor examines her and renders a second opinion stating that's balony. Sutter Health leaves it at that and insists she come back to work. Sutter Health does not ask for a binding third opinion by a neutral doctor, as it could have under Government Code 12945.2(k)(3)(C) and (D).
In the meantime, Lonicki is working part-time at another hospital, basically doing the same job (though she claims it is slower and less stressful there). So, if Sutter Health were to allow CFRA leave, it would be paying Lonicki's benefits (pursuant to Government Code 12945.2(f)) while she spends her time working for someone else. Apparently, Sutter wasn't too in to that, and terminated her employment.
The Resolution.
The majority holds that an employer can contest in litgation a doctor's determination that an employee has a serious health condition even if it does not ask for a final and binding third opinion from a neutral doctor. This is because the statute states that an employer "may" get a third opinion, not "must" get a third opinion. More importantly, Lonicki will probably be read as holding that the employer does not even have to get a second opinion in order to contest the employee's doctor's determination. The majority cites a federal case in support of its reasoning, which states:
"The FMLA provides only that an employer 'may' seek a second, or third, opinion if it questions the validity of an employee's proffered medical certification. Because the term 'may' is permissive . . . an employer who questions the validity of a certification has the option of seeking a second or third opinion without being required to do so."
The majority also holds that if an employee cannot perform her specific job due to a serious health condition, then CFRA leave is appropriate, even if she could perform a comparable job someplace else. Of course, if the employee is performing the same job someplace else, that certain goes to the question of whether she really has a serious health condition, but this is a question of fact. An employee has a "serious health condition" under CFRA if she cannot perform the "essential functions" of her specific job at her specific employer, as opposed to the essential functions of the job in general. Finally, the majority concludes that, if this is a stupid law, people should blame the legistature. They're just doing their job.
The Main Dissent. The primary dissent (by Justice Chin) argues that the majority is stupidly interpreting the law with respect to allowing the employee to perform an identical job for one employer while taking CFRA leave from the other. He reasons:
The CFRA does not contemplate that an employee with an alleged 'serious health condition' would remain employed and receive health insurance benefits under a group health plan from one employer while on medical leave, at the same time that the employee is apparently working in a comparable position for a different employer. The lead opinion's belief that the CFRA did not intend to refer to the general functions of the job is simply unpersuasive in light of the legislative intent and common understanding of that term.
Justice Chin's dissent is not the law, of course. It's just for the record.
Wednesday, April 2, 2008
Labor Relations (The Illegal Kind)
While mob influences are probably not what they used to be in organized labor, there is apparently still plenty of corruption out there - especially in some construction trades, and especially in New Jersey. Recently, a business agent for an Operating Engineer's Local and the president of an erector contractor pled guilty to a bribery conspiracy. The case is United States v. Wask.
Why does this kind of bribery happen? Because, for an employer, paying a few thousand (or many thousand) bucks to a labor official is cheaper than a strike. It's also cheaper than complying with the sometimes difficult work rules, high wage rates, and expensive benefit costs set up in collective bargaining agreements. I mean, another recent case involving the same OE Local alleged that an employer paid a union official $750 just to avoid having a union guy man a backhoe.
The reason the government must be constantly diligent in prosecuting these cases is because it is almost always in the employer's economic self-interest to avoid union troubles and union mandates. And, with large enough suitcases or envelopes of money, it is in the individual union official's economic self-interest to do the employer a favor or two in this regard.
So who's ox gets gored? The working man's. The people with the least individual influence, who are paying the union for their services (through dues), and whose muscle (or refusal to use that muscle in the case of a strike), gives the union official so much power. They're being played for patsies, and often they don't know or have no choice. The government needs to keep this from happening. Aggressively prosecuting this kind of corruption is one way to do it.
Why does this kind of bribery happen? Because, for an employer, paying a few thousand (or many thousand) bucks to a labor official is cheaper than a strike. It's also cheaper than complying with the sometimes difficult work rules, high wage rates, and expensive benefit costs set up in collective bargaining agreements. I mean, another recent case involving the same OE Local alleged that an employer paid a union official $750 just to avoid having a union guy man a backhoe.
The reason the government must be constantly diligent in prosecuting these cases is because it is almost always in the employer's economic self-interest to avoid union troubles and union mandates. And, with large enough suitcases or envelopes of money, it is in the individual union official's economic self-interest to do the employer a favor or two in this regard.
So who's ox gets gored? The working man's. The people with the least individual influence, who are paying the union for their services (through dues), and whose muscle (or refusal to use that muscle in the case of a strike), gives the union official so much power. They're being played for patsies, and often they don't know or have no choice. The government needs to keep this from happening. Aggressively prosecuting this kind of corruption is one way to do it.
How Employment Lawyers Think
How many uh oh words are they? Could I make a list, maybe, and provide it to clients?
Monday, March 31, 2008
Department of Fat Chance
Three bills are currently pending in the California legislature to curb missed break class actions. One basically shortens the statute of limitations to one year from four (SB 1192). Another states that an employer may "provide" an employee with a break merely by, well, providing one: Meaning make one available without interference. (SB 1539) (Note, this may be all the law currently requires). A third states that an employer may comply with the meal break requirement by ensuring the employee is provided with a break anytime within the first six hours. (AB 1034.)
I am confident that these bills will sail through California's democratic legislature.
I am confident that these bills will sail through California's democratic legislature.
Sunday, March 30, 2008
Payroll Problems (All Of 2007)
Want to know what happened last year in wage and hour law? This is a good place to look.
What You Need To Know Today (About Illegal Immigration)
There have been a number of cases filed over the years alleging that employers who knowingly employ illegal immigrants commit RICO violations and depress the wages of legal workers. The validity of this legal theory is still a bit up in the air.
However, in a most recent case testing this theory, Hager v. ABX Air, a district court in Ohio held that, while a corporation could not be held liable as an illegal "enterprise" under RICO, individual executives could be held liable for conducting the affairs of an enterprise (i.e., the corporation) through a pattern of racketeering activity: The racketeering in this case being the knowing employment of 10 or more illegal immigrants.
Obvious note to executives: Do not knowingly employ illegal immigrants - especially on a wide scale.
However, in a most recent case testing this theory, Hager v. ABX Air, a district court in Ohio held that, while a corporation could not be held liable as an illegal "enterprise" under RICO, individual executives could be held liable for conducting the affairs of an enterprise (i.e., the corporation) through a pattern of racketeering activity: The racketeering in this case being the knowing employment of 10 or more illegal immigrants.
Obvious note to executives: Do not knowingly employ illegal immigrants - especially on a wide scale.
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