Monday, March 23, 2020

In Kim, California Supreme Court Protects Employees' Rights to Bring PAGA Claims

Earlier this month, the Supreme Court of California ruled that an employee does not lose standing to pursue a claim under the Private Attorneys General Act of 2004, California Labor Code § 2698, et seq. (PAGA) where that employee settles and dismisses his or her individual claims. In Kim v. Reins International California, Inc. (full opinion here), the Court rejected the employer’s injury-focused argument that an employee who settles his or her individual claims is no longer a “person aggrieved” for purposes of PAGA. The result is a positive judicial step in the right direction in ensuring that PAGA will continue to be a viable tool that may be used to protect the public interest in enforcement of the State’s labor laws.

The Plaintiff in Kim brought a putative class action claiming that he had been misclassified as exempt from overtime laws. The operative complaint alleged claims for failure to pay wages and overtime (Cal. Labor Code § 1194), failure to provide meal and rest periods (Cal. Labor Code § 226.7), failure to provide accurate time statements (Cal. Labor Code § 226(a)), waiting time penalties (Cal. Labor Code § 203), and unfair competition (Cal. Bus. & Prof. Code § 17200). It also sought civil penalties under PAGA. The employer compelled Plaintiff to arbitration and the PAGA litigation - which could not be compelled to arbitration, under Iskanian v. CLS Transportation Los Angeles (as explained here) - was stayed pending arbitration. While the PAGA action was stayed, the employer made a statutory offer to settle Plaintiff’s individual claims pursuant to Cal. Code Civ. Proc. § 998. Despite the settlement encompassing only Kim's "individual claims" (as discussed in footnote 7 of the Supreme Court opinion), the company sought and the court granted summary adjudication on the PAGA claim, concluding that Plaintiff lacked standing because his rights had been completely redressed by the settlement of his individual claims. The Appellate Court affirmed, leaving the California Supreme Court to weigh in on standing in PAGA cases.



Looking to the statutory language, the Supreme Court concluded that the settlement of individual claims does not strip an individual employee of standing to bring a PAGA claim. First, the plain language of PAGA only requires that a plaintiff be an aggrieved employee – someone “who was employed by the alleged violator” and “against whom one or more of the alleged violations was committed.” In rejecting the employer’s argument that a continuing injury was required to meet this definition, the Court explained that an injury-centric focus was misplaced as PAGA standing is defined in terms of an employer’s violations rather than an employee’s injuries. PAGA does not require an employee to claim any economic injury resulted from a labor violation, only that the labor violation itself occurred. Whereas the employer’s reading would read in requirements not found in the text itself, PAGA’s language only requires that an employee have suffered “one or more of the alleged violations” committed, which permits an employee to serve as a PAGA representative for violations that the employee did not personally experience, as the Court of Appeal in Huff v. Securitas had explained (see our amicus brief here for discussion of Huff).

The Court went on to discuss that injury is not a requirement for civil penalties; damages and civil penalties serve different purposes. In the case of PAGA, the statutory purpose is to remediate present violations and deter future violations as a matter of public interest, not to redress employees injuries. The Court also distinguished PAGA actions from class actions, emphasizing that whereas in a class action the representative only possesses his or her own claim for relief, a PAGA claim is brought on behalf of all affected employees as the state’s designated proxy, as in a qui tam action.

Turning to broader policy considerations, the Court explained that a narrower interpretation of who was an aggrieved employee for purposes of PAGA would have the effect of eliminating employees that settled their claims from the group of individuals eligible to receive a share of the penalties, which in turn would mitigate or potentially completely eliminate the amount of penalties that the state could collect. The Court also reasoned that, in light of plaintiffs' recognized ability to bring stand-alone PAGA claims, standing for a PAGA claim cannot be dependent on the maintenance of an individual claim as PAGA-only cases are not cases in which individual relief has been sought. Further, as there are numerous Labor Code violations that do not have a private right of action (for example, Cal. Labor Code § 558, which we previously discussed here) but can be vindicated in a PAGA action, it would be inconsistent to require a plaintiff to have an unredressed injury to have standing. Finally, the Court rejected as unsupported the employer’s arguments that the legislative history supported its argument or that Plaintiff should be precluded from raising his claim.

Notably, the Court also described Reins's conduct as "troubling." Specifically, Reins explicitly carved out Plaintiff's PAGA claim and made its settlement offer pursuant to California Code of Civil Procedure § 998, which permits defendants to recover defense costs if a jury awards a smaller award to the plaintiff than the defendant previously offered in settlement. The Court opined that "if Reins's prior conduct did not amount to an estoppel, this turnabout was hardly fair play," and observed that reaching a contrary holding would present plaintiffs with a difficult choice: "either reject the offer and risk incurring substantial liability for costs or accept the offer and lose the ability to pursue the PAGA claim."

Ultimately, the Court’s ruling in Kim is an important step in protecting employees’ rights by upholding a system designed to ensure that California’s Labor laws are properly enforced. PAGA remains an important and efficient tool in curbing an employers’ widespread misconduct. If you are seeking to assert wage claims representing your co-workers, contact Bryan Schwartz Law.

Rights and Resources for Workers in the Era of COVID-19




Bryan Schwartz Law wants workers to know their rights and what resources are available to them during the coronavirus pandemic.

  •  Legal Aid at Work has also prepared an FAQ on coronavirus and the workplace in English, Spanish, and Chinese.
  • Legal Aid at Work is conducting clinics virtually for workers throughout the state.
  • Bet Tzedek’s Employment Rights Team will be holding weekly virtual clinics each Wednesday from 5-7pm PST. Those interested in making an appointment should call Bet Tzedek’s main line at 323-939-0506 extension 415.
  • The Center for Workers' Rights is operating a Coronavirus Job Protection Helpline to help answer questions about workplace rights. Call 916-905-1625 from 9 am - 5:30 pm M-F. If you are in the Sacramento area, you can reach the line by dialing 211.
  •  If you are undocumented:

o    Here is a list of California relief funds in English and Spanish for those who have lost their jobs due to coronavirus.
o    The California Immigrant Youth Justice Alliance has put together resources in various languages, including English, Spanish, and Portuguese.

This is not a comprehensive list, but we hope that it can help workers feel more protected during this difficult time. We encourage folks to follow the organizations mentioned above on social media for real-time information.

We are lucky in California to have so many organizations that are dedicated to protecting workers’ rights and strong laws protecting workers. We’re in this together. If you feel like your rights are being violated in the workplace, contact Bryan Schwartz Law today.

Wednesday, March 11, 2020

Gender Pay Gap: Prior Pay is No Excuse

It is generally illegal for employers to pay employees differently due to their sex under the federal Equal Pay Act. But does this ban include pay differentials based on prior salary? According to a welcome decision by the Ninth Circuit Court of Appeals, the answer is yes. The court’s ruling is especially notable in that it recognizes the systemic wage disparities that have historically handicapped women in the workforce.

The Ninth Circuit handed down Rizo v. Yovino for a second time on February 27, 2020—the Supreme Court vacated the previous decision because its author died eleven days before the decision was issued. The case was brought by math consultant Aileen Rizo, who was hired by the Fresno County Office of Education in 2009.  Based on Ms. Rizo’s prior salary, she was placed at Step 1, Level 1, for a compensation of $62,133 for 196 days of work, plus $600 because she has a master’s degree. Fresno County calculated this pay according to its policy that applied uniformly to men and women: increasing an employee’s prior wages by 5% and placing the employee on the corresponding pay scale.

Three years later, Ms. Rizo realized she was the only female math consultant in Fresno County, and she earned the lowest pay. She also discovered that a newly-hired male colleague was placed on Level 1, Step 9, a much higher salary than Ms. Rizo earned even after three years working for Fresno County, though Ms. Rizo possessed greater education and experience.

She sued. Fresno County defended that its reliance on past pay was a neutral basis that complied with the Equal Pay Act. The decision was rejected by a federal district court, and the 9th Circuit en banc, in a decision written by Judge Reinhardt. After the Supreme Court vacated the en banc decision because Judge Reinhardt passed away before the 2018 opinion was published, the reconstituted 9th Circuit en banc—with another judge from the circuit replacing Judge Reinhardt—came to the same conclusion, ruling, “Allowing employers to escape liability [under the Equal Pay Act] by relying on employees’ prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate.”

The decision considered the fourth statutory exception to the Equal Pay Act, which allows employers to differentiate employees’ pay using “a differential based on any other factor other than sex.” The Ninth Circuit determined only that job-related factors—such as shift differentials, time of day worked, hours of work, work duties, or experience—satisfy this exception. Rejecting Kouba v. Allstate Insurance Company (9th Cir. 1982) 691 F.2d 873, the court held that reliance on prior pay is by itself insufficient for an employer to show that sex provided no part of the wage difference:

We do not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. But the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex.
The Ninth Circuit recognized pervasive gender disparities in pay, especially as it affects minority communities, noting that “[t]hese differences are even more pronounced among women of color…. Women of all races and ethnicities earn less than men of the same group…and economic literature suggests that even after accounting for certain observable characteristics—such as education and experience—an unexplained disparity largely persists.” This observation is especially apt in the digital age, which threatens to enshrine historical bias against women in algorithms.

In another notable aspect of the decision, the Ninth Circuit reiterated that the plaintiff in an Equal Pay Act case need not demonstrate discriminatory intent. Unlike in Title VII claims, a showing of pretext is not required if the employer attempts to establish a defense.

The majority decision also rejected the argument that employers should be able to set employee salaries based on prior pay in conjunction with other valid bases, such as experience and skills, because the valid business reasons alone would be sufficient for an employer to defend against an Equal Pay Act claim. The court conceded that an employer may use prior pay as a basis for negotiating job offers or setting starting salaries, but employers would nonetheless have to defend against Equal Pay Act claims without relying on prior pay. California’s pay privacy law does not allow employers to inquire about past pay. Cal. Lab. Code § 432.3.

If you believe you are being paid less because of your sex, contact Bryan Schwartz Law.




Tuesday, February 18, 2020

A Victory for Whistleblowers in the Workplace


California’s workplace protections for whistleblowers who expose public corruption got a boost from the Court of Appeals this month in Hoeper v. City & County of San Francisco. The court upheld a $5 million jury verdict for whistleblower retaliation for former San Francisco deputy city attorney Joanne Hoeper, broken down into $2.4 million for attorney’s fees and $2.6 million in damages for lost earnings and emotional distress.

Back in 2011, Ms. Hoeper began to investigate what she believed to be a kickback scheme happening within the City Attorney’s office. Ms. Hoeper alleged that the City of San Francisco was awarding millions of dollars in contracts to private contractors to fix sewers based on fraudulent claims. When her investigation pointed to the involvement of attorneys within the City Attorney’s office, she was retaliated against: demoted, transferred, and fired. A unanimous jury in 2017 ruled in her favor regarding whistleblower retaliation, and now a California court of appeals has upheld the jury’s verdict. It’s an important reminder that whistleblower retaliation is illegal – no matter if your employer is a private or public entity.

            Bryan Schwartz Law has written about whistleblower retaliation before. If you have blown the whistle at work and then were retaliated against, contact Bryan Schwartz Law today.

Blowing the Whistle—When Can You Go to Court about Retaliation?

Whistleblowers—employees who sound the alarm on their employer’s or coworkers’ illegal activity—are vital to protect the public from corporate and government wrongdoing. But there are understandable reasons that employees choose not to speak out, including fear of retaliation. Whistleblower protection laws are designed to prohibit retaliation and encourage whistleblowing.

California’s whistleblower protection laws are some of the nation’s most expansive. A central component of California’s whistleblower protection scheme is Section 1102.5 of the California Labor Code, which, among other protections, prevents employers from retaliating against employees who make complain internally, make whistleblowing reports to government agencies, or participate in government investigations. Section 1102.5 aims to encourage employees to speak out against wrongdoing. The 2003 amendments also codified the California appellate court decision in Gardenhire v. City of Los Angeles Housing Authority (2000) 85 Cal.App.4th 236, to clarify that a government employee’s report to the agency where they work constitutes whistleblowing activity.

But when do government whistleblowers get to enforce their rights in court? Sometimes, government employees who are subject to retaliatory acts—such as termination, demotion, official discipline, etc.—file administrative complaints. Such a complaint can involve a hearing, presentation of evidence, and legal representation, among other formal aspects. Sometimes, the administrative process will eliminate an individual’s right to proceed in court altogether. If an administrative decision lacks the “requisite judicial character” to constitute a full resolution of the legal issue, a court may step in. Sometimes an administrative decision will not be considered a final decision if that would go against the legislature’s intent, given that the legislature created the administrative body in the first place.   

The Ninth Circuit Court of Appeals recently considered the legislative intent exception as it applies to public sector employees alleging whistleblower retaliation in Bahra v. County of San Bernardino. The plaintiff, Eric Bahra, was employed by San Bernardino County’s Department of Children and Family Services, which investigates referrals regarding child abuse, among other duties. While investigating allegations of abuse against a foster parent, Bahra discovered that the foster parent had a prior history of child abuse and neglect, but this history was not reflected in the agency’s database due to errors in previous entries.

He told his manager. Later that day, he witnessed his manager and another agency employee looking through the files on his desk. Next, the agency initiated an investigation into Bahra, assigned him to desk duty, then placed him on administrative leave. Eventually, the agency provided Bahra with a notice of proposed dismissal. He contested it in an initial administrative hearing in 2013, but the hearing officer ruled for the County and the agency dismissed Bahra. He appealed and requested a full evidentiary hearing at the County’s Civil Service Commission. After a 14-day hearing and testimony from 27 witnesses in 2014, the Commission’s hearing officer, in 2015, rejected Bahra’s retaliation claims, and the Commission adopted the hearing officer’s report. Although he was informed that he could seek a writ of mandamus pursuant to California Code of Civil Procedure 1094.5, he elected not to do so. Instead, he filed a civil suit in the United States District Court, bringing claims under Section 1102.5 and 42 U.S.C. § 1983. The District Court dismissed the complaint in 2018 on grounds of issue preclusion and claim preclusion, meaning, that because the matter had been fully adjudicated administratively, it could not be brought in court.

On December 30, 2019, the Ninth Circuit reversed as to Bahra’s Section 1102.5 claim. The court analyzed two state court decisions: Taswell v. Regents of University of California 23 Cal.App.5th 343 (2018), in which the California Court of Appeals held that administrative findings by a state agency do not preclude retaliation claims brought under Section 1102.5; and, Murray v. Alaska Airlines 50 Cal.4th 860 (2010), where the California Supreme Court held that a federal employee’s retaliation claim was precluded. The agency argued that Murray indicated that the California Supreme Court would disagree with Taswell.

The Ninth Circuit rejected this argument. First, the court stated that Murray was highly specific to the factual and legal circumstances of the case. It did not purport to apply to all administrative decisions, especially in light of federalism issues at play in Murray but absent in Bahra. Second, Murray analyzed the first exception—the “sufficiently judicial character” exception—and not the legislative intent exception. Third, the Ninth circuit looked to California Supreme Court precedent more recent than Murray, including decisions on which Taswell relied, which suggested that the California Supreme Court would agree with Taswell. Accordingly, the Ninth Circuit ruled that the Department of Child and Family Services decision did not preclude Bahra from bringing his Section 1102.5 claim to court.

But it was not a total victory for Bahra; the Ninth Circuit ruled against him with respect to his Section 1983 claims. Bahra had not argued that giving preclusive effect to the Section 1983 decision would go against legislative intent, so the Ninth Circuit did not address the issue. Instead, the court looked exclusively to the judicial character of the proceeding and, finding it sufficient, held that the Section 1983 claim was precluded, affirming the lower court.
If you have suffered workplace retaliation for whistleblowing activity, contact Bryan Schwartz Law.

Monday, February 10, 2020

Discriminated Against? Both the Staffing Agency and Your Assigned Workplace Are Likely on the Hook


Are you employed through a staffing agency? Do you have an employment discrimination case against the company where the staffing agency placed you? Companies love to dodge responsibility by saying that workers hired through staffing agencies aren’t employees. But they’re likely wrong.

In the recently issued case of Jimenez v. U.S. Cont'l Mktg., Inc. (2019) 41 Cal.App.5th 189, 197-98, the California Court of Appeals reminded companies that the “general principle—that an individual may be held to have more than one employer in the temporary-staffing context—has ‘long been recognized for the purposes of applying state and federal antidiscrimination laws.’” (quoting Bradley v. Dep’t of Corr. & Rehab. (2008) 158 Cal. App. 4th 1612, 1626).

Jimenez brought several claims under California’s Fair Employment and Housing Act (FEHA, which prohibits discrimination, harassment, and retaliation in the workplace) against both a staffing agency (Ameritemps) and her contracting employer (USCM). To determine whether the contracting employer was indeed Jimenez’s employer, the court held that “factors under the contractual control of the temporary-staffing agency (such as hiring, payment, benefits, and timesheets being handled by a temporary-staffing agency) are not given any weight in determining the employment relationship with respect to the contracting employer.” Jimenez, 41 Cal.App. at 193. In other words, the factors used to determine whether a staffing agency is someone’s employer are different from the factors used to determine whether a contracting employer is someone’s employer. Just because a staffing company oversees hiring, payment, benefits, and time-tracking does not mean the contracting employer is off the hook.

Why are the factors different? The factors that make a staffing agency someone’s employer are “outside the scope of the terms and conditions of the temporary employee’s employment with the contracting employer.” Jimenez, 41 Cal.App. at 193. Liability for harassment or discrimination under FEHA is “‘predicated” on allegations “‘involving the terms, conditions, or privileges of employment under the control of the employer[.]’” Id. (quoting Bradley v. Department of Corrections & Rehab. (2008) 158 Cal.App.4th 1612, 1629).

What matters when determining whether a contracting employer is responsible for alleged violations of FEHA is whether the employer exercised “direction and control” over the employee. Jimenez, 41 Cal.App. at 197. Examples of direction and control are whether the employee must obey instructions from the employer and whether the employer can fire the employee at any time. Id. Other examples the court cited were the fact that (1) Jimenez reported to an USCM employee; (2) she supervised both employees hired by USCM and employees hired through staffing agencies; (3) she was subject to USCM’s employee handbook; (4) she participated in company trainings and was able to use USCM’s clinic for on-the-job injuries; (5) she was subject to USCM’s disciplinary policies; and (6) USCM employees supervised and train (and are supervised and trained by) employees hired through staffing agencies. Id. at 199-200.

While the court declined to adopt a bright-line rule that every worker placed through a staffing agency is an employee of the contracting company, it did make clear that companies can’t dodge responsibility for discrimination and harassment that happens under their watch simply by pointing out that staffing agencies are responsible for the things staffing agencies are normally responsible for, namely hiring, payment, benefits, and time-tracking. A company will need to show that it did not exercise direction and control over the employee. This is a win for employees and a win for FEHA, whose purpose is “to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination.” Id. at 71-72.

Bryan Schwartz Law has written about FEHA before. If you believe you are being discriminated against in the workplace and were hired through a staffing agency, contact Bryan Schwartz Law today.

Tuesday, January 28, 2020

New Decade, New Worker Protections: AB-5, Dynamex, and Independent Contractor vs. Employee Status in 2020


Struggles over newly-in-force AB-5 are already well under way.

AB (California State Assembly Bill) 5 is a newly-enacted California law codifying the landmark California Supreme Court case Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, under which many California workers are considered employees, who better benefit from California legal protections, rather than independent contractors. Bryan Schwartz Law has written about Dynamex here and here, and about AB-5 here. To recap, Dynamex established the “ABC” test for determining whether a worker is an employee or an independent contractor, with a presumption that a worker is an employee, and with the burden on companies to demonstrate that workers are independent contractors. Id. at 957. To meet this burden, the putative employer must show that the worker: (a) is free from the control and direction of the hiring entity, (b) performs work outside the usual scope of the entity’s business, and (c) is engaged in an independently established trade, occupation, or business. Id. at 964. Failing to demonstrate any one of these elements is sufficient to show an employee-employer relationship. Id. at 964. AB-5 codified this test for most workers in California.

The business community has mounted a campaign to weaken or eliminate this expansive protection for California workers. For instance, gig economy giants Uber, Lyft, and DoorDash have spent millions of dollars introducing a ballot measure to exempt them from AB-5 and permit them to continue exploiting their drivers. Uber has also changed its operations in California to try and satisfy AB-5, sending a letter to riders explaining their changes and threatening that AB-5 could hurt riders. Uber has also argued that it is a technology company instead of a transportation company (which does not even pass the laugh test), to try to help Uber satisfy the “B” prong of the test.

The trucking industry has also fought AB-5. On New Year’s Eve, federal judge Roger Benitez issued a temporary restraining order temporarily preventing enforcement of AB-5 “as to any motor carrier operating in California,” in the case California Trucking Association v. Becerra, 3:18-cv-02458-BEN-NLM. The temporary restraining order opined that there was a significant likelihood that AB-5’s applicability to truck drivers would be preempted (and thereby unenforceable) by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA” or “F-Quad-A”), which has language that applies to “any motor carrier.”

Los Angeles County Superior Court judge William Highberger went further in an order issued earlier this month in California v. CAL Cartage Transportation Express LLC, BC689320. The Los Angeles City Attorney’s Office filed the case on January 1, 2018, before Dynamex had been decided, and alleged that the company defendants had misclassified their truck drivers as independent contractors when they should have been classified as employees. Following Dynamex and AB-5, the Los Angeles City Attorney argued that the stronger “ABC” test should apply, while the defendant companies maintained that the previous multi-factor independent contractor test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, should apply instead. The judge sided with the defendant companies, opining that AB-5 was in fact preempted by the FAAAA, under the premise that “Prong B of the ABC test . . . prohibits motor carriers from using independent contractors to provide transportation services.”

The issue is far from decided. Judge Highberger’s decision is surely going to be challenged on appeal, and hundreds of truck drivers have filed labor complaints to enforce their rights under AB-5, signaling further litigation. There also remains the question of whether Dynamex’s ABC test applies retroactively to disputes arising before Dynamex was handed down. Last fall, the 9th Circuit Court of Appeals certified this question to the California Supreme Court in Vazquez v. Pan-Pro Franchising International, Inc. The California Supreme Court is also reviewing a state appeals court case, Gonzales v. San Gabriel Transit, Inc., which held Dynamex to apply retroactively. The struggle over the worker protections of Dynamex and AB-5 goes on.

If you believe you are being treated as an independent contractor when you should be treated as an employee, contact Bryan Schwartz Law.