Wednesday, May 18, 2016

Millions of Salaried Workers Are Newly Eligible For Overtime, Thanks to an Updated Department of Labor Rule

Today the Department of Labor issued a new rule that updates federal overtime regulations and dramatically increases the number of salaried workers entitled to overtime pay. The final rule will go into effect on December 1, 2016. At that time, an estimated 4.2 million additional workers will automatically be eligible for overtime compensation, according to the Department.

The Fair Labor Standard Act entitles certain white-collar employees to overtime pay. Previously, only workers earning up to $23,660 were entitled to overtime compensation, a static amount set in 2004. Under the new rule, most salaried workers who earn up to $47,476 annually must receive time-and-a-half pay for every hour worked in excess of 40 per week. That amount is pegged to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, and will automatically update every three years, based on the latest wage growth data. Thus, the cutoff for overtime eligibility is expected to increase every three years.

The new rule also increases the annual compensation requirements for highly compensated employees.

It remains to be seen how employers will respond to the new rule. However, many employee advocates believe the new rule will result in higher earnings, or at least more free time, for middle class workers.

Tuesday, May 17, 2016

Another Good Day for Class Actions before the Eight-Member Supreme Court

In a continuation of what is starting to look like a trend before the ideologically split, eight-member Supreme Court, on Monday morning a majority of the Justices signed on to a narrow procedural ruling in Spokeo v. Robins, which had the practical effect of preserving consumer class actions based on statutory, non-pocketbook injuries. Had the Court ruled in favor of Spokeo, the ability of consumers to bring class action lawsuits for harms such as the privacy rights at stake in this case would have been severely limited.

Thomas Robins sued Spokeo, the self-described “people search engine,” under the Fair Credit Reporting Act (“FCRA”), on behalf of a class of consumers, for publishing inaccurate reports concerning his age, marital status, education, and employment history. Mr. Robins alleged that the misinformation had negatively interfered with his job search efforts. The FCRA, an attempt by Congress to address widespread inaccuracies in consumer credit reporting and the significant challenges consumers face in trying to correct such information, requires that consumer reporting agencies take certain steps to ensure the accuracy of consumer data and grants injured consumers a right to sue for negligent or willful noncompliance with the Act.

The district court had granted Spokeo’s motion to dismiss on the basis that Robins lacked Constitutional standing to sue because he had not adequately pleaded an injury-in-fact. The injury-in-fact requirement demands that a plaintiff has suffered a harm that is both individualized and concrete. The Supreme Court has aggressively enforced this and other components of standing doctrine in the past three decades, making it more difficult for individuals to challenge corporate or government misconduct. For example, in an influential but extremely troubling 1984 decision, the Supreme Court held that the parents of African-American school children lacked standing to challenge the unlawful granting of tax-exempt status to racially discriminatory private schools, because they lacked an injury-in-fact.

Mr. Robins appealed to the Ninth Circuit, which ruled in his favor, finding that he had satisfied the injury-in-fact requirement by alleging that Spokeo had violated his statutory rights granted by FCRA and that he had a personal (rather than collective) stake in the handling of his own credit information.

Prior to Justice Scalia’s death, Spokeo seemed destined to continue the efforts of the Court’s conservative majority to weaken the ability of employees and consumers (amongst others) to recover against corporations through class action lawsuits. The conservatives Justices’ previous successes in this realm include two infamous decisions handed down five years ago: AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (upholding class-action waivers in consumer arbitration agreements) and Wal-Mart Stores Inc. v. Dukes (2011) 131 S. Ct. 2541 (de-certifying a nationwide class of female employees who relied on statistics to prove rampant sex discrimination). These decisions led to increasingly aggressive attempts by corporations to immunize themselves from class actions. Spokeo’s assertion that Mr. Robins lacked standing to sue Spokeo for violations of the FCRA reflected one such attempt, this time relying on the modern standing doctrine, described above, to strip consumers of an essential remedy for the widespread abuses in credit reporting.

However, without a fifth conservative vote, the high court instead sent the case back to the Ninth Circuit for further consideration of whether Mr. Robins’s injury was sufficiently concrete to satisfy the injury-in-fact requirement. Justice Alito, writing for a six-Justice majority, expounded on the concreteness element and noted that standing requires something more than “a bare procedural violation” of a statute. As an example, Justice Alito hypothesized that the incorrect reporting of an individual’s zip code likely would not result in concrete harm. Justice Alito added that a risk of future concrete harm could also satisfy the injury-in-fact requirement.

Justice Ginsburg, in an opinion joined by Justice Sotomayor, dissented to opine that remand to the Ninth Circuit was unnecessary because Mr. Robins’ allegations met the concreteness requirement. Therefore, all eight Justices appeared to agree that Congress may confer standing by creating statutory rights and remedies, so long as the plaintiff bringing suit has suffered an individualized harm resulting from something more than a bare procedural violation of a statute.

This issue is likely to return before a nine-member Court, but by preserving the status quo with respect to standing and class actions, the result was a clear win for consumers, employees, and those who advocate on their behalf.

Monday, May 9, 2016


This post is dedicated to preserving core American values by defeating Donald Trump in the 2016 Presidential election.

America was founded 240 years ago on the notion that all are created equal, endowed by our Creator with certain unalienable rights – the rights to life, liberty, and the pursuit of happiness. Ours is largely a nation of immigrants and has been since the thirteen colonies were established. We have fought, since the first settlers, and to the present day, for religious freedom. Our immigrants contributing to America’s greatness are as diverse as the people of the world – coming from every inhabited continent and country, every race, national origin, and creed.

Donald Trump has never held public office, fought for this country, or engaged in substantial public service of any kind, and is thus the least-qualified person ever to aspire to the presidency as a major party candidate. His best known public policy positions, which he rode to the likely Republican nomination, scapegoat immigrants and religious minorities. 

Trump has said that the children of undocumented immigrants should not be protected by the constitution (though most of his own kids were children of immigrants, Ivana Trump, who was Czech, and Melania Knauss, who was Slovenian)

Trump has said, "Day 1 of my presidency, they [illegal immigrants] are getting out and getting out fast." He has said that all immigrants in the U.S. illegally (11 million, approximately) should be deported, but has in the past said that only some should be deported, and has no plan for conducting such an operation, which experts says is impossible. He has advocated building a wall along the entire Mexican border, which Pope Francis decreed as un-Christian. Trump responded by calling the Pope a pawn of the Mexican government

Trump has also famously said that all Muslims should require special identification (like the Jews in Nazi Germany), and that Muslims should not be allowed to come to the United States at all (in violation of the First Amendment guaranteeing freedom of religion), and called Brussels a "hellhole" while it was recovering from terrorist threats, because of its Muslim minority. Trump calls for surveillance of mosques in the U.S. 

We have never had a major party candidate like Trump in America, but other countries have, so we know that we must take Trump's bigoted positions seriously. Read, for example:

An unqualified demagogue like Trump, who openly espouses racist views as a basis for seeking the high and honorable position of U.S. President, mocks America and its bedrock values, and must be taken seriously, and stopped. 

It is of no consequence whether you or I are not Mexican or Muslim. A racist attack on one of us is an attack on all Americans. We recall the words of Martin Niemöller, who had the courage to speak out against Hitler as a Protestant pastor. He said:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

It is time for all patriotic Americans to speak out against Donald Trump.

Wednesday, April 6, 2016

California Supreme Court Clarifies that Most Employers Must Provide Employees with Seats for Tasks that May Reasonably Performed While Sitting

On Monday, the California Supreme Court provided much-needed guidance on a little-known state regulation that requires employers to provide employees with “suitable seats” when reasonable. The Supreme Court’s opinion in Kilby v. CVS Pharmacy, Inc. clarified that whether an employer must provide a seat depends on the individual tasks the employee regularly performs and whether any of those tasks may reasonably be performed while sitting, not whether the majority of tasks performed by the employee could be performed seated. It further clarified that employees who regularly work standing must be provided with a seat during breaks.

Despite the standing-desk trend amongst office workers, for workers who spend most of their shifts on their feet, sitting down for part of the workday reduces fatigue and promotes overall health. The Supreme Court’s interpretation of the seating requirement thus forces employers to evaluate the physical conditions of their employees’ workspaces through the lens of safety and health.

The U.S. Court of Appeals for the Ninth Circuit had requested guidance from the California Supreme Court to resolve two cases which implicated the seating requirement: one involving cashiers at CVS Pharmacy and another involving tellers at JPMorgan Chase Bank. The requirement is contained within the Industrial Welfare Commission’s wage orders, which regulate wages, hours, and working conditions for various job categories. (It impacts most workers in California, with the exception of those regulated by wage orders covering agricultural, construction, drilling, logging, and mining jobs, which have different seating rules.)

The California Supreme Court first traced the history of the seating provision, which dates to a 1911 law requiring that female employees in the mercantile industry be allowed to sit during breaks. A few years later, the Industrial Welfare Commission incorporated seating requirements for women and children into the various wage orders, including a requirement that garment and laundering workers be permitted to work while sitting. Seating requirements evolved over the following decades, and became applicable to employees regardless of gender in the early 1970s. In its current form, the relevant seating provision states:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

In interpreting the seating requirement, the Court rejected the employers’ position that “the  nature of the work” language calls for a review of all tasks performed by an employee throughout the day to categorize work into “sitting jobs” and “standing jobs.” The Court explained: “There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.” However, the Court also rejected the employees’ argument that if a single job task could be performed sitting, a seat must be provided.

The Court was instead persuaded by guidance from the Division of Labor Standards Enforcement which cautioned that the all-or-nothing approach obscures what tasks a worker actually performs (and their duration) and ignores the central purpose of the wage orders to provide a minimum level of protection for workers. But the Court also noted that, contrary to the argument advanced by the employees, the reasonableness standard in the provision means that a seat likely need not be provided where seated tasks comprise very little of the workday.

The Court’s standard thus requires an examination of all relevant factors and a balancing of the employee’s need for a seat against the impact on the employer’s business. Relevant considerations would include whether tasks in a given location could be performed sitting, whether sitting would significantly interfere with other standing tasks, and the impact on overall job performance. The Court further explained that the inquiry is an objective one and an employer’s mere preference for standing work is irrelevant.

Finally, the Court explained that sections 14(A) and 14(B) are not mutually exclusive and that both may apply to the same employee during different parts of the workday. For instance, an employee who performs both seated and standing work may be entitled to a seat during breaks in addition to while performing seated tasks.

The Supreme Court’s guidance is significant because employees who suffer violations of the seating requirement may be able to file an action under the Private Attorneys General Act of 2004 (PAGA). PAGA provides a cause of action for workers to enforce Labor Code violations in court on behalf of themselves and other aggrieved employees. In the context of the seating requirement, employers who fail to provide seats when it is reasonable to do so could be on the hook for penalties starting at $100 for each aggrieved employee per pay period. See Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 218; see also Cal. Labor Code § 2699(f)(2). Given that risk, many employers will likely find it more cost-effective to simply buy more chairs.

If you believe that your employer has unreasonably denied you access to seating while performing work or during breaks, please contact Bryan Schwartz Law.

Wednesday, March 30, 2016

A Close Call for Unions and the Employees they Represent at the U.S. Supreme Court

Public-sector unions will live to fight another day after the U.S. Supreme Court issued a 4-4 split decision in Friedrichs v. California Teachers Association on Tuesday. The ruling—which comprised of a single sentence and has no precedential value outside the Ninth Circuit—is most notable for what it did not do: that is, provide a means to gut unions for both public- and private-sector employees nationwide.

Friedrichs challenged a long-standing rule, first applied to public-sector unions in the 1977 Supreme Court case Abood v. Detroit Board of Education, 431 U.S. 209, 235-36. In Abood, the Court determined that public sector unions could require non-members to pay an agency fee (also known as a “fair share fee”)  to support the union’s collective-bargaining and-grievance adjustment activities from which all employees would benefit regardless of their union membership. Id. at 225-31. The Court distinguished these expenditures from a union’s political spending, for which a non-member could not be compelled to contribute to the union under the First Amendment. Id. at 232-36. The Abood decision in turn relied on earlier decisions by the high court which affirmed the right of private-sector unions to require all employees within a bargaining unit to contribute to non-political union expenditures. See Machinists v. Street, 367 U.S. 740 (1961); Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956).

As a practical matter, a union’s ability to ensure that all employees pay their fair share of collective bargaining expenses is essential to its survival. A union bargains on behalf of all employees, regardless of whether those employees are members. Without the ability to require fair share fees, a union faces a collective action problem: why would an individual employee pay union dues when that employee can reap all of the benefits of the union’s collective bargaining efforts for free?
The necessity of fair share fees to the survival of unions has made them an enticing target for conservative efforts to attack unions and worker protections generally. The Roberts Court (or rather, its five most conservative members) signaled its eagerness to overturn the nearly forty-year old Abood precedent in its 2014 decision Harris v. Quinn, in which Justice Alito’s majority opinion criticized Abood extensively and declined to extend its holding to home health care workers paid by the state of Illinois. See Harris v. Quinn, 134 S.Ct. 2618 (2014). After Harris, the conservative advocacy group the Center for Individual Rights took the bait and brought the Friedrichs case with the goal of eliminating fair share fees from public-sector unions. Then, after the oral argument in Friedrichs this January, those same five justices from the Harris majority appeared primed to overrule Abood, notwithstanding the consequences for unions nationwide and the millions of workers they represent. 

Thus, little doubt exists that were Justice Scalia still on the Court, Friedrichs would have crippled public-sector unions and provided a blueprint to apply the same reasoning to target private-sector unions as well. That decision would have paralyzed the collective bargaining rights of teachers, firefighters, healthcare workers, and countless other public employees in the 23 states that allow fair share fees.

Unions and workers had a good day on Tuesday, but the fight continues. The Center for Individual Rights has already announced its intent to file a petition for rehearing of Friedrichs in light of the split decision. The future of public-sector employee unions thus rests in the hands of the Supreme Court’s next member. 

Tuesday, March 22, 2016

High Court Affirms Workers’ Right to Prove Mass Wage Theft Cases With Statistical Evidence

Today, the United States Supreme Court affirmed a basic principal underlying lawsuits challenging mass wage theft – if employers fail to keep records of employees’ work, then employees get to use their best estimate to prove their employer’s wage theft, including estimates based on statistical and representative evidence. The Court also confirmed that representative evidence may be used beyond the wage and hour context.

As we wrote here, the Court seemed unpersuaded at oral argument last fall that it should overrule seventy years of precedent, first established in Anderson v. Mt. Clemens Pottery Co., that employees may use a “representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records.” Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 WL 1092414, at *9 (Mar. 22, 2016). Writing for a 6-2 majority, Justice Kennedy affirmed this long-standing and critical rule of law.
Importantly, the Court went beyond the lenient standard of proof established in Mt. Clemens, which is unique to the Fair Labor Standards Act context, and thereby confirmed that representative evidence can be used as common proof of classwide liability and damages in other legal contexts. In particular, the Court clarified that Wal-Mart Stores, Inc., v. Dukes, the infamous decision that struck down a nationwide gender discrimination class action and has been the cause of much consternation for worker and consumer advocates, “does not stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability.” Id. at *10. Instead, the Court correctly recognized that representative evidence, like any evidence, can be persuasive or unpersuasive to a jury depending “on the purpose for which the sample is being introduced and on the underlying cause of action.” Id. at *8. In cases where “each class member could have relied on that sample to establish liability if he or she had brought an individual action,” representative evidence is more appropriate in contrast to cases where affected individuals are not sufficiently “similarly situated.” Id. at *8, *11. Thus, any doubt about the propriety of representative evidence to prove classwide liability in the wake of Wal-Mart and Comcast Corp. v. Behrend has been dispelled. The new battleground appears to be not if, but when representative evidence can be deployed to establish an element of a cause of action on a classwide basis. Id. at *8.
Interestingly, the Court observed that the district court would have erred in denying class certification if its sole basis for denying class certification were the lower court’s perception of the expert report as unpersuasive. Id. at *11. Only if the lower court “concluded that no reasonable juror could have believed that the employees spent roughly equal time donning and doffing” would denying class certification have been proper. Id. See also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.”) The takeaway appears to be that the Court will require aggrieved plaintiffs seeking to use representative evidence to first establish that they were “similarly situated” such that the defendant’s harmful conduct affected them “roughly” in the same way. Id. However, once this threshold is met, the representative evidence may be used to establish classwide liability if it is otherwise admissible – no “Trial by Formula” concerns in sight.
Also, as anticipated by comments at oral argument, the Court declined to consider the important question of whether the possibility of uninjured class members prevents a district court from certifying a class action because Defendants abandoned the issue. The district court will have to address this issue in the first instance on remand. If not addressed in this case, the issue of possibly uninjured class members likely will continue to be raised by employers seeking to avoid accountability for their wrongdoing by arguing that if they didn’t steal from each of its employees, then its victims cannot stand together because unaffected employees might possibly receive a windfall. Thus, the employer should be let off the hook, or so the defense bar’s argument goes. A patently ridiculous argument, but one that will be resolved another day. 
            Lastly, the Court cautions that any representative evidence that relies upon expert witnesses, sampling, and similar evidence remains subject to a Daubert challenge, and thus, must be methodologically sound. This is in line with California Supreme Court jurisprudence that a class action may be certified using representative evidence, but the methodology behind the representative evidence must be credible and free of defects such as sampling errors. See Duran v. U.S. Bank Nat. Assn., 59 Cal. 4th 1, 13, 50-8 (2014) (Liu, J., concurring). See also here and here for discussion of the holding in Duran, and issues relating to the use of representative proof to advance the cause of workers.

            Thus, Tyson Foods, far from spelling the end of representative evidence in class actions, has breathed new life into class actions used to protect the interests of consumers, workers, and the general public. 

Friday, March 4, 2016

District Courts in Ninth Circuit Increase Scrutiny of Reversions After Allen v. Bedolla (9th Cir. 2015)

Last year, this blog covered the Ninth Circuit’s opinion in Allen v. Bedolla, vacating a class action settlement for, among other reasons, the parties’ agreement to a reversionary settlement. 787 F.3d 1218 (9th Cir. 2015). Since Bedolla was handed down from on high, district courts throughout the Ninth Circuit have applied the teachings in Bedolla by increasing their scrutiny of class action settlements containing reversions.

In a variation on the common pairing of a claims-made, reversionary settlement, the parties in Banks v. Nissan North America, Inc., a consumer class action related to faulty car brakes, agreed to a reversion of any reduction in attorney’s fees ordered by the court. No. 11-CV-2022-PJH, 2015 WL 7710297, at *13 (N.D. Cal. Nov. 30, 2015). The district court denied plaintiffs’ motion for final approval of class action settlement because, not only did class counsel attempt to receive twelve times the amount paid to class members, class counsel agreed to revert to defendant any “reduction of the attorneys’ fee award.” Id. at *12. Put more plainly, if the court found that class counsel was asking for too much money from the class, then defendant would have received a windfall instead of the class benefiting from the savings. Id. at *13. While there were additional reasons given by the court for its denial of final approval, the presence of a reversion was an important indication that the proposed settlement was not “fair, reasonable, and adequate.” Fed. R. Civ. Proc. 23(e).

Bedolla has also been invoked to strike down a proposed class settlement where any funds not claimed by the class would have been used to pay defendants’ employer taxes instead of the class or cy pres. The court in Sanchez v. Frito-Lay, Inc. rightfully wondered “why it would be fair to the putative class members to satisfy Defendant's employer payroll tax obligation out of the residual settlement amount” instead of directing those funds to the cy pres.  No. 1:14-CV-00797 AWI, 2015 WL 4662636, at *11 (E.D. Cal. Aug. 5, 2015) report and recommendation adopted, No. 1:14-CV-797-AWI-MJS, 2015 WL 5138101 (E.D. Cal. Aug. 26, 2015); see also Millan v. Cascade Water Servs., Inc., 310 F.R.D. 593, 612 (E.D. Cal. 2015) (also citing to Bedolla, denying proposed class settlement, and noting that “[i]f unclaimed funds are to revert to a defendant the parties should explain why those funds should revert to Defendant.”)

Furthermore, the court pointed out that “[t]o the extent that the parties contend that this does not act as a reversion, as the money is not directly returned to Defendant, the net effect is the same” because “there is no indication that class members benefit from that provision of the settlement.” Id. Just like calling a clerical employee a “manager” does not make him so, parties cannot fix the inherent problems with reversions in class settlements by sending the class’s money to the IRS on behalf of the defendant instead of directly returning the money to the defendant. Accordingly, the court kiboshed plaintiffs’ motion for class and conditional certification.

Even where a proposed settlement is eventually approved, a court is given pause by the presence of a reversionary settlement, especially when attorney’s fees are pegged to the nominal common fund instead of the percentage of the fund actually claimed by the class. For example, the court in Tait v. BSH Home Appliances Corporation was “concerned” about the presence of all three factors laid out in Bedolla that indicate “class counsel have allowed pursuit of their own self-interests … to infect negotiations”:

(1) ‘when counsel receive a disproportionate distribution of the settlement;’

(2) ‘when the parties negotiate a “clear sailing” arrangement’ (i.e., an arrangement where defendant will not object to a certain fee request by class counsel); and

(3) when the parties create a reverter that returns unclaimed fees to the defendant.

No. SACV100711DOCANX, 2015 WL 4537463, at *5 (C.D. Cal. July 27, 2015), appeal dismissed (Jan. 13, 2016) (internal citations omitted) (emphasis added). Predictably, the court’s reluctance to grant final approval was due, in part, to the caution in Bedolla “that proportionality should be determined with reference to the actual amount paid to the class” rather than the nominal value of the settlement without taking into account the unclaimed funds that would revert to the defendant. Id. at *6.
Importantly, the “problematic incentives inherent” in reversionary settlements caused the court to discount the views of counsel regarding the quality of the settlement despite acknowledging that “[c]ounsel on both sides of this case are experienced litigators” and that “[c]lass counsel competently investigated and litigated the factual and legal issues raised in this action….” Id. at *8. Thus, a court might take a dim view of class counsel, even exceptionally qualified and diligent class counsel, if they support a reversionary settlement on behalf of the class.
            In sharp contrast to the cases discussed above, the court in Aichele v. City of Los Angeles – a class action brought on behalf of peaceful protestors whose constitutional rights were violated by Los Angeles police officers – granted plaintiffs’ motion for attorney’s fees because “none of the warning signs for a settlement that may be influenced by improper favorable treatment of class counsel exists here.” No. CV1210863DMGFFMX, 2015 WL 5286028, at *6 (C.D. Cal. Sept. 9, 2015). The court supported its decision, in part, by reference to the fact that none of the “class fund revert to Defendants, and [do not] result in a highly disproportionate fee in relation to the actual (as opposed to theoretical) monetary recovery of the class.” Id.; see also In re High-Tech Employee Antitrust Litig., No. 11-CV-02509-LHK, 2015 WL 5158730, at *14 (N.D. Cal. Sept. 2, 2015) (approving ~$40m in attorney’s fees for class counsel in part because “Class Counsel [did not] agree that any portion of the $415 million common fund could revert back to Defendants.”)

            At best, reversionary settlement agreements result in heightened judicial scrutiny of your proposed class settlement and a judicial stink eye that may affect your reputation with the court in the future. At worst, including a reversion will cause a court to strike down what you have worked tirelessly to secure. With district courts vigorously applying Bedolla and its forbearers to class settlements, why risk including a reversion in your hard-fought settlement?