Washington Post Story Regarding Disability Class Action Against U.S. State Department Brought by Bryan Schwartz Law

To read a Washington Post article regarding an impactful case being litigated by Bryan Schwartz Law, click on this link:

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/19/AR2010101907821.html

Historic Lawsuit Aims to Open State Department to Disabled Foreign Service Officers

Class Agent was a qualified candidate who passed rigorous exams and was denied employment solely on the basis of her medical condition.

The United States Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department by San Francisco Bay Area attorney Bryan Schwartz. The Class Agent in the matter, Doering Meyer, is a woman with multiple sclerosis (MS) who qualified for a Foreign Service Officer position after a rigorous screening process – only to be denied employment because her multiple sclerosis automatically disqualified her, under the State Department guidelines challenged in the suit.

“I feel great today knowing we will be making a difference for others with disabilities. I am as happy today as I was angry when I was denied the career of my dreams without being evaluated as an individual, as required by the law,” said Doering Meyer upon hearing the news of the class certification decision. After being denied for years, Meyer ultimately joined the Foreign Service after a “waiver” process, with the help of Schwartz, her attorney. “I’ve always been inspired by leaders like Secretary Hillary Clinton who believes rights for the disabled were fundamental civil rights. I am hopeful she will now change this misguided policy,” Meyer added.

The September 30th decision, by Administrative Judge Mary Elizabeth Palmer of the EEOC’s Baltimore office, found that the Foreign Service’s “worldwide availability” hiring requirement is properly the subject of a class action. Under the “worldwide availability” requirement, a Foreign Service Officer candidate must be able to serve at any of the State Department’s approximately 270 foreign posts, without the need for any ongoing medical treatment. Even if a disabled worker can serve at 80% of the Foreign Service posts around the world without any treatment, or at 100% of the Foreign Service posts with reasonable accommodations for her disabilities, she is not eligible to be hired into the Foreign Service under the challenged policy, Judge Palmer’s decision found. For decades, thousands of disabled Americans have been denied entry into the Foreign Service and discouraged from even applying for such positions based on the way the “worldwide availability” rule has been enforced, according to Schwartz.

The ruling particularly questioned the State Department’s blanket assessment approach toward disabled applicants. The EEOC stated:

“No individualized assessment was done of [Meyer’s] impairment or how it would limit her ability to do the duties of the position(s) she sought in particular countries around the world. Rather, when the [State Department’s] Office of Medical Services determined (or perceived) that she had a permanent or long-lasting medical condition or record of such a condition, she was denied medical clearance. ”

The Rehabilitation Act (Rehab. Act), which is like the Americans with Disabilities Act and applies to all Federal employees and applicants for employment, requires that government agencies consider each person with a disability on his or her own merits and based on his or her own limitations (or lack thereof). The Rehab. Act requires the government to provide reasonable accommodations to people with disabilities, where such accommodations could enable the applicants to perform the duties of a position without imposing an undue hardship on the government agency.

Indeed, the Rehab. Act calls upon the Federal government to be a model employer of disabled workers. Yet, in Meyer’s case, and those of dozens like her across the United States, the State Department simply disregarded these requirements, and categorically decided that, because Meyer was once diagnosed with MS, she could not be in the Foreign Service.

Prior to being denied from the Foreign Service, Doering Meyer, recently of St. Paul, Minnesota – whose MS had long been in remission – went through a two and a half year screening process, in which she passed challenging oral and written exams and was provided a conditional offer of appointment extended to less than 5% of those who apply. The offer was contingent on passing the security, suitability, and medical clearances – and, although Meyer also passed the security and suitability tests, she was denied a medical clearance based on her MS.

Amazingly, the State Department decided that because people with MS may be susceptible to complications in humid climates – though there was no evidence of such in Meyer’s own history – Meyer could not be posted anywhere worldwide. Eventually, after her attorney, Bryan Schwartz, intervened, Meyer was granted an exceptional waiver to be hired to the Foreign Service despite her medical history - the only person who received such a waiver that year. After nearly two years of additional delay, she was finally placed in a Foreign Service position.

“We hope through this suit that we will finally change this insidious State Department policy which for so long has closed the doors of opportunity to disabled Americans, so that the Foreign Service will truly be the face of all Americans around the globe,” said Attorney Bryan Schwartz. “The Obama Administration stands for the message that we should tell our children that they can be whatever they want to be when they grow up. Now, it is time for the State Department to help us to live up to that promise,” Schwartz added.

For more information about this case, Meyer, et al. v. Clinton (Department of State), please contact Bryan Schwartz.

JPMorgan Chase Sued By Misclassified Appraisers for Unpaid Wages

Appraisers at JPMorgan Chase filed a class and collective action suit this week seeking to recover millions of dollars in unpaid wages based on the financial services giant’s practice of misclassifying these employees as “exempt” from overtime pay, among other violations of California and federal law. Appraisers are responsible to check home valuations for home loans sold by JPMorgan Chase using certain well-defined criteria. The Appraisers allege that they are held to strict production standards and must follow detailed internal guidelines with every appraisal, placing them squarely outside of the so-called “white collar” exemptions to the Fair Labor Standards Act and California wage and hour protections.

“The company finally made us hourly employees this past summer,” said Mary Ann Adlao of San Ramon, California, one of the lead plaintiffs in the suit, “but they did not repay us for unpaid overtime and other owed wages for all the years we have worked for the company and its predecessors while we were misclassified.” “It’s just another example of a giant bank cutting corners at the expense of its employees,” Adlao continued.

The lawsuit, filed in the San Francisco-based U.S. District Court for the Northern District of California, alleges that Adlao and co-plaintiff Marian Williams have worked for Chase and a mortgage subsidiary, EMC Mortgage, and its predecessors in interest, Bear Stearns and Encore Credit Corporation, for well over forty hours per week and eight hours a day without overtime pay and meal and rest period premiums. The suit also alleges the employees, who worked in California and Arizona, were deprived of itemized wage statements and denied certain reimbursements, both required under California law.

“Given the recent court precedents emphasizing that production employees are non-exempt, and the company’s own implicit admission that the employees were misclassified – when Chase recently made them hourly – we are confident that these Appraisers are entitled to the back wages and other relief sought in the Complaint,” said Bryan Schwartz, whose firm, Bryan Schwartz Law (www.BryanSchwartzLaw.com) represents the plaintiffs. “We look forward to bringing Chase’s practices to light and recovering the wages that our clients and their co-workers earned but were not paid,” said Schwartz.

For more information about this case, Adlao, et al. v. JPMorgan Chase & Co., et al. (Case No. Civ-10-4508 EMC), please contact Bryan Schwartz Law.

Reasonable Accommodation With Time Off or Reduced Hours

An employee is undergoing chemotherapy. An employee suffers from an auto-immune disorder. An employee suffers from circulatory difficulties. Whatever the disability, the employee’s doctor has asked for time off for the employee. Or, perhaps the employee’s doctor has asked for a permanent limitation in the employee’s work hours, because of the employee’s condition. What is the extent of the employee’s entitlement to accommodation with time off or limited duty hours?

Of course, if an employee worked the requisite hours in the preceding year and otherwise qualifies for Family Medical Leave Act or California Family Rights Act leave, they will be entitled to some time off. However, what accommodations should/must an employer make when this statutorily-provided leave is expired?

First, the employer should be mindful of the fact that, under the ADA Amendments Act (ADAAA), the term “disability” is broadly construed and covers, e.g., cancer in remission and autoimmune disorders like rheumatoid arthritis, without regard for “mitigating measures” like chemotherapy. See, inter alia, ADAAA § 2(a); ADAAA § 4; 42 U.S.C. § 12102(4)(D), as amended. Though employers might formerly have defended an action by arguing that the purported disability only limits the employee in a particular job or narrow class of jobs (e.g., under Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)), now, the employer can safely assume the employee requiring substantial time off or a limited work schedule will qualify under the definition of disability, and should move quickly to the reasonable accommodation inquiry.

Second, federal regulations define “reasonable accommodations” as “[m]odifications or adjustments to the work environment . . . that enable a qualified individual with a disability to perform the essential functions of that position.” 29 C.F.R. § 630.2(o)(1)(ii). Both the FEHA and ADA specifically list scheduling adjustments as examples of “reasonable accommodations” and use identical language. See Cal. Gov. Code § 12926(n)(2) (“Job restructuring, part-time or modified work schedules”) and 42 U.S.C. § 12111(9).

Numerous courts have endorsed these regulatory examples as well. See, e.g., Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 263 n.6 (2000) (reasonable accommodation may include part-time or modified work schedules) (citing Cal. Admin. Code tit. 2, § 7293.9(a)(2)); Witchard v. Montefiore Medical Center, 2009 WL 602884, at *16 (S.D.N.Y. Mar 9, 2009) (“Examples of reasonable accommodations may include, but are not limited to . . . “part-time or modified work schedules”) (quoting 29 C.F.R. § 1630.2(o)(2)(i) and (ii)); Falor v. Livingston County Community Mental Health, 2003 WL 21684183, at *5 (W.D.Mich. May 30, 2003) (“Examples of “reasonable accommodation” include, without limitation . . . part-time or modified work schedules”) (quoting 42 U.S.C. § 12111(9)(B)); Valentine v. American Home Shield Corp., 939 F.Supp. 1376, 1399 (N.D.Iowa 1996) (“part-time employment is a possible reasonable accommodation”).

So, the employer should assume that the employee’s condition is a disability if he or she needs a reduced work schedule and/or extra time off, and should assume that such an accommodation is among those which might generally be considered a reasonable accommodation. However, the inquiry only begins there. Must an employer make a temporarily reduced work schedule a permanent accommodation, and how much time off must an employer allow an employee?

A. An Employer May Not Eliminate Reasonable Accommodations Simply by Designating them as “Temporary.”

As the Equal Employment Opportunity Commission's (EEOC's) interpretive guidance on the ADA makes clear, the duty to identify and provide a reasonable accommodation under the ADA is an ongoing duty to identify and provide accommodations that enable the employee to perform the essential functions of the job held or desired. 29 C.F.R. § 1630.9. This issue was analyzed in depth last year by a California Court of Appeal in A.M. v. Albertsons, 2009 WL 2986423 (Cal. App. 1 Dist., Sept. 18, 2009). The court stated, “Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation.” Id. at *6. The A.M. v. Albertson’s court ultimately upheld a $200,000 jury verdict for the plaintiff based upon one instance in which the employer failed to provide her with the prior agreed-upon accommodation. Id. at *7. An employer should not assume that its obligation to provide accommodations is fleeting or can be addressed by calling certain accommodations “temporary.”

B. An Employer Should Consider Reassignment a Last Resort and Make Time Off and Reduced Hours Adjustments First.

Courts do not favor demoting an employee or sending him or her to a career “Siberia” as a result of limitations requiring reasonable accommodations. On the contrary, reassignment is considered an accommodation of “last resort” and adjustments to work schedules should be considered first. See, e.g., Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 (citing Aka v. Washington Hospital Center (D.C. Cir. 1998) 156 F.3d 1284, 1304, and acknowledging a duty to reassign a disabled employee "who cannot be otherwise accommodated"); Cravens v. Blue Cross and Blue Shield of Kansas City (8th Cir. 2000) 214 F.3d 1011, 1019 (relying on Aka, 156 F.3d at 1301, to conclude that "reassignment is an accommodation of last resort"). See also 29 C.F.R. App. § 1630.2(o) (EEOC's interpretive guidelines provide that “reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship.”).

The California Court of Appeal upheld a jury verdict of $1,990,385 in compensatory damages, $1,200,000 in punitive damages against the defendant, and $7,000 in punitive damages against the defendant’s CEO in a case where an employer failed to reasonably accommodate an employee undergoing breast cancer treatment by allowing her to reduce her hours worked in the office. See McGee v. Tucoemas Federal Credit Union, 153 Cal. App. 4th 1351, 1355-1356 (2007), cert. denied 128 S.Ct. 1890 (2008). Following the refusal to reasonably accommodate her disability, McGee was demoted, lost her medical insurance, and received a pay cut that resulted in a 50% loss of income. Id. at 1356. The court reasoned that the punitive damages were not excessive in light of defendants’ pattern of behavior and failure to accommodate McGee’s disability before demoting her. Id. at 1362.

Among other themes, McGee drives home the point that if reassignment is necessary, then the employee should be reassigned to a comparable position, when possible. See also, e.g., Pattison v. Meijer, Inc., 897 F. Supp. 1002, 1007 (W.D. Mich. 1995) (“the employer may reassign the employee to a lower graded and paid position [only] if it is not possible to accommodate the employee in the current position and if no comparable positions are vacant or soon to be vacant.”).

C. An Employee May Be Able to Perform the Essential Functions of a Position Even if a Modified Work Schedules or Time Off Must Be Provided.

Employers may sometimes argue that “full-time work” or attendance without additional days off is an “essential function” and that, if an employee cannot do these, he/she is not a Qualified Individual with a Disability, as required for protection under the California and federal anti-discrimination laws. This approach may be unsuccessful for an employer, if it cannot show that it would suffer an undue hardship with the needed accommodations.

In Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D. Cal. 1996), Magistrate Judge Wayne Brazil let stand a jury verdict of $300,000 in favor of a plaintiff whose requests for the reasonable accommodation of either a part-time or work-from-home schedule were denied. Id. at 1421-1422. The court analyzed the “essential functions” of her job, which predominantly included the administrative and clerical tasks of record-keeping and communication with corporate officers and merchandisers, as well as occasional field sales. Id. at 1427. The court concluded that a reasonable jury could find that the essential functions of the job were administrative and clerical. Id. at 1431. Consequently, a reasonable jury could have also found that “Norris’ array of medical problems—back pain, chronic fatigue syndrome, neck pain, irritable bowel disease, urinary incontinence, and stress—would have made it difficult for her to put in full days of work or to adhere strictly to a regular work schedule” and that she would have been reasonably accommodated by being permitted to work part-time and from home. Id. at 1431.

On the other hand, in Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1218 (2006), the plaintiff was a law enforcement officer who injured his knee and subsequently had difficulty running, jumping, kneeling, and lifting. Id. Significantly, the plaintiff conceded that these activities were essential to his position as a school patrol officer. Id. He was temporarily given an entirely different job at the department’s front desk, but when he was unable to return to his position, the defendant refused to extend the temporary position to a permanent one, and the plaintiff was terminated. Id. Because there was no reasonable accommodation which would allow the plaintiff in Raine to perform the essential job duties of his police officer position, and his temporary reassignment was much more than a modification of his original position, the Raine case is distinguishable from a case in which an employee has requested a mere schedule change.

As such, in general, a restriction on work hours does not affect an “essential function” of the employee’s position to the point that accommodating the employee’s disability would create a “new” job. If the employee is capable of performing all requisite job tasks, and the restriction is merely a matter of schedule, then the employer should provide the requested accommodation unless there is a demonstrated undue hardship. Employees should argue that work in excess of 40 hours is not a job function at all, for example, but a matter of time on duty and workload, which can be redistributed to other employees without undue hardship. Even if the number of hours on duty is viewed as a function, schedule requirements for employees’ positions may be viewed by a court as “marginal” rather than “essential” functions of a position. See 29 C.F.R. § 1630.2(n)(2)(ii).

D. An Employer Must Prove that Significant Difficulty or Expense Prevents it From Making a Time Off or Scheduling Adjustment Accommodation.

To avoid its obligation to provide a reasonable accommodation for an employee’s disability, an employer must establish that it would be an undue hardship to do so. 42 U.S.C. 12112(b)(5)(A); Cal. Gov. Code § 12940(m). See also Spitzer, 80 Cal. App. 4th at 1389-1390 (describing employers’ high burden of proof in this regard); Stoll v. The Hartford, 2006 WL 3955826, at *9 (S.D.Cal. Nov. 6, 2006) (“responsibility squarely lies with defendant to establish . . . there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation . . . .”) (internal citations omitted).

To prevail on an undue hardship argument, an employer must show that accommodating an employee’s disability would require significant difficulty or expense, when considered in light of factors including, among others: the nature and cost of the accommodation needed; the employer’s overall financial resources; the number of persons employed by the employer; the impact of such accommodation upon the operation of the employer’s facility; the number, type, and location of the employer’s facilities; and the employer’s types of operations, including the composition, structure, and functions of the employer’s workforce; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. 42 U.S.C. § 12111(10)(B); see also Cal. Code Regs. § 7293.9.

Generally, based on these guidelines, a Fortune 500 corporation with thousands of employees and a wide variety of employment opportunities will struggle to make a colorable argument that accommodating an employee’s disability would require significant difficulty and expense. Furthermore, an employer which has already allowed an employee to perform the essential functions of his/her job with a reduced schedule on a “temporary” basis will have difficulty showing an undue hardship, and is likely barred from asserting an undue hardship defense regarding an accommodation it already provided, which it is obligated to continue. See A.M., 2009 WL 2986423 at *6. Consider how offensive this discriminatory tactic would be, when applied to other types of accommodations, e.g., providing a person with quadriplegia with adaptive computer hardware, but labeling it “temporary” and then removing such hardware.

Yet, as to a time off accommodation, courts have not required employers to keep an employee on the rolls indefinitely who is unable to work. See, e.g., Green v. State, 42 Cal. 4th 254, 258 (2007) ("the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation."). See also Dudley v. California Dept. of Transp., 213 F.3d 641, at **2 (9th Cir. 2000) (unpublished) (citing Nowak v. Sf. Rita High School, 142 F.3d 999, 1004 (7th Cir.1998)) ("The ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him [or her] an indefinite leave of absence"); Norris, 948 F. Supp. at 1421 (argument that indefinite leave cannot be a reasonable accommodation is supported by case law); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226-227, (1999) ("Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.").

Employees should be specific in time off and reduced hours requests, to avoid the argument that the accommodation they seek would create an undue hardship, like an indefinite leave of absence.

If you are a disabled employee who has suffered an adverse employment action based on a request for time off or a modified work schedule, contact Bryan Schwartz today.

Disclaimer: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.

Wronged in the Workplace? Don’t Quit (if You Can Help It)!

Former JetBlue flight attendant Steven Slater has become something of a polarizing figure over the last few months—a folk hero to some,^[1]and a fraud to others.^[2] While working aboard a Pittsburg to JFK flight that had just landed, the JetBlue flight attendant lost his patience after reportedly enduring verbal abuse from a passenger. Slater made a grand exit by grabbing a beer in each hand, deploying the plane’s emergency slide, and broadcasting his resignation over the public address system. He then slid away, got in his car, and went home.^[3] Slater currently faces criminal charges for his actions. He is also reportedly in talks for a reality show in which he would “help other people quit their jobs in the most flamboyant way possible.” ^[4]

For those exasperated with their jobs, Slater’s story may be inspiring—he lived out a fantasy many have at one time or another during their working lives. Telling the boss what you really think of him or her and making a grand exit may sound like a satisfying finish to a frustrating job. However, from a legal perspective, this almost never benefits any potential employment claims you may have premised on wrongful termination. More often, it is likely to foreclose many claims that you would otherwise have been able to plead. Why is this? Simply put, you cannot challenge a termination, except in very limited circumstances, if you quit.

Employees can sometimes still claim wrongful termination if they quit under circumstances referred to as “constructive discharge.” To sustain a constructive discharge claim under California law, an employee must show:

1. The conditions or actions of the employer were so intolerable or aggravated that a reasonable person in her position would have resigned
2. The employer actually knew of the conditions, and
3. The employer could have remedied the situation but did not. ^[5]

Furthermore, a single or trivial incident of misconduct by an employer is not enough to establish a claim. ^[6] The California Supreme Court in Turner v. Anheuser-Busch emphasized that “[t]he conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” ^[7]

Though many workers may feel like their workplace is intolerable, the standard to show this in court is very high. Some examples of situations that have been found not to be constructive discharge include receiving a poor performance rating, accompanied by a demotion and reduction in pay; ^[8] reducing compensation and a changed annual bonus structure; ^[9] and, being sexually harassed by a supervisor, as long as the employer issues the supervisor a letter of reprimand. ^[10] Therefore, by and large, a constructive discharge claim is a loser.

A final consideration, if you are thinking of quitting your job, is that it can be far more difficult to receive unemployment insurance if you resign, depending on your situation. ^[11]

If you think your rights have been violated in the workplace, contact an attorney at Bryan Schwartz Law right away, before you make the decision to quit.

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[1] As an example, see Newsweek’s Seven Reasons We Love Steven Slater, available at http://www.newsweek.com/2010/08/16/7-reasons-we-love-steven-slater.html

[2] See, e.g., http://online.wsj.com/video/opinion-journal-hes-no-hero/DDE8C0DF-3CCF-471A-8B97-4D12028AEB21.html?KEYWORDS=steven+slater

[3] Note that his story has not been substantiated by subsequent investigations. See http://online.wsj.com/article/SB10001424052748703453804575480113748502880.html?KEYWORDS=steven+slater

[4] http://jobs.aol.com/articles/2010/08/17/jetblue-steven-slater-gets-reality-show/

[5] Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238

[6] Id.

[7] Turner, 7 Cal.4th at 1246 (emphasis added)

[8] Id. at 1247

[9] King v. AC & R Advertising (9th Cir. 1995) 65 F.3d 764, 767

[10] Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 110

[11] See California Employment Development Department website.

Get Paid What You are Owed!

You May Be Entitled to Recover Extra Money with California’s Split-Shift Premiums.

When an employer assigns you shifts in the morning and afternoon, with a large break in between, the employer is basically compromising your whole day, without paying you for it. Has your employer ever asked you to work a “split shift” like this? If so, you may be entitled to extra compensation under a sparsely-utilized provision found in most California Industrial Welfare Commission (“IWC”) Wage Orders.

A split shift is defined as a “work schedule, which is interrupted by non-paid, non-working periods established by the employer, other than bona fide meal or rest break periods.” Cal. Code Regs., tit. 8 §11010, subd. 2(M). For example, an hourly employee who has been assigned a morning shift from 8 a.m. to noon, plus an evening shift from 2 p.m. to 6 p.m., has been assigned to work a split shift, and is likely entitled to extra pay, assuming that the two-hour break between shifts is non-paid and non-working.

California frowns on employers assigning employees to work split shifts, which cause a major burden on employees and keep employers from having to hire more workers. However, many employers fail to pay the split-shift premium. We suspect this practice is rife in the promotional modeling (i.e., for promo models) and valet parking industries, for example.

Are You Entitled to a Split-Shift Premium?

The IWC has codified protections for employees who are scheduled to work split shifts in most industries. ^[1] Under most of the IWC’s Wage Orders, “[w]hen an employee works a split shift, one hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.” (e.g., Cal.Code Regs., tit.8 §11010, subd. 4(C).) This additional hour of wages granted to an employee for every day that s/he works a split shift is commonly known as a “split-shift premium.”

How Much Time Do You Have to Recover an Unpaid Premium?

California Courts have provided further guidance on the nature of these split-shift premiums and the duration of the statute of limitations that applies to these claims. In Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1111-12, the California Supreme Court explained that the purpose of the split-shift premium is to: 1) compensate employees; and 2) “‘encourage proper notice and scheduling… consistent with maximum hours and minimum pay requirements.’” Id. (citing California Manufacturers Assn. v. Industrial Welfare Com. (1980) 134 Cal.App.3d. 95, 112). The Murphy Court further clarified that “split-shift pay provisions do not become penalties for statute of limitations purposes simply because they seek to shape employer conduct in addition to compensating employees.” Murphy v. Kenneth Cole Productions, Inc. 40 Cal.4th at 1112 (citing Caliber Bodyworks Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 381). Because split-shift premiums have been interpreted to be wages owed to an employee (rather than penalties), and in light of California Business & Professions Code §17200, any employee who seeks to recover unpaid split-shift premiums has a four-year statute of limitations in which to do so.

How Can You Recover Unpaid Split-Shift Premiums?

Though not a heavily litigated area of wage and hour law, at least one court has provided guidance regarding how you can recover split-shift premiums. In Kamar v. Radioshack Corporation, et al. 2008 WL 2229166, *9 (C.D. Cal. May 15, 2008), a federal judge in Los Angeles, interpreting California law, held that split-shift premiums “are enforceable to the same extent as minimum wage and overtime requirements.” The Court further clarified that “section 1194 [of the Labor Code] should be construed to include premium wages created by the IWC to reinforce basic wage and hour standards, and it is likely that the California Supreme Court would see it that way.” Id. By classifying split-shift premiums as wages recoverable in the same way as minimum wage and overtime premiums under §1194 of the California Labor Code, the Kamar court extended a private right of action for individuals to sue their employers directly for these unpaid, split-shift premiums, as well as for applicable interest, attorneys’ fees, and costs of suit.

Other Considerations

If your employer makes you travel between locations during the time between assignments on a single day, without compensation for travel time and/or reimbursement for expenses, this is also improper. Are you assigned to work one location in the morning, or early afternoon, and another later in the evening, with a trek between locations (and probably no time for breaks or meals) in between? Do something about it!

You deserve to be paid extra if you are an hourly employee (i.e., non-exempt) and your employer assigns you to work non-traditional hours – that is, something other than a standard eight-hour shift (or nine hour shift, if you have an unpaid lunch hour). If you have been assigned to work a split shift, but have not been paid extra for it, please contact Bryan Schwartz Law today.

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[1] Certain on-site occupations in the construction, drilling, logging and mining industries and miscellaneous employees not covered by the first fifteen Wage Orders may not be entitled to the split-shift premium. To determine which Wage Order is applicable to your industry, please visit http://www.dir.ca.gov/iwc/wageorderindustries.htm

Getting the Bad Guys to Pay

How the California Supreme Court’s Martinez v. Combs Decision Might Affect Which “Employers” Can Be Liable Under the State’s Overtime Laws

Crafty employers have long sought clever ways of avoiding the broad protections the California Labor Code provides to workers with regard to minimum wage and overtime payment requirements. California, which has some of the nation’s most protective employee rights laws, has enacted minimum wage and overtime requirements through its system of Wage Orders issued through the Industrial Welfare Commission (IWC).

The minimum wage and overtime protections afforded to employees have long been limited to traditional “employer/employee” relationships. However, California’s law and courts have sometimes provided employees and their lawyers with muddied guidance as to the meaning of the critical term “employer.” Because of this, employers and individual managers have been able to avoid legal liability for violating minimum wage and overtime laws by setting up elaborate employment systems with third party contractors and other intermediaries acting as straw men and protecting the true employer. For example, garment workers have long worked for nearly insolvent subcontractors who are, for all intents and purposes, controlled by large corporations. The corporations dictate the terms of employment, the subcontractors pay the workers, and should the subcontractors violate wage and hour laws, they would incur liability leaving the large, solvent corporations off-the-hook. Such examples permeate many employment sectors in California, but particularly those with the lowest paid and most vulnerable workers. However, the California Supreme Court has recently taken steps to provide lawyers with guidance as to who may be considered an employer in the context of California wage and hour laws.

The court in Martinez v. Combs, 2010 WL 2000511 (Cal. S.Ct. May 20, 2010), faced the question of how to define which persons may be held liable as employers under California Labor Code Section 1194 (relating to payment of minimum wage and overtime compensation). Plaintiffs in Martinez were seasonal agricultural workers who sued their employer, two produce merchants with whom their employer contracted, and a field representative for one of the produce merchants, seeking to recover unpaid minimum wages. Though the Court found ultimately that the two produce merchants and the field representative were not the Plaintiffs’ employers, the Court broke new ground elaborating the definition of “employer” for the purposes of California wage and hour law. As the Court noted, this is an issue which has only been examined once since the Legislature created the IWC in 1913.

Here is what the Court held, and what it may mean to an employee:

The IWC Reigns Supreme

In a bow to the California Legislature’s intent, the Court held that “an examination of section 1194 in its full historical and statutory context shows unmistakably that the Legislature intended to defer to the IWC’s definitions of the employment relationship in actions under the statute.” Martinez at *16. The court thus acknowledged the IWC’s definition of “employer,” found within its various Wage Orders, to be dispositive in any dispute as to the presence of an employer/employee relationship.

The IWC defines an employer as: Any person who, directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.

The court further noted that within the context of this definition, the term “employ” carries significant legal meaning. As such, the court adopted the IWC’s definition of “employ” as: To engage, suffer, or permit to work.

By adopting these definitions, the court arguably broadened the scope of who can be deemed an “employer” under California wage and hour laws that had been defined by prior Supreme Court decisions, Reynolds v. Bement 36 Cal.4th 1075, Bradstreet v. Wong 161 Cal App.4th 1440 (holding that the common law definition of “employer” was controlling in California wage and hour cases thereby finding that individual corporate officers could not be held liable as employers), thereby arguably providing legal recourse to individuals in non-traditional employer/employee relationships.

In analyzing the significance of adopting the IWC’s definition of “employer” for the purposes of Labor Code Section 1194 lawsuits, the court noted that the “language consistently used by the IWC to define the employment relationship…was commonly understood to reach irregular working arrangements that fell outside the scope of the common law.” Martinez 2010 WL 2000511 at *17. Given this analysis, the court stepped away from prior holdings in Reynolds v. Bement and Bradstreet v. Wong by finding that the common law definition of “employer” was not controlling in Section 1194 cases. Instead, the court held that “the IWC’s definition of employment incorporates the common law definition as one alternative.” Martinez at *16.

To make sense of the potentially broadening effect of the Court’s analysis in Martinez v. Combs, let us examine the different scenarios where a party can be found to be an employer.

When an agent or person engages a person to work:

The definition of “engage” is rooted in the common law’s treatment of an employment relationship. The common law’s definition of an employment relationship was premised on a traditional master/servant relationship. However, the Court gave limited treatment of this term, only noting that “'to engage’ has no other apparent meaning in the present context than its plain, ordinary sense of ‘to employ,’ that is to create a common law employment relationship.” Martinez at *16.

When an agent or person suffers or permits a person to work:

A person suffers or permits an employee to work when he or she has the right to hire and fire the workers, the right to set the wages and hours of the workers, and tell the workers when and where to report to work. However, if a person does not have the power to stop an employee from working, he or she cannot suffer or permit a person to work. As the Court indicated, the basis of liability under the “suffer or permit to work” standard is “the defendant’s knowledge of and failure to prevent the work from occurring.” Martinez at *20. Consider a situation where you were hired and receive your paychecks from company X, but you work in a factory owned by company Y, are told when to work and how to complete your work by supervisors of company Y, and can be fired by the supervisors of company Y. Under the holding in Martinez, both company X and Y could be your employers and you would be entitled to sue both or either for any violations of California minimum wage and overtime laws.

When an agent or person has control over the wages, hours, or working conditions of a person:

This condition is related to that previously described under the “suffer or permit” standard. An individual or entity may be deemed your employer for the purposes of California wage and hour law if that individual or entity: controls the wages you earn, including but not limited to setting your wage rate and paying your checks; controls the hours you work; or controls your working conditions. Your working conditions are situations such as where you work and how you are to perform work. When an individual or entity controls any of these aspects of your work, he/she/it may be considered your employer.

Remnants of Reynolds

Though the court seemingly moved away from its prior decision in Reynolds by finding that the IWC’s definition of “employer,” as opposed to the common law’s definition, is controlling in Section 1194 wage and hour cases, the Supreme Court notably upheld the holding in Reynolds that “the IWC’s definition of ‘employer’ does not impose liability on individual corporate agents acting within the scope of their agency.” Martinez at *18. However, one can arguably read this holding to mean that the Supreme Court is attempting to limit the holding of Reynolds to its facts. In Reynolds, the Plaintiff, a “shop manager” for a chain automobile painting business, sued his corporation and individual shareholders and corporate officers for violations of Labor Code Section 1194. The court held that common law clearly establishes that “corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employee’s wages.” Reynolds 36 Cal.4th at 1087.

The Martinez court’s decision to uphold this vestige of Reynolds created an inconsistency left to be resolved by the Court in future decisions or by the Legislature through a clear statement of its intent. However, until that is done, we are left with mixed messages: the Court, through its adoption of the IWC’s definition of “employer,” held that an employer can be “any person,” yet on the other hand the Court, through its refusal to fully overturn Reynolds, held that the IWC’s definition of employer does not impose liability on individuals in their capacity as corporate agents.

What It All Means

The court explicitly opens the door to create liability in instances where multiple employers control various factors of an employee’s work. So for instance, if one company signs your paychecks and tells you where to work but another company determines your wages, retains the right to hire and fire you, and controls how you are to complete your work, the second company may now be considered an employer and be held liable for any violations of California wage and hour laws.

However, because the Court declined to completely overturn Reynolds, there is some uncertainty as to how future courts will decide cases where individuals, as well as corporate bodies, are defendants under wage and hour claims in California. Because the Court in Martinez was clear to hold that the critical elements necessary to find an employment relationship are the ability to supervise, hire and fire, set the wages, and control the working hours and conditions of the employee, plaintiffs’ attorneys have an opportunity to plead that such individuals who control these aspects of an employment relationship are indeed employers and hence liable.

Because employers often find ways to evade liability through new and creative employment structures, it is up to brave employees to challenge practices they deem unfair. Warning signs may include situations such as being hired and paid by one company but being directed at your worksite by agents of another company. By challenging such practices, employees can help further define this area of the law in light of Martinez v. Combs.

If you question why you are not receiving compensation to which you believe you are entitled, and you want advice from an attorney, please contact Bryan Schwartz.

What to Expect When You Contact a Workers’ Rights Lawyer and How to Put Your Best Case Forward

It is a big step to decide to seek legal assistance for your employment matter. Here at Bryan Schwartz Law, we have represented hundreds of people who have faced discrimination, harassment, wage theft, retaliation, and numerous other workplace wrongs. We understand that deciding to contact a lawyer can be daunting. We hope this blog post can help clarify the process and help you better understand what to expect when you contact a workers’ rights attorney.^[1] If you are considering contacting an attorney for help with your employment problem, here are some tips on how to present your best case and what to expect from the initial consultation process.^[2]

1. Be Prepared With a 3-D Presentation: Deadlines, Documents, and Dates

Telling your potential employment lawyers that you feel you were wrongfully terminated is not going to help him or her very much in deciding whether to take your case. Be prepared to flesh out the story of why you feel you were wronged with a 3-D presentation—Deadlines, Documents, and Dates. As a general practice at Bryan Schwartz Law, we ask all potential clients to initially provide us with a brief summary of the workplace issue they are contacting us about and for a detailed timeline of events. This information is meant to help us understand and evaluate your case as quickly as possible. We recognize that your employment matter is very important to you and that you need to receive information from us in a timely manner. If you are prepared from the beginning to provide us with your written summary and timeline, as well as documents related to your case, we can get back to you as quickly as possible. Below are a few more details about the 3-D Presentation.

Deadlines & Dates

Employment claims virtually always come with a filing deadline. Some deadlines can come very quickly, especially for federal and state employees. Therefore, it is extremely important for us to figure out what your deadlines are. If you call an attorney with a filing deadline in a week, you will have a difficult time finding representation. So that your potential attorney may analyze your pertinent deadlines, come prepared with your timeline and all dates concerning your case. Your timeline may be fairly basic, like the following hypothetical example:

Jan. 10, 2010 - Notified Manager X that I was pregnant

Jan. 15, 2010 - Received first ever negative performance evaluation

Jan. 30, 2010 - Notified HR Manager that I would request maternity leave in June

Feb. 5, 2010 - Notified that I was terminated because “my personal priorities were getting in the way of those of Company” and that my maternity leave would be a “drain on Company resources.”

March 1, 2010 - Found out from co-worker Doe that Company had hired a male in my former position

March 15, 2010 - Filed pregnancy and sex discrimination complaint with Department of Fair Employment and Housing (Cross-filed with EEOC)

Documents

The attorney you contact will most likely ask you early on for documents supporting your claims. Depending on the type of case that you have, examples of these types of documents could include: termination letters; disciplinary documents; administrative charge documents with, for example, the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission; paystubs; W-2s; and emails supporting your claims. When you are asked for documents, we suggest you go through your documents carefully and select only the documents you think are the most helpful to your case. If you submit hundreds of pages to your potential attorney and most of the pages do not help your case, it will take longer for the lawyer to evaluate the case. Furthermore, you may inadvertently send the message that you are not interested in putting a lot of effort into your own case. As with many things, a good rule to go by is quality, not quantity.

If possible, it is a great idea to be prepared with electronic scans (or extra copies) of the documents that you think support your case before you start contacting attorneys. It is also a good idea to prepare a summary and timeline in advance—your potential attorney will admire the fact that you are so prepared, and it might even help you to organize your thoughts and get a clearer picture of your case from the beginning.

Our friends at Workplace Fairness—a terrific website with many helpful articles about employment issues that affect workers—have a very helpful article about building the best case you can. In section 2 of the article, Workplace Fairness lists the types of documents you should gather in preparation for your case. This list is a great starting point, though some documents may not be available or necessary in your particular situation.

2. Be Patient (But a Little Persistence Doesn’t Hurt)

Please bear in mind that every firm that represents employees operates their intake process a little bit differently. Here at Bryan Schwartz Law, your case will be assessed by an attorney right from the start. Like many firms that represent workers, our firm is small. It is always of the utmost importance to us that you are treated with respect and that your case is evaluated in a timely manner. We understand how stressful it is to try to find an attorney, and we understand that you are eager to hear back from us. However, it is the nature of our work that we may have out-of-town travel, depositions, court dates, or brief filing deadlines that come up at any given time. Therefore, it may take us slightly more time to review your case during one of those weeks than it would during a week with fewer pressing deadlines, etc.

If you have contacted an attorney and have not heard back within a few days (or shorter if your matter is particularly urgent), you will not be faulted if you call to follow up. Bear in mind, however, that acting like too much of a “squeaky wheel” may not benefit your case in the end. Lawyers must assess whether your case would be a good “fit” for their firm, and if a potential client has unrealistic expectations, or is simply rude, this can be a red flag for the case down the road. Why? Lawyers are constantly thinking ahead—about things like, how would this person hold up if he or she had to testify on the stand? How would he or she do in a deposition? Will he or she cooperate in the litigation process even if it gets frustrating at times? Will he or she be reasonable in settlement negotiations?

On a related note, you should make sure to honor the commitments that you make to your potential attorney. For example, if you have not already provided documents to the firm, they will most likely request supporting documents for your case. If you say you will email documents by a certain date, hold yourself to that commitment. Just as it is the attorney’s responsibility to follow up with you, you have a responsibility to follow up with your potential attorney. If you have a delay in sending documents or otherwise responding, a short “heads-up” email will do the trick.

3. Be Ready to Listen

When we get a potential client call at Bryan Schwartz Law, it is always our goal to treat you with dignity and respect. It is also our job and our responsibility to candidly assess whether our firm will take your case. When you contact an attorney about your case, bear in mind that it is possible that the lawyer will tell you news that you will not like to hear. Employment cases often involve painful experiences and can bring up strong emotions. Remember that, unfortunately, there are many situations in which employees face treatment that is unfair, disrespectful, or even downright cruel, but that do not rise to the level of a legal violation.^[3]

Another part of our job is to assess your case for issues you may not have considered. Sometimes clients initially believe they have one kind of case, and end up hiring an attorney to represent them in entirely different employment matters of which they learn from counsel. It is an employment lawyer’s job to spot workplace violations, so don’t be surprised if the lawyer with whom you are speaking asks you a question that you may not have expected—e.g., you may come in thinking you have a discrimination case, and the attorney will ask if you were paid overtime.

We recommend against exaggerating about the strength of the merits of your case. Attorneys will see through such pronouncements, and they may even reflect poorly on your credibility. If your case truly is a “slam dunk,” let your documents show that. Clients who spend extensive time repeating that their case is a winner often do themselves a disservice.

4. What if the Firm Does Not Take Your Case?

Many considerations go into a law firm’s decision in whether to take a case—these reasons may have to do with the firm’s assessment of the merits of your case, or they may have to do with the firm’s workload, variety of cases at a given time, geographical considerations, conflicts of interest, or other factors. If your case is turned down, please do not be angry. Many winning cases have been turned down by multiple law firms before the clients have found the right fit. That being said, be willing to hear and understand vulnerabilities in your case if an attorney shares them with you. You may disagree, another lawyer may see the case differently, but we urge you to be realistic about your case. Employment cases are challenging to win, and you are not doing yourself a favor if you refuse to take a realistic look at yours. We wish you the best of luck in your case and commend your bravery for standing up for your rights.

If you feel you have been wronged in the workplace, contact Bryan Schwartz Law today.

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[1] Another helpful article on this topic can be found at Workplace Fairness: http://www.workplacefairness.org/takecase

[2] Please note that every firm handles potential client inquiries in its own way. If you are inquiring about a firm’s legal services and have questions about the process, it is always a good idea to ask them directly what you can expect.

[3] A prime example of this issue is the lack of protection for employees who are terminated in retaliation for taking bereavement leave for the death of a close loved one. Currently, the law affords no protection for this situation, though efforts continue to change this. See, e.g., Lange v. Showbiz Pizza Time, Inc. (D. Kan. 1998) 12 Fed.Supp.2d 1150, 1154-1155. AB 2340, a bill currently pending in the California Assembly, would provide up to three days of job-protected time off for bereavement of the loss of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner (available at: http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2301-2350/ab_2340_bill_20100506_amended_asm_v98.pdf), and our firm strongly supports this legislation. Governor Schwarzenegger vetoed a similar piece of legislation in 2007. (Veto statement available at: http://info.sen.ca.gov/pub/07-08/bill/sen/sb_0501-0550/sb_549_vt_20071013.html).

Bryan Schwartz Publishes Article With Settlement Guidance for Class Action Attorneys

Bryan Schwartz, along with collaborator Randall Crane, published: “How to win court approval for your class-action settlement – Learn to avoid delays that occur if the court rejects or requires modification of your settlement,” in Plaintiff magazine, the April 2010 edition, at pages 16-21.

Click on the following link to view the article:

Plantiff's Magazine

Court Approves Approximately $1 Million in Relief for Dozens of Misclassified Samsonite Store Managers in Bryan Schwartz Law’s Class Action Settlement

Wage/Hour Class and Collective Action Settlement Provides Back Wages, Penalties, and Interest

The U.S. District Court for the Northern District of California, Hon. Jeffrey S. White, granted final approval of a settlement agreement negotiated by Bryan Schwartz Law, in which more than 80 current and former Samsonite Store Managers collected approximately $1 million, pocketing on average nearly $8,300 each in back wages, interest, and penalties.

The case, Pearson, et al., v. Samsonite Company Stores, Inc., et al., Civ. No. 09-1263, was first filed just over a year ago, alleging that Samsonite’s retail and outlet stores in the United States improperly employed Store Managers without paying them overtime and other compensation to which they were due under federal law (the Fair Labor Standards Act), as well as the laws of California and New York. The suit contended that the employees were improperly classified as “exempt” from overtime based on being “executives,” but that they did not meet the tests for establishing this exemption under the federal and state laws.

During the course of the litigation of the case, the lead Defendant, Samsonite Company Stores, Inc., declared bankruptcy. Discovery also revealed that, although Samsonite continued to deny liability, many of the Store Managers were paid varying sums previously in a company settlement with the Bush Administration’s Department of Labor, or were paid amounts in company attempts to pursue waivers from individual members of the class before it was certified by the Court. Samsonite also reclassified all of its Store Managers as non-exempt and started paying them overtime. Moreover, the Ninth Circuit Court of Appeals, which oversees the United States District Court for the Northern District of California, along with at least one judge in the Northern District, recently issued decisions making class certification in wage/hour, misclassification cases much more difficult.

“Though we had a lot of obstacles, we were able to obtain an exceptional result for the class – after the Bush Administration investigated the matter but basically let the company off the hook,” said Bryan Schwartz, Plaintiffs’ class counsel, following the Court’s approval of the settlement. “The proof is in the pudding,” he continued, pointing out that a very high percentage, almost 90%, of the class members affirmatively filed claim forms, opting to accept the settlement, with “not a single class member rejecting the deal.”

Schwartz explained that, as a result of the case, the company has paid or will pay Store Managers $966,251.08, plus the employer’s share of payroll taxes on the back wages, minus appropriate attorneys’ fees and costs. “And, all Store Managers are now and will hereafter be paid overtime at Samsonite – something of which we are very proud.”

Rosalie “Lee” Pearson (a former Samsonite Store Manager in San Francisco) was one of two representative plaintiffs in the matter, who first brought the case to Schwartz’s attention. She reacted emotionally to the Court’s approval of the settlement, saying, “I am pleased that, because we stepped forward, no one else at this company will suffer like I did.” She concluded, “It just goes to show that sometimes our system of justice works – if you have the right attorneys on your side!”

Attorneys' Fees in Your Wage/Hour Class Action - Lawyers: You'd Better Be Ready to Justify Them!

You are an attorney and have just settled your wage/hour class action. Get ready to justify your fees, and make sure they are proportional both to the work expended and the benefits obtained for class members.

You should not assume that your court will agree that you are entitled to fees reflecting 40%, a third, or even 25% of the common fund in your wage/hour class action settlement. Of course, we believe that because we take the risk in wage/hour class litigation, we deserve a fair reward. This sometimes, particularly when there is an early resolution, would mean collecting a percentage of the common fund which results in a fee award many times larger than our lodestar fees tracked on a case. These big wins make up for cases where we have less success – working many hours for only a slim payout, no payout, or owing costs to a defendant at the end of the case. Yet, even in common fund cases, courts are looking critically at lodestar fees to determine the appropriateness of the multiplier that would result from using the common fund method, judged against the actual payout to the class members. Be ready!

The Ninth Circuit has long placed in its district courts’ discretion whether to use the common fund or lodestar method for calculating reasonable attorneys’ fees. See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). Regardless, the Ninth Circuit recommends checking the value of fees as a percentage of the common fund against what fees would be using the lodestar method, to ensure that the fees awarded are based on an appropriate (i.e., not too high) multiplier. Id. at 1047, 1050-1051; Glass v. UBS Financial Services, Inc., 331 Fed.Appx. 452, 456-457 (9th Cir. 2009). While the district courts are entitled to weigh results achieved for the class and favorable settlement timing in giving a large multiplier (id. at 457; see also generally Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26), after many years of seeing large wage/hour settlements, courts are becoming more reluctant to do so – i.e., having seen it all, they are less likely to be as impressed by your wage/hour settlement result than you might wish.

For example, in Tarlecki v. Bebe Stores, Inc., 2009 WL 1364340, **3-4 (N.D.Cal. May 14, 2009) (Patel, J.), Judge Patel reduced attorneys’ fees from the desired $290,000 award (a modest 21.3% of the common fund, and less than the attorneys’ lodestar of billed fees, of nearly $310,000) to $200,000, noting that the $290,000 sought would equal approximately 86.2% of the total actually recovered by the class in the claims-made settlement. 2009 WL 3720872, at *2. Judge Patel weighed the low response rate, the weak merits of the underlying case, and the rapidity with which the settlement was obtained in making a downward departure from the Ninth Circuit’s 25% benchmark for attorneys’ fees in a wage/hour class action, common fund case. Id. at *5. Judge Patel’s award was based on a finding regarding the “work that was actually done,” and a decision that “work in the amount of $200,000 is, or should have been, sufficient to accomplish what plaintiffs' counsel accomplished.” Id. at *5.

Judge Patel is not the only judge, when determining fee awards, willing to take a hard look at the work performed by plaintiffs’ counsel. Building upon (among others) the oft-cited decision in Lealao, 82 Cal.App.4th at 26, by Presiding Justice J. Anthony Kline of San Francisco’s 1st District Court of Appeal, California decisions (not necessarily in the wage/hour context) have suggested that your common fund fee award may be measured against the lodestar fees proven – and your lodestar award (in a case where there is no common fund established) may be measured against what it might be in a common fund case, i.e., as a reasonable percentage of the class recovery. See, e.g., In re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 512 (trial court properly cross-checked the common fund attorneys’ fees against lodestar fees and determined whether the common fund percentage sought was reasonable based upon the fairness of the would-be lodestar multiplier); Lealao, 82 Cal.App.4th at 45 (common fund method may be used to cross-check the lodestar against the value of the class recovery); Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 65 (same). See also generally, some examples of class cases in which the fees sought were substantially reduced, Chavez, 162 Cal.App.4th at 63-64 ($393,000 reduction in fees because document reviews by partners could have been done by associates or paralegals, excess time was spent responding to discovery, and court appearances did not need to be billed by two attorneys); EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770 (permissible to reduce $50,000 fee to $5,000 because action could have been resolved earlier, in court’s opinion).

Thus, though it is true that detailed time sheets are not required of class counsel to support fee awards in class action cases in California (e.g., Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254-255), as a plaintiffs' wage/hour class action lawyer, you will have much smoother sailing on fees if you are able to show that your lodestar is close to or exceeds what you hope to reap from attorneys fees in a common fund settlement. See, e.g., McPhail v. First Command Financial Planning, Inc., 2009 WL 839841, *8 (S.D. Cal. March 30, 2009) (“the proposed attorneys' fee award [in a common fund class action settlement] is less than Class Counsel's lodestar calculation, buttressing the Court's finding of reasonableness.”). In sum, be on notice: rather than rubber stamping your proposed fee award, the Court is likely to take seriously its obligation to “ensure that the fee awarded is within the range of fees freely negotiated in the legal marketplace in comparable litigation.” Lealao, 82 Cal.App.4th at 49-50.

State of the Union at Bryan Schwartz Law

A year ago today, I announced the opening of Bryan Schwartz Law. I directed people to my new website, www.BryanSchwartzLaw.com, and asked them to send their friends in need of employment advice my way. I asked my friends who are employment attorneys to send me any cases they were not going to handle, and to think of me if they had matters in which they needed co-counsel.

I am pleased and proud to say that Bryan Schwartz Law has been a great success though its first year in operation. Of approximately 350 potential cases that I have received, I have accepted about 35 of them, including several class and multi-plaintiff actions. I have settled or otherwise resolved favorably 11 cases, including a class action, resulting in well over $1.5 million in recovery for employees around the country. I have helped employees save their jobs, be compensated unpaid wages, obtain relief for discrimination they have suffered, and negotiate beneficial severance arrangements.

Some other highlights of Bryan Schwartz Law’s first year have included:

filing and settling a Federal District Court wage/hour class and collective action against Samsonite, resulting in nearly $1 million in relief for approximately 90 misclassified Store Managers across the country – an agreement which received the Court’s preliminary approval in December 2009, when the class was certified;

filing suit in California state court on behalf of a class of hundreds of parking attendants and other employees of Certified Parking Attendants, LLC, which engaged in flagrant violations of a host of state and federal wage and hour laws, utterly depriving its employees of overtime, meal/rest period premiums, and other compensation to which they were entitled;

filing suit in Federal District Court in Washington, DC, on behalf of 20 former executives of IndyMac Bank, who were not only laid off and deprived of all of the severance and bonus compensation to which they were entitled by their employment agreements, but from whom IndyMac Resources, Inc. (an IndyMac Bank subsidiary) is now trying to claw back compensation already paid;

defeating summary judgment in an individual age discrimination case in California state court after oral argument, at which I persuaded the court to reverse its tentative ruling granting partial summary judgment striking punitive damages claims;

appearing as amicus curiae (a friend of the Court) in the California Supreme Court on behalf of the California Employment Lawyers’ Association in the matter of Brinker v. Superior Court, S166350, one of the most significant employment cases pending in California, which will define the standard for meal/rest period compliance for all employers of hourly workers in the state;

hiring my first employees – Hillary Baker, an associate, who recently graduated from Hastings College of the Law and passed the California Bar, after working for several top plaintiffs’ employment law firms; Leslie Gordon, an intern for summer 2009, of the University of North Carolina; and Eric Barba, of the University of California Los Angeles law school, who will be a law clerk for summer 2010, who is a recipient of the California Employment Lawyers’ Association’s Diversity Fellowship;

being appointed to a prestigious post on the California Bar’s Labor and Employment Law Section Executive Committee, and to the Board of Directors of FAIR, the California Employment Lawyers Association’s non-profit foundation;

speaking at the State Bar Labor and Employment Law Section’s annual meeting, the Hastings Women’s Law Journal’s annual symposium, at a forum at UC Berkeley (Boalt Hall) School of Law sponsored by the California Employment Lawyers Association and Berkeley Journal of Employment and Labor Law, at the Employment Law Center, and at a meeting of SCORE (a partner of the U.S. Small Business Administration (SBA));

serving as Of Counsel to the firm of Hoffman & Lazear;

and

creating a successful employment law blog (bryanschwartzlaw.blogspot.com) and website (www.BryanSchwartzLaw.com), which both receive extensive Internet traffic.

My primary goal for the upcoming year is to continue attracting and accepting cases which help the individuals and groups of workers involved, and which have the potential to create a better legal climate for employees throughout the workforce.

I hope to win summary judgment in the matter of Ulloa v. United States Postal Service, on behalf of a disabled former Postal worker in Arizona, and to win class certification in the matter of Meyer v. United States Department of State, on behalf of all disabled/perceived as disabled Foreign Service Officer applicants nationwide. Both motions are fully briefed and pending decisions.

I hope to remain active in the California and National Employment Lawyers Associations and the California State Bar’s Labor and Employment Law Section, and will be speaking at seminars, conferences, conventions, and/or events sponsored by all of these organizations throughout the year.

I hope to finally post the Spanish translation of my website. I hope to continue: writing provocative blog postings and other articles in hot areas of employment law; providing a fulfilling and fun work environment for my employees; providing useful support in Hoffman & Lazear matters in which I can be of assistance; and, to continue supporting my family, which will be moving to a new home in Alameda, California.

Thank you for your support over the last year. Please, keep thinking of Bryan Schwartz Law if you or someone you know needs help with a workplace or civil rights issue.

All the best,

Bryan Schwartz