Thursday, August 30, 2012

Patelco Sued by Misclassified Branch Assistant Managers for Unpaid Wages: Trend of Class Actions Seeking Wages to Continue Post-Brinker, Says Bryan Schwartz

A class action lawsuit that Bryan Schwartz Law filed on Wednesday accuses Pleasanton-based Patelco Credit Union (“Patelco”) of misclassifying dozens of Branch Assistant Managers as exempt employees, and failing to pay workers for overtime and missed meal and rest breaks. Yuliya Clarke, a Martinez resident, filed the case in Alameda County Superior Court.

Patelco, which advertises approximately forty branches locally and assets of over $3.6 billion, classifies Branch Assistant Managers as “exempt.” Yet, Branch Assistant Managers spend the majority of their working time on non-supervisory duties, according to this suit, including day-to-day customer service, opening new accounts, and opening auto loans. If such activities comprise the majority of Branch Assistant Managers’ duties, such would place them well outside the narrow “executive” and “administrative” exemptions to California’s overtime laws.

Clarke, the Plaintiff, alleges that she and the other Branch Assistant Managers routinely worked long hours without receiving any overtime pay. Moreover, Branch Assistant Managers missed their meal and rest breaks and were never paid premiums. In addition, the suit alleges the employees were deprived of itemized wage statements as required by California law, and that the company owes state law penalties.

California’s Supreme Court clarified the state’s wage and hour laws in the Brinker Restaurant Corp. v. Superior Court case, published this April, which many employers had hoped would stem the tide of wage and hour class actions against them, particularly alleging meal and rest period violations. Not according to Clarke’s lawyer, Bryan Schwartz, whose Oakland-based firm litigates many such cases on behalf of workers.

 “Patelco is the latest in a long line of employers to misclassify assistant branch managers as exempt,” said Schwartz, discussing this suit. Such employers as Enterprise Rent-A-Car, Rite-Aid, Diesel clothing stores, Modell’s Sporting Goods, and Family Dollar, along with financial institutions like Patelco – including Citizens Bank and Charter One Bank – have all confronted misclassification suits brought by assistant branch managers and other mid-level managers or small-store branch managers. “It seems that – as with so many other employers – Patelco needs a lawsuit to change its practices and begin paying its assistants the overtime and meal and rest period premiums to which they are entitled under California law,” Schwartz stated.

The lawsuit against Patelco resembles multiple prior cases handled by Bryan Schwartz Law. In Pearson, et al. v. Samsonite Company Stores, Inc.,et al., the firm successfully negotiated a class and collective action settlement in which dozens of Samsonite Store Managers operating small retail locations nationwide received approximately $1 million (nearly $8,300/each) for alleged overtime and other wage and hour violations. In addition to the monetary relief, Samsonite also reclassified its Store Managers as “non-exempt” so the managers would be entitled to overtime in the future. Most recently, on July 18, 2012, in Sanchez v. Sephora, the United States District Court in Northern California granted a motion for conditional class certification of overtime claims involving a nationwide class of “Specialists” – also mid-level, small store managers - represented by Bryan Schwartz Law against the beauty supply retailer.

 “I am eager to help my fellow Branch Assistant Managers recover the unpaid wages we are entitled to, under California law,” said the ex-employee Ms. Clarke about her case. “Hopefully, the credit union will do the right thing quickly here, for the sake of not only its employees but its members,” she said. The case is Yuliya Clarke v. Patelco Credit Union, Alameda County Superior Court Case Number 12645805.

Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Bryan Schwartz Law has successfully litigated individual, class, and collective action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers. For more information, check out Bryan Schwartz Law’s website.

Patelco employees or former employees who would like to learn more about the case should contact Bryan Schwartz at (510) 444-9300,

Tuesday, August 28, 2012

Turning Back Another Retaliatory Employment Defense Tactic: Quashing Current Employer Subpoenas

Bryan Schwartz Law largely represents employees against their current and former employers – mostly, against their former employers. Few workers are brave enough to sue the entity that pays them every two weeks. Then, sometimes employers are stupid enough to fire employees who have just sued them – and thus incur the likelihood of additional retaliation claims. After employees have moved on – by choice or not – and begin working elsewhere, employers sometimes become curious during the discovery process about how those employees are faring. Some employers are so bold (or foolish, depending on your perspective) as to issue subpoenas to workers’ new employers for testimony and/or records. Sometimes it is an ill-conceived fishing expedition for something, anything to use against an employee. Some former employers seek evidence concerning employees’ post-termination income which might offset liability or support a mitigation defense. Often, ex-employers angered by litigation want to put “the fear of G-d” into employees suing them by trying to show that they can make those employees live in fear and with the taint of litigiousness – even while the workers are trying to start with a clean slate at a new employer. Mostly, such former employer tactics should and do fail.

In California, under Parker v. Twentieth Century-Fox Film Corporation (1970) 3 Cal.3d 176, the measure of recovery by a wrongfully discharged employee is “the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” 3 Cal.3d at 181. However, under the Parker rule, though some discovery may be warranted from an employment plaintiff into income earned or efforts made to secure alternative employment, California law does not support discovery from a third-party witness (e.g., subsequent employer) to assist an employer with its mitigation defense.

Because an individual’s employment records (personnel file, income data, etc.), are private, and California has robust protections for individuals’ privacy, employment defendants must show that they have no less intrusive means of obtaining this information, before they might have any viable argument for enforcing a third-party subpoena of a subsequent employer. See El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346 (refusing to order disclosure of employee personnel file where the relevant information could be obtained through “less intrusive means, such as deposing”); Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1853-54 (1994) (constitutionally protected private information is not discoverable unless the party seeking discovery can demonstrate a “compelling need . . . so strong as to outweigh the privacy right when these two competing interests are carefully balanced”). See also TBG Ins. Services Corp v. Superior Court (2002) 96 Cal.App.4th 443, 449 (employee's personal financial information stored on computer owned by employer); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 (information in personnel file of trolley driver regarding his driving history and his mental capabilities at the time of accident in which the plaintiff was injured); Harris v. Superior Court (1992) 3 Cal.App.4th 661, 664 (tax returns and other personal financial information); Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 315 (information about individual's salary and fees). Moreover, “where it is argued that a party waives protection by filing a lawsuit, the court must construe the concept of ‘waiver’ narrowly.” See Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387.

The court may quash a subpoena and issue a protective order to protect a witness or party from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Cal Civ. Code. Proc. § 1987.1. A subpoena of a subsequent employer may well be unreasonable and oppressive in that: (1) violates an ex-employee’s right to privacy in his/her personnel records at a current employer; (2) seeks to annoy a third party regarding information readily obtainable from the ex-employee, who is a party; and (3) is almost invariably overbroad, seeking information that is irrelevant to the action before the court and not reasonably calculated to the discovery of admissible evidence.

Though California courts do not appear to have spoken to this precise issue in published opinions quashing subpoenas of subsequent employers of employment litigation plaintiffs, several federal courts have addressed the issue. Those thoughtfully considering the public policy implications have tended to quash subpoenas of records or testimony from subsequent employers. See, e.g., Graham v. Casey’s Gen. Stores, 206 F.R.D. 251 (S.D. Ind. 2002) (ex-employee asserting statutorily-protected claims should not be subject to discovery from a new, current employer, which might tend to harass and intimidate employee from pursuing his rights); Warnke v. CVS Corp., 265 F.R.D. 64 (E.D.N.Y Feb. 24, 2010) (granting a motion to quash subpoenas duces tecum served by defendant on plaintiff's three subsequent employers, to protect “innocent discriminatee” from “the direct negative effect that disclosures of disputes with past employers can have on present employment”); Cannata v. Wyndham Worldwide Corporation, 2011 WL 3794254 (D.Nev. Aug. 25, 2011) (quashing subpoenas for records from subsequent employers of the plaintiff asserting statutory claims, rejecting employer’s “shotgun approach” to discovery).

Among other arguments, plaintiffs and their advocates should fight hard to quash subpoenas of subsequent employers by emphasizing the important public policy objectives under the Fair Labor Standards Act and California Labor Code are only vindicated if workers are not in fear of economic retaliation. See, e.g., Kasten v. Saint-Gobain Perf. Plastics Corp., __ U.S. __, 131 S.Ct. 1325, 1333, 179 L.Ed.2d 379 (2011); Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Williamson v. General Dynamics Corp., 208 F.3d 1144, 1150 (9th Cir. 2000); Gentry v. Superior Court (2007) 42 Ca1.4th 443, 459-461 (2007). California courts should explicitly follow those federal district courts that have held against employers trying blackball employees in the workforce, when ex-employers try to stigmatize them not only at the employer which was sued, but at subsequent employers, through the use of abusive discovery tactics. Courts should quash subpoenas for records and testimony from subsequent employers.

Contact Bryan Schwartz Law today if your ex-employer is trying to retaliate against you for bringing protected claims against it.