Agreeing to a settlement doesn’t mean it’s over.
DHL Express Inc. has agreed to settle a putative wage-and-hour class action brought in California federal court by former employees.
Although DHL has agreed this week on the settlement, the case is not actually closed.
Once the parties agree to a settlement, the Court needs to approve it. The process is generally a motion for preliminary approval, where we explain the terms of the settlement to the Court, preliminary approval (or disapproval) by the Court, notice to the class about the terms of the settlement with an opportunity to object or opt out, motion for final approval and final approval (or disapproval) by the Court.
It can take quite awhile for the entire process, much more cumbersome than a conventional individual case.
More on Class Actions: 5 Tips for Understanding Class Actions
Justice for Common Working Folks
A case in Florida is a classic example of protecting the powerful from regular people.
In Roberts v. Angelfish Swim School, Inc., the defendant, the interim secretary of state is arguing that to take part in a class action lawsuit, a potential class member must prove that he or she can individually fund the entire litigation for the entire class.
In our wage and hour class actions, we regularly represent common working folks who have been shorted on their pay. We invest ten of thousands, sometimes hundreds of thousands of dollars in hard costs for experts, document copying, etc., plus attorney and staff time that can easily run into the millions. When we prevail, large groups of employees receive back pay or other compensation and we earn a fair fee. A working class plaintiff, for that matter, anyone outside of the moneyed class, simply can’t shoulder the burden. It’s hard enough for us lawyers, not too many of us can take on the risk of these cases.
Class Cert. Denied In Lockheed OT Suit
Last week a California federal judge shot down a motion for class certification in an overtime suit against Lockheed Martin Corp., saying that the proposed class of industrial security representatives was too diverse in their actual duties to be certified.
Judge Michael M. Anello wrote the order denying class certification. He based his decision primarily on the plaintiffs’ inability to meet the FRCP Rule 23(b) requirement that common issues predominate.
Basically, plaintiffs argued all putative class members were public safety employees who were entitled to overtime. Judge Anello wasn’t convinced. He found that the plaintiffs hadn’t put on evidence that all the putative class members were engaged in the same type of work. He then focused on defendant’s argument that each putative class member had different job duties depending on which project they were assigned to in denying certification.
The lesson is, do your discovery on Rule 23 criteria early and thoroughly. Plaintiffs have the burden and, if you forget that fact, the judge will happily remind you.
A Class Act
One of the reasons I enjoy class actions and complex litigation is they force you to be disciplined. Take the simple task of organizing and interviewing percipient witnesses.
In individual cases, you have a list of witnesses, you interview or depose them as seems appropriate and it’s pretty much a simple process. In class actions, you need a system or things can get out of hand pretty quick.
One of my favorite parts of prosecuting a class action is getting a contact list for the potential (we call them “putative”) class members and conducting the initial interviews that tell me just what it is that I have on my plate.
Getting the list isn’t always a simple deal. In the wage and hour cases I’ve litigating during the past several years, I’ve seen both
extremes. Sometimes the defense will give up the list almost upon request. Usually this means they are feeling pretty good about their prospects. Sometimes, the defense fights tooth and nail, withholding the list until ordered by the court. Usually this means they are feeling insecure and then prepare for a bloody discovery battle.
We generally ask for a class list as soon as discovery opens and we ask in at least three different ways, which is further explained in this article on my website.
Due Process
Labor Code Section 203 provides a waiting time penalty that is consistent with constitutional due process.
State Farm v. Campbell (2003) 538 U.S. 408 concerns constitutional due process limits on punitive damages, not civil penalties. As the Supreme Court notes, one prong of its test in BMW of North America, Inc. v. Gore (1996) 517 U.S. 559 (which refused to sustain a $2 million punitive damages award accompanying $4,000 in compensatory damages) is “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” The evil Campbell sought to remedy was the risk of an excessive punitive award imposed by a lay jury. “We have admonished that ‘[p]unitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant’s net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences.”
The law does not view wage penalties as implicating property rights, which puts the 203 penalty outside of Campbell right at the start.
“A statute entitled ‘An act to provide for the protection of servants and employees of railroads,’ relating to the payment of unpaid wages without abatement or deduction on discharge of an employe[e], does not amount to deprivation of property, as the act is purely prospective in its operation. It does not interfere with vested rights, existing contracts, or destroy, or sensibly encroach upon, the right to contract, although it imposes a duty in reference to the payment of wages actually earned, which restricts future contracts in the particular named.” [Citation omitted.]
Moore v. Indian Spring Channel Gold Mining Co. (1918) 37 Cal.App. 370, 378 (quoting St. Louis, etc., R.R. Co. v. Paul, 173 U.S. 409).
When the section 203 penalty scheme withstood a constitutional due process challenge early in the last century in Moore v. Indian Sprint Channel Gold Mining Co. (1918) 37 Cal.App. 370, the remedial purpose of the penalty was highlighted in the decision. After a penal statute imposing misdemeanor liability and a fine not to exceed five hundred dollars was ruled unconstitutional (Matter of Crane, 26 Cal.App. 22), the legislature changed the law to impose a penalty based on wages with a thirty day limit.
Appellant expresses difficulty in discovering any material distinction between the two acts. In the act of 1911, continues the brief, the penalty is nothing more nor less than a fine not exceeding five hundred dollars; while in the amendment of 1915 the penalty is in effect a fine not exceeding thirty times the servant’s daily wage.” It seems to us that the distinction is obvious in this: The act of 1911 declares that a violation of its provisions is a crime for which the violator is answerable to the state, while by the amendment he must compensate the wage-earner by way of penalty.”
Moore at 373-374. The court of appeal compared the penalty to other statutes, such as Code of Civil Procedure sections 732, 733 and 735 which impose treble damages on tenants who commit waste, cut down trees or forcibly detain property. “The constitutionality of these sections is not questioned. They are held not to be penal, but remedial.” Id. at 375.
The Court of Appeal distinguished between remedial civil penalties and punitive damages in Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, and held that a government entity is not immune from civil penalties imposed by the Unruh Civil Rights Act (Civil Code section 52 et seq.) under Government Code section 818, which bars imposing punitive damages against public entities. “[A] number of courts have concluded that to be condemned as punitive, a penalty, generally speaking, must simply and solely serve that purpose.” Id. at 272 “It is apparent from this legislative history that section 52 has at least two important non-punitive purposes. The first is simply to provide increased compensation to the plaintiff. The second purpose, and perhaps the most important one, is to encourage private parties to seek redress through the civil justice system by making it more economically attractive for them to sue. . . . If not for the civil penalty, many such litigants would neither have the economic incentive nor the means to retain counsel to pursue perpetrators under the statute.” Id. at 271-272.
Moore notes that the 203 penalty has a similar purpose. “There has been a pronounced tendency in state and national legislation for many years, not only to ameliorate the working conditions of the wage earner, but to safeguard him in his relations to his employer in respect of hours of labor and the compensation to be paid for his labor. . . the public safety and welfare demand . . . laws which are designed to secure [for labor] a reasonable wage, [and] to provid, where practicable, for the enforcement of payment by way of liens on the product of his labor . . . The intention of the penalty imposed by the act in question is to make it to the interest of the employer to keep faith with [its] employees and thus avoid injury to them and possible injury to the public at large.” Id. at 381-382.
Note: Moore repeatedly refers to the wage and labor laws under discussion as applicable to a class, e.g., “The act refers to all wage-earners, designated as employees, as the class referred to, and it unquestionably applies equally to all of the class.” Id. at 379.
Your rights as an employee in California
Obviously your job is important to you. It feeds your family. Pays the rent. Helps educate your children.
You work hard for your employer. You show up on time and stay late when needed. You do your best to succeed.
Though you have to meet the requirements expected at work, you also have certain rights under the law as an employee.
For example, generally speaking, you employer has to pay you the minimum wage. Most hourly employees are also entitled to regular breaks, overtime pay, worker’s compensation insurance, unemployment insurance and unpaid time off for serious illness or a new baby.
Sexual harassment in the workplace is generally prohibited, as is discrimination based on certain characteristics such as gender, race, national origin or religion. If you suffer from a disability, your employer may be required to accommodate you by making changes in the workplace so your can perform the essential functions of your job position.
Sometimes a situation at work will seem unfair or even intolerable. When it does, it is best not to suffer in silence. Let your supervisor know that there is a problem, or if appropriate, consult with human resources. Most workplace problems can be resolved informally when there is communication. You may be surprised with the result!
If your employer is unwilling to help you solve your workplace problem, there may be other solutions. The California Department of Industrial Relations can help you understand your rights and provides services for employees in the state. There are low-income clinics and workshops aimed to assist California workers, you can find references to them on the internet.
Of course, if you have a serious employment problem, whether its wage and hour, wrongful termination or discrimination, Bill Daniels | Law Offices is on your side.
In California, accrued vacation pay is due on termination from employment under wage and hour law
Labor Code section 227.3 provides employees with a right to vacation pay upon termination of employment when vacation is offered in an employer’s policy or contract, according to the Division of Labor Standards Enforcement policy manual.
The leading California case, according to the manual, is Suastez v. Plastic Dress-up Co. (1982) 31 Cal.3d 774. According to the DLSE manual, vacation entitlements constitute deferred wages which vest as they are earned, so any entitlement to vacation is a proportionate right and vests as labor is rendered.
Vacation pay cannot be forfeited under a so-called “use it or lose it” policy. Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601. However, a cap may be placed on the amount of vacation that may accrue if not taken under certain circumstances. Henry v. Amrol (1990) 222 Cal.App.3d Supp. 1.
The bottom line, sometimes it pays to check with a knowledgeable employment attorney to make sure your pay is in line with the law.
