In a wage and hour class action, where a corporation with no employees owns a corporation with employees, and the former exercises some control over the latter and its employees, may the former be an “employer” of the latter’s employees?

Posted by Steven Vartabedian on

The answer: yes, as stated in the very first paragraph of Castaneda v. Ensign Group, Inc. (filed 9/15/14) B249119, following rehearing.  There, the Court of Appeal, Second Appellate District, Division Six, reversed the summary judgment that had been granted dismissing Ensign from the action. Castaneda filed a class action on behalf of himself and other […]

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May an employer attribute commission wages to a different pay period than when paid to satisfy state’s compensation requirements?

Posted by Steven Vartabedian on

The fact that commissions earned by employees can both be delayed in payment and distributed in uneven increments creates some challenges. Under Federal law, an employer may attribute commissions to when they are earned (rather than when paid), or to other pay periods, so long as an employee is paid minimum wage in each pay […]

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Cal Supreme Court: Arbitration agreement waiver of right to class procedure approved; but right to bring PAGA representative action cannot be waived.

Posted by Steven Vartabedian on

In Iskanian v. CLS Transportation Los Angeles, LLC (filed 6/23/14) S20432, the California Supreme Court majority has delivered a split decision on the question of whether an arbitration agreement that waives a party’s right to bring a representative action on behalf of others is enforceable. Representative actions in the form of class actions brought to […]

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Must a wage-and-hour misclassification class action judgment be reversed because the trial court denied defendant employer the opportunity to impeach plaintiffs’ statistical model where the sampling belied consistency in class member work habits?

Posted by Steven Vartabedian on

In the much-awaited California Supreme Court opinion of Duran v. U.S. Bank National Association (filed 5/29/14) S200923, the state high court answered affirmatively, reversing the judgment. There, loan officers sued for unpaid overtime, claiming they had been misclassified as exempt employees under the outside salesperson exemption, exempting from overtime pay entitlement employees who spend more […]

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Employees Decline Available Family And Medical Leave At Their Own Risk – Court Ruling Requires Employee To Affirmatively Request

Posted by Jeffrey Davis on

It comes as no surprise that federal and state medical leave statutes authorize eligible employees to take time off to care for ailing family members.  Moreover, under both the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) (collectively “family-medical leave”), employees are not required to expressly mention the FMLA […]

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Does order for a medical reevaluation of an employee after she has returned to work following Family Medical Leave Act leave violate her FMLA rights?

Posted by Steven Vartabedian on

In White v. County of Los Angeles (filed 4/15/14) 2014 DJDAR 4726, White took FMLA leave from her position of district attorney’s office investigator as a result of emotional/medication difficulties she experienced. Her psychiatrist certified her condition, which was expected to hospitalize her for 2 weeks, followed by 2 weeks of outpatient care plus possibly […]

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May an adhesive, yet bilateral, employment arbitration clause that is not unduly harsh, oppressive or one-sided be found unconscionable and unenforceable?

Posted by Steven Vartabedian on

In Sanchez v. CarMax Auto Superstores California, LLC (filed 2/6/14, publication ordered 3/4/14) B244772, plaintiff signed an arbitration agreement as a part of his employment application. He was hired as service manager and remained in that position until he was terminated about 4½ years later. In his lawsuit, plaintiff claimed the reason cited for his […]

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Employer Sued for Relying on Non-Criminal Information Disclosed by Criminal Background Database

Posted by Jeffrey Davis on

As previously reported, California recently enacted new prohibitions affecting employers conducting pre-hiring background investigations. Prior to January 1, 2014, Labor Code section 432.7 only prohibited employers from considering, or asking applicants about, information concerning: (1) arrests or detentions not leading to conviction; or (2) referral to, or participation in, a pretrial or post-trial diversion program. […]

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Is employee’s verdict finding employer retaliated in violation of public policy in terminating him reversible and subject to retrial based on jury’s instruction that retaliation was “a motivating reason” rather than “a substantial motivating reason?”

Posted by Steven Vartabedian on

In Mendoza v. Western Medical Center Santa Ana (filed 1/14/14) G047394, plaintiff served as a staff nurse at defendants’ hospital for more than 20 years. At times, he was supervised by fellow employee Del Erdmann, a per diem house supervisor since April 2010. Both men are gay. Mendoza complained to defendant’s human resource department that […]

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Can allegation of employer’s failure to reimburse for extensive vehicle use support constructive discharge or emotional distress claims?

Posted by Steven Vartabedian on

In Vasquez v. Franklin Management Real Estate Fund, Inc. (pub. ordered 12/31/13) B245735, the Court of Appeal, Second Appellate District, Division Four, answered “yes” to the constructive discharge claim, and “no” to the emotional distress claim. Defendant employed plaintiff as a maintenance technician at $10 per hour for a 40-hour week. Plaintiff’s duties included driving […]

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