News & Analysis

Obtaining class certification difficult in overtime exemption cases

This class action case has been winding its way through the court system for 10 years. At one point in the litigation, the California Supreme Court issued a decision setting forth rigorous standards that employees must meet to obtain class certification when they allege their employer misclassified certain employees as exempt from overtime. One important takeaway from the supreme court's decision was that the use of the class action mechanism cannot deprive an employer of the right to prove that at least some employees were correctly classified as exempt and therefore wouldn't be entitled to damages. As the employees in this case have learned, because most misclassification cases involve questions about how employees actually spend their work time, it's often very difficult to rely on statistical sampling to prove a case is suitable for class treatment.

Maintaining compliant policies proves to be a powerful defense against class claims

A recent decision by the California Court of Appeal underscores the importance of maintaining and enforcing compliant wage and hour policies. Indeed, having the right policies in place may very well be an employer's most powerful weapon for defeating wage and hour class claims. One California employer's written wage and hour policies single-handedly defeated its employees' overreaching motion for class certification.

Pay stub headaches: Penalties for noncompliant wage statements can add up

Issuing inaccurate or incomplete itemized wage statements, also known as "pay stubs," can result in significant liability for employers. California law requires employers to provide specific information in pay stubs and imposes significant penalties on employers that fail to follow those requirements. The number of lawsuits based on noncompliant wage statements has dramatically increased recently because employees can easily file representative action lawsuits under the California Private Attorneys General Act (PAGA) for pay stub violations.

Claim goes awry for ex-employee who botched PAGA's notice requirements

Actions brought under the Private Attorneys General Act of 2004 (PAGA) are a bane to employers and their attorneys. The applicable statutory regime is replete with complex penalty and procedural rules, and the PAGA's provisions permitting "representative" actions sometimes seemingly permit employees to sidestep the legal controls that are typically meant to rein in improper class actions. This time, however, the PAGA's tedious "notice" requirements inured to the benefit of the employer when a former employee's notice was phrased in terms of his individual claim and failed to reference other potentially aggrieved employees.

9th Circuit sends beauty school students' claims back to salon

In a recent case, the U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers) rejected the test published by the U.S. Department of Labor (DOL) for determining whether interns are "employees" under the Fair Labor Standards Act (FLSA). Agreeing with other circuits that have considered the matter, the 9th Circuit panel decided that, in the context of student workers, the proper test is the "primary beneficiary" analysis. Under that test, the beauty school students in question weren't employees protected by federal or state wage and hour laws.

Employer's failure to engage in interactive process justified jury verdict

An employer discharged a disabled employee at the conclusion of her workers' compensation claim. The employer argued there were no available reasonable accommodations for the employee. The 9th Circuit recently disagreed and upheld the jury's verdict in the employee's favor.

Who, what, wear: You can enforce a dress code!

Employers have the legal right to establish dress and grooming policies for their employees as long as the policy is not discriminatory. A dress code can be considered discriminatory if it treats employees in a protected class (based on gender, race, disability, religion) differently or if it has a disproportionate impact on a protected class. But even if your dress code isn't discriminatory, you may still be required to make exceptions to accommodate an employee's disability or religious beliefs.

Employers ditching annual reviews for more frequent feedback

There seems to be a shift in the way employers evaluate workers. A number of large companies (for example, Microsoft, Dell, and Gap) have recently nixed annual review systems in favor of more frequent forms of feedback on employees' performance.

A workforce surrounded by pot

For the past month, recreational pot use by adults has been legal in California. As local regulations are put into place, more and more dispensaries are popping up, and locations will keep burgeoning for a while. How will this affect your workplace?

2018 flu outbreak: Can we require employees to get a flu shot?

Anchorage started the new year with what feels like a flu epidemic. In the United States, up to 20 percent of the population may contract the flu in any given year, and flu-related absenteeism accounts for more than 100 million lost workdays per year. In turn, that costs American businesses more than $10 billion in lost productivity each year.