Wal-Mart Stores v. Dukes set for oral argument before Supreme Court

The Unites States Supreme Court moves right along once it grants a writ of certiorari.  Wal-Mart Stores v. Dukes has been set for oral argument on Tuesday, March 29, 2011.  We won't have to wait that long before (potentially) receiving some guidance from the current Supreme Court about class action standards.  The only uncertainty is whether the Court will limit its analysis to sex discrimination cases or offer more widely applicable guidelines.

Thanks to SCOTUSblog for the argument schedule.

Legislature was constitutionally authorized to vest in IWC the power to impose minimum wage law requirements on public school districts

Plaintiff James Sheppard was a part-time instructor employed by defendant North Orange County Regional Occupational Program ("NOCROP").   NOCROP was created by four public school districts NOCROP is a regional occupational program established by one or more public school districts under Education Code section 52301.   During his employment, Sheppard was required to spend 20 minutes of unpaid time preparing for every hour he spent teaching. Sheppard sued NOCROP and sought compensation for his unpaid preparation time by asserting claims for violation of the minimum wage law, pursuant to the Industrial Welfare Commission's (IWC) wage order No. 4-2001 (Wage Order No. 4-2001) and Labor Code section 218, breach of contract, and quantum meruit.  To summarize a somewhat more complicated procedural history, the trial court effectively granted a motion for judgment on the pleadings, finding that neither "the wage order relied upon by the Plaintiff nor the implementing Labor Code sections expressly, or by necessary implication, obligate Defendant to pay Plaintiff hourly wages for  'preparation time' beyond the hourly wages mandated by Education Code section 45025."

In Sheppard v. North Orange County Regional Occupational Program (December 23, 2010), the Court of Appeal (Fourth Appellate District, Division Three) held that "(1) by its terms, the minimum wage provision contained in Wage Order No. 4-2001 applies to Sheppard‟s employment with NOCROP; (2) the Legislature authorized the IWC to so extend the application of the minimum wage law to apply to certain public employees; and (3) the Legislature has plenary authority over public school districts in California and was not otherwise barred by the state Constitution from requiring school districts to comply with the minimum wage provision of Wage Order No. 4-2001."  Slip op., at 9.

The Court began its analysis by interpreting Wage Order 4-2001 and Labor Code section 1173.  The Court examined the sovereign powers immunity and the broad reach of employment statutes and regulations.  The Court then read Wage Order 4-2001 to impose, in clear terms, the minimum wage requirements to employees of the State or any political subdivision of the State.  Next, the Court rejected NOCROP's argument that the IWC exceeded its authority when it issues a Wage Order purporting to regulate public employees.  The Court concluded that the IWC was authorized to do so by the Legislature, which itself assumed that it had conferred such power on the IWC when it enacted Labor Code section 512.5 in 2003.

Looks like part time instructors stand to recover a good deal of unpaid wages for their uncompensated preparation time.

Merry Christmas 2010 from The Complex Litigator

Second Court of Appeal holds that PAGA penalties are available for certain wage order violations

In Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010), on an issue of first impression, the Court of Appeal (Second Appellate District, Division Five) held that (1) violations of Wage Order No. 7, subdivision 14 are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available despite the fact that Commission wage order No. 7-2001 has its own general penalty provision.  (Discussed on this blog, in a very serious post, here.)  In other words, PAGA penalties are available for wage order violations, at least as far as the adequate seating requirement is concerned.  But when a Court of Appeal tackles a question of first impression, you always have to wonder whether that holdling to stand up over time.  Today, in Home Depot U.S.A., Inc. v. Superior Court (December 22, 2010), the Court of Appeal (Second Appellate District, Division Four) agreed with their fellow justices from Division Five and held that (1) violations of a Wage Order are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available unless some other penalty is specifically provided for in the Wage Order.

At this point, the best business opportunity in California would be small footprint stools that can fit behind registers at retail stores.

Finally a legal blog that isn't a snooze-fest: Law and the Multiverse

It has been some time since I last mentioned a new legal blog.  I think that's mostly because I tend to black out while reading about legal topics, awakening later with a keyboard imprint on my forehead and no recollection of what happened.  Luckily, I found one that is unusual enough that I made it through several posts still coherent enough to write about it.

Law and the Multiverse tackles the topics nobody else would, like how to insure against destruction by supervillians, whether RICO can be used against the Legion of Doom, and what happens when a murder victim comes back to life.

Thanks to Mike Braun for the tip to the New York Times story.

Alvarez v. T-Mobile USA, Inc. stayed pending Concepcion

United States District Court Judge William B. Shubb (Eastern District of California) stayed a consumer class action pending against T-Mobile USA, Inc. until a decision is rendered in AT&T Mobility LLC v. Concepcion, --- U.S. ----, 130 S.Ct. 3322 (2010).  Alvarez v. T-Mobile USA, Inc. (E.D. Cal. December 7, 2010).  As with all cell phone companies bent on world domination and ultimate evil, T-Mobile's consumer contract includes an arbitration provision with a class action waiver.

Court certifies wage statement, late pay claims for 20,000 seasonal tax preparers working for H & R Block in California

United States District Court Judge Susan Illston (Northern District of California) certified a class action alleging violation of Labor Code §§ 203, 226 and 2699.   Lemus v. H&R Block Enterprises, LLC (N.D. Cal. December 7, 2010).  It appears from the decision that the case was trimmed down from a broader set of claims; a Fourth Amended Complaint was filed by stipulation of the parties after the motion for certification was filed.  The Court's fairly simple discussion suggests that the Court viewed these statutory violations as well-suited to class treatment.  It is interesting to see that, thus far, most plaintiffs are apparently avoiding the uncertainty of pursuing a representative action under PAGA by simply certifying that claim along with other claims.

Mileage reimbursement class certified in part; class definition corrected by Court

United States District Court Judge Susan Illston (Northern District of California) certified in part a class action alleging the failure to reimburse work-related mileage expenses.  Wilson v. Kiewit Pacific Co. (N.D. Cal. December 6, 2010).  As an initial matter, the Court refused to certify a class of "all" employees, noting that it was overbroad:

As an initial matter, plaintiff cannot seek to certify a class of “all current and former” California employees of defendant from July 6, 2006 to present. Motion at 3; Reply at 3-4. On its face, that definition is impermissibly overbroad as it includes employees who never incurred unreimbursed business mileage expenses under California law.

Slip op., at 3.  Next, the Court observed that the plaintiff did not submit evidence demonstrating that the Northern California district was operated under the same policies as the Southern California District.  The Court found the plaintiff inadequate to represent the Northern California District employees on the basis of thin evidence of any uniform policy that was actionable.

With respect to the Southern California District, the Court agreed with the defendant that the plaintiff's proposed class definition was problematic, but not for the reason argued:

The Court agrees that there is a problem with the way plaintiff has proposed to define this particular subclass, but not the ascertainability problem defendant asserts. Instead, plaintiff's proposed definition-all Southern California district employees who drove their non-company owned vehicles “over” 25/35 miles-would seem to include only those who received some reimbursement under defendant's policy and not those employees who drove under 25/35 miles but were nonetheless owed reimbursement for non-commute time under plaintiff's theories. The Court doubts plaintiff intended to exclude those employees from the proposed class.

Slip op., at 7.  The Court then revised the class definition, declaring it ascertainable and better defined:

All of defendant's past and present non-union employees working in the Southern California district at any time from July 6, 2005 to present who were not reimbursed for non-commute mileage expenses incurred in using personal vehicles to travel to off-site meetings or trainings.

Slip op., at 7.  This, in particular is very helpful to litigants.  It demonstrates an engaged Court that has provided a concrete example of how to refine and improve a class definition.

The Court found unpersuasive the defendant's argument that some class members had individual deals in place to get company cars.  The Court finished by offering some comments about the obligation to supplement witness lists provided with initial disclosures, finding that those concerns were not at issue due to the rapidly shifting nature of the plaintiff's claims.

"The government may not compel a commercial ISP to turn over the contents of a subscriber's e-mails without first obtaining a warrant based on probable cause."

On December 14, 2010, the U.S. Court of Appeals for the Sixth Circuit held, in United States of America v. Steven Warshak (6th Cir. December 14, 2010), that the" government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause."  Slip op., at 23.  The Court actually found that the e-mail of today is entitled to the same protection as the postal mail of days long past.  Score one for the protection of constitutional rights.  Don't get the wrong idea though; Steven Warshak and the other defendants are not good citizens.  Lot's of mail and wire fraud convictions were affirmed.

Sacks v. City of Oakland examines fees under Code of Civil Procedure section 1021.5 and common fund doctrine

For those interested in the extent to which attorney's fees are recoverable under two theories, the common fund doctrine and Code of Civil Procedure § 1021.5, a decision issued today by the Court of Appeal (First Appellate District, Division One) reviews those bases for fee awards.  In Sacks v. City of Oakland (December 10, 2010), the Court of Appeal reviewed a judgment after a bench trial in a mandate action challenging the allocation of and use of tax revenue collected by the City of Oakland pursuant to Measure Y.  The decision is interesting mostly for the fact that it discusses the scenarios under which attorney's fees are either unlikely to be awarded or are entirely unavailable.