CA Supreme Court — Employees Have Broad Discovery Rights in PAGA Actions

Yesterday, in a unanimous 7-0 opinion, the California Supreme Court held in Williams v. Marshalls of CA that plaintiffs suing employers in Private Attorneys General Act (PAGA) are entitled to broad discovery rights.  Specifically, the Court held that PAGA plaintiffs can force an employer-defendant to turn over the names and contact information of other current and former employees.

According to the Court, “state policy favors access to contact information for fellow employees alleged to have been subjected to Labor Code violations.”  Moreover, the PAGA statutory framework “imposes no good cause requirement for seeking information by interrogatory.”  Thus, the Court ruled that, absent a court order to the contrary, employers must turn over the names of current and former employees to a plaintiff in a PAGA action so that the plaintiff may determine if others were harmed by the alleged wrongs claimed by the plaintiff.

The Court explained at length how California favors broad discovery rights, especially in consumer and labor matters. As the Court stated,

“A trial court must be mindful of the Legislature‘s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.”

Only if there is a “special reason” — such as a compelling privacy right that outweighs the PAGA plaintiff’s discovery rights or if an employer proves that it would be subjected to an “undue or excessive” burden or expense if it were forced to comply — may a trial court act to limit a PAGA plaintiff’s discovery rights.

This case will undoubtedly embolden PAGA plaintiffs and their counsel.  Now there is clear authority from the state’s highest court that expands discovery rights for PAGA plaintiffs which, in turn, leads to expanded liability for employers who are not following the state’s labor laws.

You can read the full opinion in Williams v. Marshalls of CA here.

Comments Off on CA Supreme Court — Employees Have Broad Discovery Rights in PAGA Actions

Filed under Employment & HR

San Francisco Employers May No Longer Ask About or Consider Salary History

The San Francisco Board of Supervisors today approved a new ordinance that prohibits employers from asking candidates about their salary history.  The new ordinance, if signed by San Francisco Mayor Ed Lee as expected, will go into effect on July 1, 2018.  Referred to as the “Parity in Pay Ordinance,” the new San Francisco law also prohibits employers from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant.

The new San Francisco ordinance would apply to any applicant whose work that is expected or intended to be performed in San Francisco, regardless of the employer’s actual location.

If the new law is signed by the Mayor as expected, San Francisco will join 9 other states and municipalities (including New York, Oregon, Delaware, Philadelphia, Massachusetts, and Puerto Rico) that ban employers from asking about or considering salary history.

Penalties for violating San Francisco’s new law begin on January 1, 2019.

You can read the full text of the new law here.

UPDATE:  San Francisco Mayor Ed Lee signed this new ordinance (SF ordinance #170350) into law on July 19, 2017.

Comments Off on San Francisco Employers May No Longer Ask About or Consider Salary History

Filed under Employment & HR

CA Supreme Court Clarifies Employers’ “Day of Rest” Obligations

Yesterday, the California Supreme Court answered some admittedly “unsettled questions” under California law regarding an employer’s obligation to provide a day of rest to employees under California’s day of rest statutes (codified at Labor Code §550-558.1.  These statutes prohibit an employer from “caus[ing] his employees to work more than six days in seven” (§552), but do not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” (§ 556).

The ambiguity of the statutes creates left many employers to wonder — what does it mean to “cause” an employee to work more than six days in seven?  Does it mean force, coerce, pressure, schedule, encourage, reward, permit, or something else entirely?  Similarly, what does a “week” mean?  Does it mean the employer’s pre-set work week or does it mean any rolling 7-day period?

In Mendoza v. Nordstrom, the California Supreme Court answered these long unsettled questions and held: 

(1) That a day of rest is guaranteed for each work week as defined by the employer.  Periods of more than six consecutive days of work that stretch across more than one work week (as defined by the employer) are not per se prohibited.

(2) The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the work week.  If on any one day in the work week an employee works more than six hours, a day of rest must be provided during that work week, subject to whatever other exceptions might apply.

(3) An employer “causes” its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  Thus, an employer is not forbidden from permitting or allowing an employee who has been fully apprised of the entitlement to choose not to take a day of rest.

(4) In addition, the Court ruled that employers must inform employees of their right to a day of rest.  In the Court’s words, “an employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”

As a result, California employers should update their employee handbooks to include language notifying employees of their day of rest rights.  Employers should also review their wage-and-hour policies to ensure that employees who work more than 5 days a week are not triggering day of rest liability for the employer, given these new standards.

Employers who violate California’s day of rest laws are liable for civil penalties of $200 per employee per pay period under the catch-all provisions of California’s Private Attorney General Act (“PAGA”), plus the payment of reasonable attorneys’ fees to the aggrieved employee.

You can read the Court’s full opinion in Mendoza v. Nordstrom here.

Comments Off on CA Supreme Court Clarifies Employers’ “Day of Rest” Obligations

Filed under Employment & HR

Job Available — Family Law Associate Attorney (Pleasanton)

I have been exclusively retained by Ross Family Law, P.C. in Pleasanton, CA to recruit a new associate for their firm. This is a great opportunity to work on sophisticated, high asset family law cases in a relaxed and friendly environment…where dogs are welcome too! If you are interested in applying, or if you know someone who might be, please visit our LinkedIn job posting, which can be found here.

Comments Off on Job Available — Family Law Associate Attorney (Pleasanton)

Filed under Employment & HR, Open Job Postings

Federal Court Rules that Title VII Protects Gays and Lesbians from Workplace Discrimination

For the first time ever, a federal appellate court has ruled that sexual orientation discrimination is a form of sex discrimination that is illegal under Title VII of the Civil Rights Act of 1964.  The decision in Hively v. Ivy Tech Community College came from the full 7th Circuit Court of Appeals in a 8-3 vote.

In reaching its decision, the 7th Circuit Court of Appeals overturned its own precedent.  Such an outcome was warranted, the Court said, because of the U.S. Supreme Court’s recent rulings on gay marriage and Title VII.  The Court found that a change of law was necessary now to avoid the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The 7th Circuit covers Illinois, Indiana, and Wisconsin.  Now, as a result of this case, it is illegal under federal law for employers in those states to discriminate against gay and lesbian applicants and employees.

Because the Hively decision creates a split among the federal appellate courts — some of which have reached the opposite conclusion — the issue is likely headed to the U.S. Supreme Court for a final decision that would apply nationwide.

You can read the court’s decision in Hively v. Ivy Tech Community College here.

Comments Off on Federal Court Rules that Title VII Protects Gays and Lesbians from Workplace Discrimination

Filed under Employment & HR