On October 10, 2023, California Governor Newsom signed into law S.B. 365, a bill that amends California Code of Civil Procedure Section 1294. The new law provides that when a party appeals an order denying a motion to compel arbitration (an order which is immediately appealable), the trial court is not obligated to stay the action during the pendency of the appeal. The law marks a major shift in California civil procedure law.Continue Reading New California Law Prohibits Automatic Stay of Trial Court Action When Appealing Denial of a Motion to Compel Arbitration
Thomas Kaufman is a partner in the Labor & Employment Practice Group in the firm's Century City office.
On December 15, 2021, the United States Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana, a case which asks whether the Federal Arbitration Act (“FAA”) requires the enforcement of bilateral arbitration agreements providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act (“PAGA”).
Continue Reading Supreme Court Grants Review in Important Arbitration Case Regarding PAGA
On Monday, the Ninth Circuit vacated a judgment for Grubhub, Inc. and against a former food delivery driver, Raef Lawson, who claimed that he was misclassified as an independent contractor when he performed food delivery services. Lawson had asserted claims for minimum wage, overtime, and expense reimbursement.
Continue Reading Ninth Circuit Reversed Grubhub’s Victory on Independent Contractor Classification in Light of the Retroactive Application of Dynamex
On September 9, 2021, California’s Court of Appeal issued an important decision in Wesson v. Staples The Office Superstore, LLC (“Wesson”), holding that trial courts have discretion to strike claims brought under the Private Attorneys General Act (“PAGA”) when a trial of the action would be unmanageable. Unless the California Supreme Court grants review, Wesson will be binding upon California state courts and federal district courts.
Continue Reading Manageability – a New Weapon to Stave Off Unmanageable PAGA Claims
On July 15, 2021, the California Supreme Court issued a decision in Ferra v. Loews Hollywood Hotel, LLC which was long-awaited but was ultimately highly disappointing to employers.
Continue Reading California Supreme Court Announces New Standard That Meal and Rest Period Premiums Must Be Paid at Same “Regular Rate of Pay” Used to Calculate Overtime Payments
A former Wal-Mart employee had his $102 million dollar verdict overturned in a recent win for California employers. Roderick Magadia, the former employee, brought a class action and Labor Code Private Attorneys General Act (“PAGA”) complaint against Wal-Mart alleging, in part, that Wal-Mart issued deficient wage statements in violation of Labor Code Section 226. The alleged defect was prompted by a “Myshare” bonus, a quarterly bonus based on non-discretionary metrics. Because the bonus was non-discretionary, the law required Wal-Mart to factor the bonus into the “regular rate” of pay used to calculate the overtime premium. But, since the bonus was earned and paid quarterly while the overtime premium on hourly pay is paid during every two-week pay period, the premium must be recalculated and adjusted with a supplemental payment each quarter.
Continue Reading Sheppard Mullin Helps Overturn $102 Million Dollar Verdict
On October 9, 2019, the Second Appellate District of the California Court of Appeal issued a decision clarifying the rate of pay at which an employer must pay meal period, rest break, and recovery period premiums. More specifically, the appellate court answered the question: what does the “regular rate of compensation” in Labor Code Section 226.7(c) actually mean? In Ferra v. Loews Hollywood Hotel, LLC, a 2-1 majority of the Court of Appeal affirmed the trial court’s holding that in paying meal period and rest break premiums, the regular rate of compensation is equal to one hour of the employee’s base hourly wage and is not synonymous with the “regular rate of pay” used to calculate overtime payments. This clarification is important to every employer in California.
Continue Reading California Appellate Court Clarifies the Monetary Amount for Meal Period, Rest Break, and Recovery Period Premiums, and Affirms an Employer’s Neutral Rounding Policy
In a 2010 decision, Stolt-Nielsen S. A. v. Animalfeeds International Corp., the United States Supreme Court held that parties may not be compelled to submit to class arbitration under the Federal Arbitration Act (FAA) unless there is a contractual basis for concluding that they agreed to do so. The Court held that such an agreement could not be presumed from the fact that the arbitration agreement is “silent” on the issue of class arbitration or the mere fact that the parties agreed to arbitrate.
Continue Reading U.S. Supreme Court Upholds Individualized Arbitration Where Agreement Is Ambiguous on Issue of Class Arbitration
On February 4, 2019, the California Court of Appeal, Second District issued a 2-1 decision in Ward v. Tilly’s, Inc. in which it held employees must be given “reporting time pay” under Wage Order No. 7-2001 when an employer requires its employees to call in two hours before a potential shift to learn whether the employee is needed for work and the employee is told not to come into work that day. This decision strays from most employers’ general understanding that “reporting time pay” covers only the situation where the employee physically comes into work but is sent home early (usually for lack of work). Nevertheless, as the only published California appellate decision addressing this specific issue, California employers are bound by Ward and should revise their reporting policies accordingly to avoid liability.
Continue Reading Ward v. Tilly’s, Inc.: California Employers Should Dial Back On-Call Shift Policies
On December 10, 2018, a California Appellate Court published its decision in Donohue v. AMN Services, LLC, affirming class-wide summary judgment for the employer. The court’s decision in this wage and hour case presents some interesting take-aways for California employers in that it endorses the lawfulness of widespread timekeeping practices that class action attorneys often seek to challenge as unlawful.
Continue Reading California Wage and Hour Win for Employers: Rounding Policies and Timesheet Certifications
In AHMC Healthcare, Inc. v. Superior Court, the California Court of Appeal, Second Appellate District, Division Four, extended a prior line of California cases holding that California law follows federal law with respect to evaluating the lawfulness of time clock rounding systems. You can read our prior article about See’s Candy Shops I here. Specifically, California follows 29 C.F.R. § 785.48, which permits employers to compute employee worktime by rounding “to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour,” so long as the rounding system adopted by the employer “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”
Continue Reading California Court Reaffirms And Extends Rounding Rules