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Thomas Kaufman

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Thomas Kaufman is of counsel in the Labor and Employment Practice Group in the firm's Century City office.

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By Thomas Kaufman  (follow me on Twitter)

On April 30, 2012, the California Supreme Court handed down Kirby v. Immoos Fire Protection, Inc., a case that addresses the alleged right of an employer to recover attorney’s fees when it prevails in an actions for meal or rest periods asserted under Labor Code Section 226.7. 

The employer prevailed in an action that asserted both a claim for unpaid overtime and a claim for failure to provide rest periods.  The employer was awarded attorney’s fees attributable to the rest period claim under Labor Code Section 218.5, which allows a prevailing party to recover attorney’s fees in an action "for nonpayment of wages."  By contrast, under Labor Code Section 1194, attorney’s fees are available only to the prevailing plaintiff in an action for failure to pay "the legal minimum wage or the legal overtime compensation."  Section 218.5 expressly states that it does not apply "to any action for which attorney’s fees are recoverable under Section 1194."  The plaintiff appealed the award of attorney’s fees under Section 218.5, arguing that the employer could not recover under that section, and the case ultimately made its way to the California Supreme Court.

The California Supreme Court addressed three separate arguments directed to the question of whether the employer could recover attorney’s fees:  (1) is a claim for rest periods a claim for "the legal minimum wage," which would bring it within Section 1194? (2) if no, is a claim for rest periods a claim "for nonpayment of wages," which would bring it within Section 218.5?; and (3) if yes, may the employer recover attorney’s fees for a rest period claim when the action also includes an overtime claim that unquestionably is covered by Section 1194? As explained below, the court undertook a rather counter-intuitive analysis of the statutes to conclude that no party can recover attorney’s fees for meal and rest period claims, regardless of who prevails.Continue Reading California Supreme Court Addresses The Award of Attorney’s Fees in Meal and Rest Period Actions

By Thomas Kaufman  (follow me on Twitter)

As anticipated, today the California Supreme Court in Brinker v. Superior Court issued a far ranging decision that clarifies the standards for meal and rest period claims both substantively and with respect to class certification. The Court set forth fairly easy-to-follow guidelines for compliance with the law that most employers are already utilizing. The question that seemed to pose the greatest interest to the business community—whether an employer meets its obligation to "provide" a meal period by simply making one available for employees to take—was decided in the employer’s favor.

The Court also further clarified the standards trial courts should utilize in considering class certification in wage and hour cases.  As a practical matter, the guidelines the Court set forth favor employers much more than employee plaintiffs. Probably the most encouraging aspect of the decision was the fact the California Supreme Court appeared to adopt much of the U.S Supreme Court’s Wal-Mart v. Dukes interpretation of the "commonality" requirement for class certification.

The only dark lining in this otherwise silver cloud was the determination that the class rest period claim below was properly certified. Even there, however, the decision turned on a unique company policy that is not likely to be replicated in other cases. Continue Reading Brinker Clarifies California Law on Meal and Rest Periods in a Pro-Employer Direction

By Thomas Kaufman (follow me on Twitter)

Duran v. U.S. Bank, is notable because it is the first decision to analyze thoroughly the defendant’s due process rights as they were handled in one of the "innovative" class trial procedures that Sav-On v. Superior Court encouraged trial courts to formulate.  Before this case, the only case that significantly addressed class trial procedure was Bell v. Farmers Insurance. Bell, however, involved only a trial on damages after a court held that the defendant had misclassified all of its insurance adjusters as exempt.  Because liability was already decided classwide, the only issue was how much of a recovery each class member was entitled to receive.  What is worse, the Bell defense counsel waived several defenses by attempting to be "cooperative" with opposing counsel and thereby could not assert several good arguments on appeal.  Much mischief has been made by courts since Bell applying it as some sort of a template on how to conduct a class trial on liability.

Duran is strikingly different because U.S. Bank was effectively dragged kicking and screaming to trial, and it repeatedly objected to the many "innovative" procedures the trial court implemented.  Accordingly, the case presented the court of appeal with numerous, solid examples of a trial court running roughshod over the defendant’s due process rights in the spirit of attempting to formulate a "streamlined" trial procedure.  The case thus provides binding authority (assuming the California Supreme Court does not grant review) that employers can cite when arguing that the plaintiff’s trial plan improperly deprives the defendant of due process. In fact, if the guidance of this decision is followed, it is hard to see how many wage hour class actions that are routinely certified could actually proceed to trial.Continue Reading New California Appellate Decision May Sound the Death Knell for Many Wage/Hour Class Actions

By Thomas Kaufman (follow me on Twitter)

On December 31, 2011, as a final act for the year, the First Appellate District of the California Court of Appeal issued a good appellate decision for employers on the issue of independent contractor status, Arnold v. Mutual of Omaha. The case creates a veritable roadmap for insurance companies on how to treat agents so that they maintain their status as independent contractors rather than employees.Continue Reading California Appellate Court Issues a Decision That Mutual of Omaha Insurance Agents Qualify as Independent Contractors as a Matter of Law

By Thomas Kaufman

This morning, the California Supreme Court issued the long-awaited decision in Harris v. Superior Court, addressing how to interpret the administrative exemption under California law.  The case reverses a decision of the court of appeal that effectively narrowed the exemption to employees who make company policy. At its narrowest, the Harris decision addresses the limited question of whether insurance adjusters can qualify as exempt under California’s administrative exemption as it has existed at least since 2001 with the issuance of Wage Order 4-2001. Even on that limited question, the Cal Supremes declined to provide a definitive answer except to say that the court of appeal’s analysis had been wrong.Continue Reading Cal Supreme Court Reverses Horrific Decision on Administrative Exemption But Declines to Provide Much Guidance on How Exemption Should Be Applied

By Thomas Kaufman and Jonathan Barker

On December 21, 2011, a California Court of Appeal held in Aleman v. Airtouch Cellular that employees were not entitled to additional "reporting time" pay when they came into work for scheduled meetings. Additionally, when the employees worked split shifts, they were entitled only to the difference between what they actually earned for the day, and what they would have earned had they been paid the minimum wage for the day plus an extra hour. This ruling is the first published California appellate court opinion to address these issues.Continue Reading California Court of Appeal Construes Wage Order Split Shift and Reporting Time Pay Provisions in a Pro-Employer Way