KPA's monthly update is now available. our June featured articles are:
- Court of Appeal Finds Green Water Drop on Bottled Water in not Greenwashing, by Roxanna Tabatabaeepour
- Class Actions after ATT Mobility v Concepcion, by Robert Drexler
- What Will the California Supreme Court’s Decision in Brinker Mean for the Future of Meal and Rest Break Cases?, by Launa Adolph
Khorrami Pollard & Abir's April Newsletter is out.
Featured articles:
- California Supreme Court Simplifies UCL Standing requirements in Kwikset Corp. v. Superior Court
- Employees Entitled to two Premium Payments for missed Meal and Rest Breaks
- Will State Failure to Warn Claims be Preempted After the Court's Decision in Pliva v. Mensing
In a previous article for the KPA newsletter, I wrote about the Third District’s decision in Kirby v. Immoos Fire Protection, Inc., 186 Cal. App. 4th 1361 (2010) and its implications on plaintiffs including meal and rest break claims in misclassification cases. Today, the California Supreme Court granted review of the Kirby decision.
In Kirby, the court upheld a fee award in favor of an employer who successfully defended a rest period claim, concluding that meal and rest period claims were governed by Labor Code section 218.5’s two-way fee shifting provisions, rather than the one-way fee shifting of Section 1194.
As Matt Bailey discussed in a post today on the Bailey Dailey, this holding poses a significant issue, as two-way fee shifting would severely chill private enforcement of an employee’s statutory right to recover meal and rest period premium wages. The thrust of the argument in opposition to the court’s ruling in Kirby is that Section 226.7 premium wages should be governed by Section 1194, not only because Section 226.7 proscribes a statutorily mandated wage, but also because the California Supreme Court concluded in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) that meal and rest break premium pay is itself a form of overtime compensation.
According to the California Supreme Court’s website, the issues on review are as follows:
(1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, 226.7) or may attorney's fees be awarded under Labor Code section 218.5, (2) Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?
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An often-stated principle in class certification law is that the class certification motion is not a motion on the merits; the merits of the case are distinct from the analysis of the class certification requirements. However, in practice, the line between a class certification and merits is blurred. Two recent California Court of Appeal cases illustrate this point.
In Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524 (2009), the employee drivers filed a lawsuit challenging Diva’s policy of paying its drivers an hourly rate for assigned trips but failing to pay for on-call time between assignments, referred to as “gap” time. The trial court denied plaintiffs’ motion to certify two overlapping subclasses, one based on Diva’s alleged failure to pay earned overtime and straight time and a second targeting Diva’s failure to provide mandatory rest breaks. The denial focused on the potential difficulty of assessing the validity of Diva’s compensation policy in light of variations in how drivers spend their gap time. Diva had submitted numerous employee declarations stating that drivers typically used unpaid gap time for their own purposes such as working out at a gym, napping or eating at home or running personal errands. The trial court’s order denying certification, however, suggested that if plaintiffs’ claims are valid, class treatment of those claims is appropriate, but stated that the court must first determine if Diva’s practices are improper and, if so, which drivers fit into the appropriate class.
Read the remainder of Robert's article as published in the January KPA Newsletter here.
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