The U.S. Supreme Court has granted review of Integrity Staffing Solutions v. Busk to determine whether time spent by employees in a security check line constitutes work and is therefore compensable. The case was brought by employees of Integrity Staffing Solutions, a temporary employee provider, who provided employees to Amazon.

In Integrity, temporary workers were assigned to work for Amazon at two of its Nevada warehouses. According to the class action plaintiffs, they regularly spent approximately 20-25 minutes at the end of each day in security checks when leaving work, waiting to be searched, empty their pockets, and pass through metal detectors. They claimed they were not compensated for this time and were due overtime pay. The workers argue that Amazon required them to clear security checks each day, as necessary to reduce employee theft from the warehouses. The plaintiffs went on to note that the Title 29 of the Code of Federal Regulations Part 785 provides, “[t]he workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.” A workday is further defined as, “[t]he period between the time on any particular day when such employee commences his/her principal activity and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employees scheduled shift hours, tour of duty, or production line time.”

On appeal, the Ninth Circuit noted that the FLSA, as amended by the Portal-to-Portal Act of 1947, “generally precludes compensation for activities that are ‘preliminary’ or ‘postliminary’ to the ‘principal activity or activities’ that the employee ‘is employed to perform.’” However, it also noted that “preliminary and postliminary activities are still compensable” if they are “integral and indispensable” to an employee’s principal activities. For example, in Steiner v. Mitchell, (1956)350 U.S. 247, 332, changing clothes and showering were “integral and indispensable” to the production of batteries. It has been held that to be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” (Alvarez v. IBP, Inc. (2003) 339 Fed.3d 894, 902–03.)

In finding the employees entitled to compensation, the Ninth Circuit held that the security clearances were necessary to the “employee’s primary work as warehouse employees and done for Integrity’s benefit.

The Supreme Court, in issuing a decision on this issue, will clear up much confusion, as the Ninth Circuit’s decision is in direct conflict with other circuit rulings. In Gorman v. Consolidated Edison Corp. (2007) 488 Fed.3d 586, the Second Circuit ruled that time spent in a security screening by employees was not compensable. Furthermore, the Eleventh Circuit issued a similar ruling in Bonilla v. Baker Concrete Construction (2007) 487 Fed.3d 1340.

The outcome of this case has the potential to reach thousands of workers who have worked for Amazon and have been subject to the security checks. Amazon employs approximately 38,000 temporary employees at its warehouses. It is estimated that if the Supreme Court affirms the Ninth Circuit ruling, damages will be in the millions.

Employers should be aware of the standards applied by the courts to determine whether their employees are entitled to compensation for activities required by the employer. Employers requiring their employees to spend time in security checks, change clothes, or otherwise take time to prepare for work should seek advice of counsel to determine whether such time is compensable. If you are an employer unsure about whether your employees must be compensed for time spent in security checks or preparing for work, please contact our attorneys at Jampol Zimet, LLP located at 800 Wilshire Boulevard, Los Angeles, CA 90017, or at (213) 689-8500, for a consultation to ensure your interests are protected before it is too late.

This blog was first posted to Jampol Zimet’s Insurance Defense Blog. Click here to read the original entry. 


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At the same time NFL Commissioner Roger Goodell faces tough questions about Ray Rice, a new domestic violence law went into effect in Massachusetts.  Employers with 50 or more employees must now provide employees who are victims of domestic violence up to 15 days of leave in any 12-month period.  Governor Deval Patrick signed the law on August 8, 2014 and it became effective immediately so employers should not delay in taking steps to come into compliance.

Leave is also allowed to employees if a family member is a victim of abusive behavior, including spouses, parents, step-parents, children, step-children, siblings, grandparents, and grandchildren.  The definition of family member also includes those in a “substantive” dating or engagement relationship and who live together, persons having a child in common regardless of whether they have ever married or lived together, or a guardian.

The law applies to all employees regardless of how long they have been at the company or how many hours they work.  Leave may be taken for any of the following reasons:

To seek or obtain medical attention, counseling, victim services, or legal assistance;

To obtain a protective order from a court;

To appear in court or before a grand jury;

To meet with a district attorney or other law enforcement official;

To attend child custody proceedings;

To secure housing; OR

To address other issues directly related to the abusive behavior against the employee or his or her family member.

Employers may require employees to provide advance notice for leave unless there is a threat of imminent danger to the health or safety of the employee or a covered family member. If advance notice is not possible, employees must notify the employer within three workdays that the leave was taken under the law.  Employees must exhaust accrued paid leave before taking any unpaid leave unless the employer waives this requirement.

The law allows employers to require employees to provide documentation supporting the leave within a reasonable time of the request.  An employee satisfies this documentation requirement by providing any one of the following:

A protective order, order of equitable relief or other documentation issued by a court;

A document under the letterhead of the court, provider or public agency which the employee attended for the purposes of acquiring assistance as it relates to the abusive behavior;

A police report or statement of a victim or witness provided to police;

Documentation that the perpetrator of the abusive behavior against the employee or family member of the employee has:  admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section;

Medical documentation of treatment as a result of the abusive behavior;

A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior;

A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

Employers may not retaliate or interfere with an employee’s use of such leave, and the Massachusetts Attorney General will enforce the law.  It should be noted that this new law adds to the Victim/Witness of Crime law which provides leave to employees who have been a victim of a crime or have been subpoenaed to attend court as a witness.

All covered employers must notify employees of their rights and responsibilities under the law.  With an immediate effective date, employers should review all handbooks and policies and amend them accordingly.  Supervisors and managers should also be trained on how to handle such leave requests.

This blog was posted on September 17 on Employment Law Business Guide. Click here to read the original entry. 


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Pregnancy Discrimination Act:

Young v. UPS. The issue in Young is " Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Removal:
In Dart Cherokee Basin Operating Company, LLC v. Owens, the issue is "Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.”

Appelability of the dismissal of an action consolidated with other suits:
In Gelboim v. Bank of America Corporation, the issue is "Whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable." 

FLSA:
In Integrity Staffing Solutions v. Busk, the issue is " Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

Labor Law:
In M&G Polymers USA, LLC v. Tackett, the issues are: "(1) Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold."

Judicial enforcement of the EEOC's mandatory duty to conciliate:
In Mach Mining v. EEOC, the issue is: "Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit."

Juror Dishonesty:
In Warger v. Shauers, the issue is "Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty."

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Today, in Lane v. Franks, SCOTUS held in a unanimous opinion that “Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection.”  And “the individual defendant has qualified immunity from this suit because prior precedent wasn't clear enough that you could not fire an employee for sworn testimony.” http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf Justice Sotomayor delivered the opinion for the Court and Justice Thomas filed a concurring opinion joined by Scalia and Alito. - Click here to see more. 

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DRI Online Communities

Posted on May 22, 2014 02:28 by Admin

On May 21, DRI rolled out the new committee online communities.  The new communities will enhance DRI’s web presence and will allow committee members to connect with each other and share information more easily.  Each community will have a discussion list, which will replace the current list serve, as well as a document library, blog, and calendar.  Committees will also be able to post announcements about their seminars and publications, and promote open positions and volunteer opportunities.  All posts are sent to members as a daily digest from the communities, unless a member changes his or her settings to real-time delivery.   The communities are designed to be the hub for all committee activity. 

There are six substantive law committees serving as the pilot group: Commercial Litigation, Employment and Labor Law, Product Liability, Women in the Law, Workers’ Compensation, and Young Lawyers.  Additional committee communities will go live over the course of the year.

Members can access the communities through the DRI website, www.dri.org  (there is a new link in the top blue navigation bar).  Committee members are automatically members of the respective community and are being notified via email. Members should call (312) 695-6221 if they are having trouble logging in to the site.


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If you don’t know, it could cost you.  In the past few years, federal courts have seen an influx in “donning and doffing” lawsuits.  These suits reflect a general discontent of employees that are not compensated for the time spent dressing in work-related attire while on employer premises. Sometimes employers are required to pay and sometimes they aren’t, but it is best to be aware of recent developments to avoid being caught with your pants down.

Consider Your Collective Bargaining Agreement & the FLSA

On January 27, 2014, the Supreme Court handed down its opinion for Sandifer v. United States Steel Corp.  The Supreme Court granted cert on this case to determine whether an employer must pay employees for their time spent putting on (donning) and taking off (doffing) their work-related garments and protective gear under the Fair Labor Standards Act (FLSA).  

The FLSA sets out the circumstances under which an employer must compensate an employee.  Pertinent to “donning and doffing”, section 790.8(c) of the FLSA requires that an employer compensate an employee for the time they take to put on and take off safety equipment. However, section 203(o) creates an exception, which indicates that any time spent changing clothes or washing at the beginning and end of the workday shall be excluded from compensated time if the collective bargaining agreement in place excludes compensation for these activities.  In Sandifer v. United States Steel Corp., 800 steelworkers from Indiana have challenged the definition of clothes in the applicable collective bargaining agreement in line with section 203(o) of the FLSA.  

When United States Steel Corp. steelworkers arrive at the plant each morning, they report to their respective locker rooms and dress in protective gear that is stored at the facility.  A steelworker wears fire retardant jackets, fire retardant pants, steel toed boots, protective goggles, ear plugs, hard hats, a flame retardant or aluminized snood (a head covering to protect the head and neck), a flame retardant wristlet that covers the forearms, and flame retardant spats that cover the foot and shin area.  If these items fall outside of the definition of “clothes,” perhaps qualified as “protective gear,” then Sandifer and the other steelworkers must be compensated for the time spent changing.

The amount of time that it takes each worker to put on (don) and take off (doff) each protective item can certainly accumulate each day. Sandifer and the other steelworkers allege that they are owed back overtime pay because the amount of time spent donning and doffing their protective gear would qualify as overtime beyond the normal 40 hour work week.

The Supreme Court determined that all items worn by the steelworkers, other than protective goggles and ear plugs, qualified as “clothes” under the ordinary meaning of the word, defined as “items that are both designed and used to cover the body and are commonly regarded as articles of dress”.  Because these items are deemed “clothes," employers and employees are authorized to decide whether that time is compensable and memorialize the decision in a collective bargaining agreement.

The Supreme Court’s determination of Sandifer can impact your business if you have established a collective bargaining agreement that qualifies the donning and doffing of safety equipment or protective gear as “changing clothes.”  It is important to review the types of work-related garments and gear your employees wear.  Are the items commonly regarded as articles of dress?  Or are some of the items more similar in function to ear plugs and safety glasses?  Certainly no one would question whether jeans, a tee shirt, a suit, or a blouse were clothes.  But the Supreme Court’s decision requires that you consider each element of your employees’ uniform in a new light.  It may be necessary that you reconsider whether certain items be donned during work hours in order to prevent the risk of future litigation.  The Sara Lee Corporation failed to address these implications in time to avoid litigation.

The Portal to Portal Act: Donning & Doffing May Be a Principal Activity

In 1947, the Portal-to-Portal Act was enacted as an amendment to the FLSA in order to clarify the type of time that classifies as work time.  Section 254(a)(2) provides that no employer shall be liable for failure to pay wages or overtime for activities that are preliminary or postliminary to principal activities, which occur before the workday starts or after the workday ends. Thus, the pertinent legal question is whether an activity is a principal activity.  

In Duran v. Sara Lee Corp., a group of Sara Lee factory workers in Zeeland, Michigan, brought suit to demand back overtime pay for the time spent donning and doffing their protective gear, including ear protection, safety glasses, steel-toed boots, and bump caps, while on-site.  These workers argued that putting on and taking off this protective gear qualifies as a “principal activity” of their job.  In March, a federal jury determined that the Sara Lee factory workers were engaging in “principal activities” of their jobs while donning and doffing their protective gear because it is one of the many tasks that must be completed on the job daily.  The jury also determined that these factory workers are owed back overtime pay for these activities.  In addition, the jury determined that Sara Lee’s actions were willful, which allows for greater recovery of damages.  Although it is certain this verdict will be appealed, the Michigan jury is sending a message to employers to review their contracts and reconsider their donning and doffing policies.

Conclusion

Savvy business owners should carve out time to review the articles of clothing and protective gear worn by their employees.  Consider the purpose and function of each article. If there is a chance that an item is more likely to be qualified as protective gear rather than clothes, it is vital to revisit your current collective bargaining agreement and employment manual with respect to the donning and doffing of work-related articles.  The time spent examining your current policies is well worth the benefit of avoiding or minimizing future litigation whether your employees wear clothes to work or not.


This article does not constitute legal advice, is not applicable to factual situations, and does not establish an attorney-client relationship.

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Drafting the Employee Handbook

Posted on March 24, 2014 07:14 by Marc Zimet

Are you an employer? Then you should have an employee handbook. If you don't have one, now is the time to procure one. If you do have one, then now is the time to review your handbook to ensure it is up to date with the ever changing employment laws. While the state of California does not require an employer to maintain an employee handbook, a well drafted handbook helps to avoid lawsuits, offers an affirmative defense to litigation, and ensures compliance with complex state and federal regulations. 

A good employee handbook sets forth the company's stance on important legal issues, such as harassment and discrimination, as well as informs the employee of the company's operating policies and procedures. A handbook can set forth the rules for employees, including management guidelines, and may also be used to educate employees about benefit plans. Regardless of the depth of a handbook, there are a few policies an employer should be sure to develop and include. 

- An explanation of “at-will” employment and disclaimer. To ensure an employee handbook is not interpreted by an employee as constituting an employment contract , the handbook must include an “at-will” disclaimer. This will explain to the employee that he or she can be terminated with or without cause at any time.

-An explanation of the different classifications of employment. This should include full-time, part-time, temporary, exempt, and non-exempt classifications. It should be clear which category an employee fits into, and the employer should ensure the employee is properly classified. 

- An explanation of hours, meals, and breaks. To aid in avoiding litigation, employers should ensure their policy regarding employee hours, meals, and breaks is clearly set forth and in compliance with legal requirements. This should also include the employer's policies regarding over-time and double-time pay rates. 

-A statement of equal employment opportunity. Employers should ensure they have a well drafted policy addressing their dedication to equal employment and intolerance of all forms of discrimination against classes protected by law. It should further set forth that the employer shall not discriminate at any time during the employment process, such as during hiring and termination. 

-Policy against harassment. All employers should clearly set forth their policy against harassment in the workplace. This should include all forms of harassment employees are protected against (not just sexual). A harassment policy should also provide employees who believe they have been harassed with guidelines for reporting such harassment and protocols for handling incidents reported by employees. 

- Employee conduct and performance. The handbook should set forth what conduct is impermissible in the workplace, especially that conduct which may result in termination. It should also set forth expectations regarding an employee's performance and whether there will be periodic reviews of performance levels. 

-Explanation of the company's electronic privacy policies. The employee handbook is the best place for employers to set forth their policy on electronic privacy of employees. This includes an employee's privacy of their computers, emails, telephone conversations, and voicemails.  

- Family and Medical Leave Act (FMLA) policy. If you are an employer with more than fifty employees, you are required by law to provide your employees with your FMLA policy in writing. The handbook is an excellent place to do this.

- Acknowledgment. Employers should always ensure they receive a written acknowledgment from the employee stating his or her receipt of the handbook and that he or she understands the terms and agrees to abide by company policies. It cannot be emphasized how important this step is. 

Due to the complexity of employment laws, employers should hire experienced legal counsel to draft and/or review their employee handbook. A well drafted handbook will be written in simple, laymen language to ensure all employees understand its provisions and there is no confusion about the meaning of its terms.

Last of all, employers must ensure its employees actually follow the employee handbook. It is important that not just low-level employees comply, but managers as well. This is especially true in cases of claims of discrimination or harassment where a manager's handling of a claim can either mitigate a company's damages, or increase them. 

While the above list is not exclusive, it provides a solid foundation for employers to base their employee handbooks. An employer who clearly sets forth its policies on these issues protects itself against litigation, and will find that in the event litigation is ever commenced, the handbook provide defense as well as evidence of company policies and culture. 

Blurb: If you are an employer in California, an employee handbook is a must. While the state of California does not require an employer to maintain an employee handbook, a well drafted handbook helps to avoid lawsuits, offers an affirmative defense to litigation, and ensures compliance with complex state and federal regulations. Included are some of most important policies an employer should be sure to develop and include in their handbook.


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How to Avoid Retaliation Claims When Firing

Posted on January 22, 2014 02:34 by Marc Zimet

Retaliation claims were the most frequent claims filed with the Equal Employment Opportunity Commission (EEOC) for 2012. There has been a sharp rise in retaliation claims since the 2006 Supreme Court opinion in Burlington Northern & Santa Fe Railway Company v. White, which lowered the standard for what is considered retaliatory conduct. Employers accused of wrongdoing by an employee risk such a claim when the employee is later fired for a legitimate reason. However, employers should not fear retaliation claims so that employees are kept on to the detriment of their business. While fear of a retaliation claim is a legitimate concern, there are steps an employer can take to help reduce the likelihood of such a claim, and protect themselves if a claim is made. 

1) Maintain an effective no-retaliation policy. All employers should maintain an effective no-retaliation policy to solidify its stance against retaliation. This should be affirmed in the company’s policies against harassment and discrimination, but can also be provided for in its own provision.

2) Train Employees. Employers must train supervisors and managers on how to properly respond to employee complaints, and specifically those complaints that involve them as managers. Those managers to whom a complaint is made against, or who personally supervise the complaining employee, should not be in charge of investigating the complaint. A neutral, third party should always be used to ensure an objective viewpoint.

3) Investigate Claims. All complaints should be thoroughly investigated and documented.

4) Document Performance Issues. Good documentation of performance issues leading to termination can defend an employer against a retaliation claim. Ensure employees with similar performance problems are treated equally.

5) Before termination, review discipline and the decision to terminate. Ensure the employee’s poor performance is well documented. If an employee has made a recent complaint regarding harassment or discrimination, has complained of workplace misconduct, or has engaged in any protected activities such as union picketing, it may not be a good time to terminate if there may appear to be a connection between the activity and the termination.

No employer wants to face a retaliation complaint. Proactive employers following the above steps can reduce their exposure and likelihood of suits. In the case that a complaint is filed, employers aren’t stuck with a poorly performing employee. However, understanding the proper steps to documenting the performance issues and ensuring the cause for termination is clear from the record and timing is essential before taking termination action.

This blog was originally posted on Jampol Zimet’s blog on January 14. Click here to read the original entry.  

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The U.S. Court of Appeals for the Second Circuit has granted two petitions to appeal trial court decisions in employment cases concerning whether interns qualify as employees and therefore are entitled to minimum wage and overtime protections. The two cases in question involve similar facts, however, the trial courts arrived at exact opposite conclusions.

In Eric Glatt and Alexander Footman, et al., v. Fox Searchlight Pictures, Inc., former interns Glatt and Footman brought suit against Fox in 2011, seeking class certification for more than one hundred interns and back pay for work done for the company on the film Black Swan. While the U.S. Supreme Court has upheld unpaid internships, such internships must be for training purposes. Glatt and Footman claim their internships, which consisted of getting coffee and taking out the trash, were anything but that. Citing the Labor Department’s six-prong test that must be met in order for an internship to be legally unpaid, District Judge William Pauley permitted the class certification and granted summary judgment for the plaintiffs, ruling the interns were in fact employees because the picture company had formal and “significant” control over the interns.

In the second case, Wang v. Hearst Corporation, unpaid interns sued the magazine company on behalf of 3,000 students who worked in the name of gaining experience. However, District Judge Harold Bauer declined to certify the class stating the class lacked the element of commonality. His finding was based on the fact that the company did not have an internship policy and that each Hearst magazine utilized interns in different manners and for different purposes.

The U.S. Court of Appeal’s decision in these cases is being watched closely by many, especially those in industries that rely heavily on unpaid interns. For those industries, such as the entertainment, finance, and sports industries, a decision changing the way interns are classified could change the way these industries operate. Hearst Corporation has already stopped its practice of taking interns. To students seeking real-world experience, this could mean they graduate without any training or contacts to help them land a job. To critics of the industries, unpaid internships are nothing more than an abuse of the labor system. For employers, the outcome will determine how future internships are handled; including for what purposes unpaid interns can be utilized. Interestingly, according to the Hearst decision, so long as an employer does not have an internship policy in place, it should be protected from class actions. This, however, will not protect an employer from individual suits.

This blog was originally posted on December 17 on the Jampol Zimet blog. Click here to read the original entry. 

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The ruling comes from California’s Court of Appeals for the Sixth District in Bain v. Tax Reducers, Inc. after extensive litigation following the plaintiff’s month-long employment with the defendant. Plaintiff Harold Bain worked as an accountant for a firm where he was classified as an independent contractor, earning a salary for a fixed 32 hours per week.

A few years later, while attending a seminar, Bain and his employer realized he was improperly categorized as an independent contractor when in fact he was an employee. They agreed to finish the year, and then re-categorize Bain as an employee. However, shortly before the year’s end, in December 2004, the company was sold to defendant TRI. TRI’s President James Griffin met with Bain to discuss his employment, but did not discuss whether Bain would be an independent contractor or employee. After the takeover, Bain was never given any employment documents from TRI. Bain put together a packet consisting of a W-4, I-9, and other documents and placed them on Griffin’s desk; Griffin denied ever receiving them.

While working for TRI, Bain was instructed to continue to use his weekly time sheets to report his hours, and worked under the direction and supervision of TRI. He was directly supervised by Griffin and met with clients as they were assigned to him. At the end of the first month, Bain had not yet been paid and so he asked Griffin when he would receive his first pay check. Griffin responded by leaving an independent contractor agreement on Bain’s desk, proposing to pay Bain a reduced rate and terminating employment after six months. Believing Griffin was trying to reclassify him from his employee status, Bain responded to Griffin requesting employee status and no reduction in pay. Griffin said he would talk to the former employer. A few weeks later, Bain resigned citing TRI’s failure to pay him for seven weeks and failure to reimburse him for expenses submitted.

In March 2005 Bain filed a claim for unpaid wages and expenses with the California Labor Commissioner and sent a demand letter to TRI. TRI responded that its offer to pay Bain a reduced rate “still stands” but did not send a check. Bain claimed $7,700 in unpaid wages, $157.26 for unpaid expenses, and $6,600 in waiting time penalties. In its response, TRI claimed Bain was not entitled to wages or penalties because he was never an employee. The hearing before the Labor Commissioner occurred a year later in March 2006, at which time it was found that Bain was an employee and he was awarded the amounts requested plus interest. TRI appealed the decision to the superior court. Although labeled an “appeal” such trials are de novo in which the decision of the Labor Commissioner is not entitled to any weight.

In Superior Court, trial was set for December 2006. The parties reached a judicially supervised settlement the day of trial. However, the court failed to retain jurisdiction over the settlement. The parties attempted over the next few months to finalize a written settlement agreement, however they could not agree on the terms. A year and a half later, in May 2008, Bain filed a new action to enforce the settlement. Litigation followed at which time both parties conducted discovery and sought summary adjudication. TRI argued that Bain’s cause of action for Labor Code violations and wages due were time barred by the statute of limitations. The trial court denied the motion.

After a four day trial, the trial court held that Bain was in fact an employee of TRI and that his claims were governed by a three year statute of limitations period. However, because TRI had agreed to pay Bain wages in January 2007 as part of their December 2006 settlement, the limitations period began to run in 2007 and therefore the claims were not time barred. Alternatively, the court held that Bain was entitled to rely on the doctrine of equitable tolling because he had consistently pursued his claims. The court found in Bain’s favor on the claims and gave him a choice of two judgments both totaling approximately $25,400. TRI and Bain appealed; Bain claimed additional attorney’s fees owing and an enhancement factor against TRI due to alleged vexatious litigation. TRI claimed the court erred in finding the action was not barred by the statute of limitations and when it imposed statutory penalties.

On appeal, the Court stated that a cause of action for wage liability must be commenced within three years after the cause of action accrues. A cause of action accrues when the wages first become regularly due (i.e. on payday). Therefore, the Court held the trial court erred in finding the cause of action accrued after TRI agreed to pay a settlement, in 2007, when in fact it accrued no later than February 18, 2005, the last day Bain worked for TRI. As suit was not filed until May 7, 2008, more than three years later, his causes of action were time barred before the superior court.

However, on the issue of equitable tolling, the Court found the limitations period to be tolled. The doctrine of equitable tolling applies when a party has multiple remedies available and pursues one, such as where a plaintiff first pursues administrative remedies, even if not legally required to exhaust those first. Whether the doctrine applies is heavily reliant upon the individual facts and the proponent must demonstrate three elements: 1) timely notice, 2) lack of prejudice to the defendant, and 3) reasonable and good faith conduct of the plaintiff. Based upon Bain’s diligent prosecution of his claims, substantial evidence existed to support the trial court’s ruling that the statute of limitations was equitably tolled.

This case serves to remind employers that proper classification of employees is essential to avoiding litigation. It is clear in this case that both Bain’s former employer and defendant TRI lacked guidance or knowledge on the issue of employee classification. Furthermore, TRI failed to adhere to laws requiring payment to its employees thereby subjecting it to waiting time penalties. This case is a prime example of how such mistakes can lead to time-consuming and costly litigation, all which could have been avoided.

This blog was originally posted on December 3, 2013 by Jampol Zimet LLC. Click here to read the original entry. 
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