Plaintiffs Given Broad Access to Discovery in PAGA Suits by California Supreme Court

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by Grace Lim-Ayres, Esq.

On July 13, 2017, the California Supreme Court in Williams v. Superior Court (Marshalls of CA, LLC) issued an opinion addressing the scope of discovery in representative actions brought under PAGA (Private Attorneys General Act of 2004, codified in Cal. Lab. Code § 2698 et seq.).  The Labor Code Private Attorneys General Act (PAGA) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations.

The Williams Court unanimously reversed the trial court’s discovery order denying plaintiff access to statewide contact information for fellow employees of other Marshalls stores.  It held that plaintiffs in PAGA actions have access to a broad scope of discovery similar to discoverable information in a class action.  The plaintiff is entitled to statewide contact information at the onset of the case to determine which cause of action to plead, and whether a broader representative action is warranted.

In what could be considered another blow to employers in an already employee-friendly state, given the relatively low threshold for pleading, employees may now bring more PAGA claims that are in fact “fishing expeditions”, which will in turn require employers to spend more time defending against them.  In addition, it is clear that statewide contact information is relevant and discoverable in a PAGA claim at the outset of the case. Continue reading

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California Cities and Counties “Ban the Box” That Asks About Criminal History on Job Applications

jobapplicationIt’s a familiar box on any job application. “Check here if you have ever been convicted of a crime in a court of law.” But is it legal?

Recent US Census results illustrate that as many as 70 million American adults have a criminal record of some kind. In California, as many as 1 in 4 adults has an arrest or conviction in their history. Employers are reluctant to hire individuals with such a background, even though they may otherwise be well-qualified. Supporters of the so-called “Ban the Box” movement, which would remove application screening questions pertaining to an individual’s criminal history, aim to level the playing field between job-seekers. Continue reading

Employers May Only Recover Attorney’s Fees and Costs in Certain Actions If They Can Demonstrate that the Plaintiff Brought the Action in Bad Faith (SB 462)

Employers May Only Recover Attorney's Fees and Costs in Certain Actions if They Can Show the Employee Acted in Bad Faith

Employers May Only Recover Attorney’s Fees and Costs in Certain Actions if They Can Show the Employee Acted in Bad Faith

by Jennifer A. Grady, Esq.

After January 1, 2014, employers will only be able to recover reasonable attorney’s fees and costs if they are the prevailing party in a court action brought by current or former employees for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions if  they can demonstrate that the employee brought the action in bad faith.  In order to make this recovery, either party must have requested attorney’s fees and costs at the initiation of the action.

Senate Bill 462, which amends Labor Code § 218.5, does not permit employers to recover attorney’s fees and costs on cases for failure to pay minimum wage or overtime.  In such cases, California Labor Code § 1194(a) provides that in a civil action, an employee, but not the employer, is entitled to recover the unpaid balance of the full amount of the unpaid minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.

Senate Bill 462 was signed into law by California Governor Jerry Brown on August 26, 2013.  The new provisions of this law will take effect on January 1, 2014. Continue reading