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On January 5 ,2018, the Labor Commissioner served Orders, Decisions or Awards in claims of overtime, liquidated damages and penalties by seven caregivers against two limited liability companies and an individual, who was the manager of the LLCs.  After a two-day hearing, the Labor Commissioner awarded over $2.5M to the seven caregivers.  The defendants attempted to appeal the awards but were unsuccessful because of their failure to post the undertaking under Labor Code §98.2.  The defendants moved the court for a waiver of the undertaking requirement but were again unsuccessful because of their failure to establish that they were indigent.

The Law Office of Allan Villanueva represented all seven caregivers in this matter.

On July 3, 2017, the Court of Appeals issued its opinion AFFIRMING the District Court’s order denying The Finish Line, Inc.’s motion to compel arbitration.  The text of the opinion is as follows:

MEMORANDUM (This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3).

Before: SCHROEDERR and RAWLINSON, Circuit Judges, and DRAIN (The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation).

On December 22, 2016, the California Supreme Court in AUGUSTUS v. ABM SECURITY SERVICES, INC., dealt another severe blow to employers in rest period cases:

“What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1038-1039 (Brinker).)”

Slip op. 1

On October 11, 2015, the Governor signed into law SB 588, which added Labor Code §238 and went into effect January 1, 2016.

If a final judgment against an employer arising from the employer’s nonpayment of wages remains unsatisfied for 90 days, an employer is prohibited from continuing to conduct business unless the employer has obtained a bond from a surety company and has filed a copy of that bond with the Labor Commissioner. As an alternative to the bond requirement, the employer may provide the Labor Commissioner with a notarized copy of an accord reached with an individual holding an unsatisfied final judgment. Any employer conducting business without satisfying the bond requirement subject to a specified civil penalty, $2,500.00 for the initial violation and $100 per day for subsequent violations not to exceed $100,000.00.

The Labor Commissioner under §238.1 may also issue to employers who violate Labor Code §238 a stop order prohibiting use of employee labor.   An employer, owner, director, officer, or managing agent of the employer who fails to observe a stop order issued and served upon him or her is guilty of a misdemeanor.

On November 4, 2016, a DLSE hearing officer awarded over $27,000.00 in overtime wage, liquidated damages, penalties and interest to a caregiver who worked 4 days per week for less than 4 months.

At the outset, Vancouver Home LLC claimed that the employee was not even an employee.  Yeah right.  Then as usual, it claimed that employee did not work more than 8 hours per day.  Eventually, the hearing officer found that the employee worked 19 hours per day.  Lesson for care home operators, “the truth will prevail!”

Well, looks like The Finish Line, Inc. was not satisfied with the Court’s order and has appealed it to the 9th Circuit.  Perhaps the issue will be “Is Armendariz still good law, in light of Concepcion.”  Stay tuned!

I have seen some arbitration agreements that seem reasonable and then some that are outright abominable.  The Finish Line, Inc.’s arbitration agreement, that an employee submits to just by the fact of applying for or being employed by the company (you don’t need to sign to manifest consent), is on the right of the scale.  The US District Court agreed.  Plaintiff, represented by the Law Office of Allan Villanueva, argued seven unconscionable provisions in the agreement in Capili v. The Finish Line, Inc., 116 F.Supp.3d 1000 (2015). The court needed only three to strike down the agreement as permeated by unconscionability and therefore unenforceable.  Here is the link: https://www.leagle.com/decision/In%20FDCO%2020150723721.xml/Capili%20v.%20Finish%20Line,%20Inc

In a recent case before the First District Court of Appeal, Allan Villanueva briefed and argued the issue of whether a “Mutual Agreement to Arbitrate Claims” was unconscionable and therefore unenforceable.

On May 15, 2014, the Court held in Tiri v. Lucky Chances, Inc. “the trial court lacked the authority to rule on the enforceability of the agreement because the parties’ delegation of this authority to the arbitrator was clear and is not revocable under state law.”  Although the agreement and hence the delegation clause was procedurally unconscionable, the clause was not substantively unconscionable.

The delegation clause stated, “The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.”

I am often asked whether an undocumented worker can seek from his or her employer compensation for minimum wage, overtime wage, meal and rest break violations. Under California Law, the short answer is “YES!”

“All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.

“For purposes of enforcing state labor, employment, [civil rights, and employee housing laws,] a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.

The Law Office of Allan Villanueva representing two plaintiffs in an age discrimination case prevailed on October 9, 2013, in a Motion for Summary Judgment brought by one of the largest retailers in the US.

Plaintiffs who were cashiers at defendant were terminated for what defendant believed was a misuse of promotional coupons for plaintiffs’ own benefit.  When plaintiffs were interviewed, they purportedly admitted to violating defendant’s integrity policy, which was akin to theft.

Plaintiffs countered that the investigation leading to termination, and not only the termination, was discriminatory.  Plaintiffs argued that defendant did not even interview employees who handled the coupons, who were involved in the transactions the plaintiffs were involved in, and who may also have violated company policy.