Wage and Hour Case Notes

• Citation: Vol. 32 No. 6
• Publication year: 2018
• Author: By Leonard H. Sansanowicz

Wage and Hour Case Notes

By Leonard H. Sansanowicz

Leonard H. Sansanowicz is the principal of Sansanowicz Law Group, P.C. and represents employees in all aspects of employment law. He has been a Super Lawyers Southern California Rising Star each year from 2013 to 2018, and for the past four years has been named to their Up-and-Coming 100 list. He also is a member of the Executive Board of the California Employment Lawyers Association. He can be contacted at: leonard@law-slg.com.

PAGA Waiver is Unenforceable as Against Public Policy and Unseverable From Arbitration Agreement in Employee Handbook

Juarez v. Wash Depot Holdings, Inc., 24 Cal. App. 5th 1197 (2018)

Defendant's employee handbook setting forth the company's policies required arbitration of employment disputes and prohibited representative actions under the Labor Code Private Attorneys General Act of 2004 (PAGA). The company provided the handbook both in English and in Spanish. The English version stated that the PAGA provision was severable if a court held the prohibition was unenforceable; the Spanish version did not. In English, the handbook provided, "This Handbook may be translated into languages other than English as a convenience to our employees. Any ambiguity between this Handbook and any translated version will be governed by the English version."

The Second District Court of Appeal found this discrepancy to be material, such that it rendered the entire arbitration agreement unenforceable. The appellate court further held the trial court did not abuse its discretion when it found that the there was a "profound" difference between the two versions regarding "a very significant subject" and applied Civil Code § 1654 to construe the arbitration agreement against the company as drafter of the agreement. The court of appeal rejected the defendant's argument that courts must always interpret arbitration agreements to preserve the right of arbitration. Instead, the court reasoned, the trial court properly found the PAGA waiver to be contrary to public policy, and also properly found that such unconscionability permeated the entire agreement, because the difference between the two versions of the handbook was "At best . . . negligent; at worse . . . deceptive," particularly when the handbook was a contract of adhesion.

Award of Attorneys' Fees Is Not Subject to Reduction for Time Spent on Unsuccessful Claims; Late Payment Qualifies as "Willful" for Waiting Time Penalties

Nishiki v. Danko Meredith, APC, 25 Cal. App. 5th 883 (2018)

Plaintiff, an office manager and paralegal at a law firm, brought a Labor Commissioner claim for unpaid vacation wages, rest period premium wages, and Labor Code § 203 waiting time penalties. The DLSE awarded her $4,250 only for the penalty claim—and $86,160 in attorneys' fees. The law firm protested that the penalties were unwarranted and the fee award excessive. On appeal, the First District Court of Appeal reduced the penalty award but allowed the attorneys' fees as granted. The court found that the hearing officer had overestimated the number of days late the wages remained unpaid through a rather unique set of circumstances: the law firm had initially provided a timely final check, but the written description of the dollar amount was inadvertently $80 less than the numerical dollar figure actually on the check. Such a clerical error did not render the check untimely; where the law firm delayed was in correcting the clerical error once the employee had notified the firm that she was unable to cash the check (the law firm waited nine days after the employee sent her initial complaining email and then issued a check that was backdated by seventeen days, rather than reissuing a check immediately). Accordingly, the employee was entitled to nine days' worth of waiting time penalties.

With respect to the attorneys' fees, because Labor Code § 98.2 (the law permitting appeals of Labor Commissioner awards) is a one-way fee shifting statute, and because its legislative purpose is to disincentivize appeals of DLSE awards,¹ the trial court properly awarded the full measure of attorneys' fees, because the Commissioner had awarded "an amount greater than zero."² Moreover, the court of appeal found persuasive that it was the law firm, not the employee, who appealed the DLSE award; any increase to the employee's attorneys' fees, reasoned the court, was of the law firm's own doing and therefore it should not have been the party to benefit from a discount.

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Plaintiff Who Settled Her...