Wage and Hour Case Notes

• Publication year: 2020
• 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 is a member of the Executive Board of the California Lawyers Association, as well as the Executive Committee of the Labor and Employment Section of the Los Angeles County Bar Association. He can be contacted at: leonard@law-slg.com.

TRIAL COURT MAY REVIEW BOILERPLATE DECLARATIONS FOR COERCION AND MAY STRIKE OR DISCOUNT THE WEIGHT OF DECLARATIONS FROM NON-PUTATIVE CLASS MEMBERS SUBMITTED IN SUPPORT OF OPPOSITION TO CLASS CERTIFICATION

Barriga v. 99 Cents Only Stores, LLC, 51 Cal. App. 5th 299 (2020)

Plaintiff brought a putative wage and hour class action on behalf of nonexempt, non-managerial employees who worked the graveyard shift. Plaintiff moved the trial court to certify two classes: (1) an "Off the Clock Class" of employees alleging uncompensated time (up to 15 minutes each) during which they were locked in the store and had to wait for a manager to let them out, and (2) a "Meal Period Class" of the employees alleging denial of full meal breaks because they were locked in the stores. Defendant opposed class certification on "commonality" grounds, i.e., individual issues predominated over common questions of law or fact. In opposition, Defendant submitted 174 employee declarations of current and former employees (only 53 of whom were putative class members) that all contained the same two paragraphs—one paragraph stating that the declarants knew their declarations could be used by 99 Cents to defend itself against a class action, and one stating that the declarants had not been coerced into signing the declarations and understood what they were signing.

To counter the declarations, Plaintiff's counsel took twelve depositions. At least some of the deponents testified that they had no idea that a class action even existed, and most deponents testified they were instructed by a human resources representative during work hours to sign the declarations, without explanation. Plaintiff moved to strike all 174 declarations as having been improperly obtained and substantively inconsistent with the testimony of the twelve deponents.

The court of appeal found that the trial court erred by denying class certification for lack of authority to review the declarations for coercion or to strike any declarations from non-putative class members. Rather, the standards articulated in Gulf Oil v. Bernard¹ controlled and authorized the trial court to exercise control over precertification communications between the parties and putative class members, including striking or discounting the weight of non-putative class member declarations, on grounds of fairness. Accordingly, the court of appeal overturned the denial of class certification and remanded with instructions.

WAIVER OF PAGA REPRESENTATIVE ACTION DOES NOT BIND THE STATE

Bautista v. Fantasy Activewear Inc., 52 Cal. App. 5th 650 (2020)

This appeal addressed two related cases with substantially similar allegations. Both plaintiffs signed settlement agreements with the defendant company in 2014, but then filed wage and hour putative class actions in 2018 and amended them to include causes of action under the Labor Code Private Attorneys General Act of 2004 (PAGA). The company filed petitions to compel arbitration in each action based on the 2014 agreements, and the trial court denied both petitions on the grounds that the arbitration agreement was unenforceable under Iskanian v. CLS Transp. Los Angeles, LLC,² and Julian v. Glenair, Inc.,³ (arbitration agreement disseminated after plaintiffs filed PAGA action unenforceable, since plaintiffs signed agreement in their individual capacities and not as representatives of the State). Relying on the agreement's "delegation" provision, the company contended that the enforceability of the 2014 waivers of representative actions was a question of arbitrability for the arbitrator to decide. The court of appeal rejected this argument, holding instead that the plaintiffs signed the 2014 agreement in their individual capacities and not as agents of the Labor and Workforce Development Agency (LWDA). Accordingly, the LWDA never agreed or entered into the agreements, and the LWDA was the real party in interest. Therefore, the agreement could...