Wage-and-hour class actions: The sky is falling (or is it?)
In the dark days of 2011 and as recently as six months ago it seemed like all might be lost. The industry of wage-and-hour class litigation had exploded once workers and their lawyers caught wind of early-21 st century cases like Bell v. Farmers Ins. Exchange (over $90 million for misclassified claims adjusters), Savaglio v. Wal-Mart ($172 million for missed meal breaks), and Savon Drug Stores, Now, it seemed on the brink of collapse. The shareholder derivative lawyer California will help you in all business matters.
With the end of wage-and-hour class suits, many of us would need to diversify into other areas of litigation. I saw employment class-action litigators expand into consumer law, begin taking more individual workers’ cases and try their hands practicing in bankruptcy.
Much worse, workers who count on the plaintiffs’ bar to vindicate their rights to fair and lawful wages would be out in the cold because few of us can afford to offer contingency representation on wage cases worth a few hundred or few thousand dollars, with full fee-shifting on smaller cases uncertain after Chavez v. City of Los Angeles (2010) 47 Cal.4th 970; hourly workers cheated of their pay certainly cannot pay us for services out-of-pocket; and, as California officially recognized with the passage of the Private Attorney General Act of 2004 (PAGA), government agencies are too overburdened to enforce wage-and-hour laws comprehensively without our help.
During this bleak period, decisions in both the United States Supreme Court and in the California Courts of Appeal seemed to point to one conclusion: judges were getting tired of hearing wage/hour class actions (notwithstanding the extraordinary relief obtained for workers during the last decade of robust private enforcement of wage laws).
In the U.S. Supreme Court, the one-two punch of seemingly reconstituted a 1925 statute, the Federal Arbitration Act (FAA), to empower corporations to sweep away concerted actions by workers asserting wage claims, simply by requiring employees (or applicants) to sign agreements to arbitrate, long before the signers know they will be deprived of lawful wages. Of course, Wal-Mart v. Dukes (2011) 131 S.Ct. 2541, considering the merits of claims at the class certification stage and harping on managers’ discretion as anathema to class litigation, sent a chill down most of our spines.
As of early 2012, in the California Courts of Appeal, the eternally-pending- review Brinker Restaurant Corp. v. Superior Court (2008) (review granted) created the possibility that meal and rest period claims would be, almost as a matter of law, inherently too individualized (turning on whether workers voluntarily forego breaks) to permit classwide adjudication. And anyhow, according to Kirby v. Immoos Fire Protection Svcs (2010) 113 Cal.Rptr.3d 370 (review granted), employers could recover their attorneys’ fees against our clients if we lost any meal/rest period claim - or even lost a class-certification motion on a meal/rest claim. No reasonable plaintiffs’ lawyer could advise a humble, low-wage client to take such a risk. Wage-and-hour class actions: The sky is falling (or is it?) The shareholder derivative lawyer California will help you in all business matters.
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