February and March 2020 employment law decisions

Employees must be paid for shifts for which they make themselves available to work.

March 19, 2020, Ninth Circuit Court of Appeals, Alexia Herrera v. Zumiez, Inc.: California law requires employers to provide “reporting time pay” to retail employees who report for work but are not actually provided work. Ms. Herrera filed a class action alleging that Zumiez failed to pay its employees reporting time pay for “call-in” shifts during which employees must make themselves available to work even though they may not be required to work. While this appeal was pending, a California Court of Appeal decided in a factually similar case involving “on-call” shifts that the employer had to provide reporting time pay. The Ninth Circuit determined that it would follow the decision in that case.

Employees can bring representative actions for Labor Code violations even if they settle and dismiss their individual actions for the same violations.

March 12, 2020, Justin Kim v. Reins International California, Inc.: In this case of first impression, the California Supreme Court had to determine whether an employee who settles and dismisses their individual claims for Labor Code violations loses standing to pursue a representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). It concluded that the answer is no. The PAGA law only has two requirements for standing: the plaintiff must be someone who was (1) employed by the defendant and alleged violator, and (2) suffered (along with other employees) one or more of the alleged violations.

Employees must name their employer in a complaint with the Department of Fair Employment and Housing prior to filing suit.

March 10, 2020, Second District Court of Appeal, Judy Alexander et al. v. Community Hospital of Long Beach: The three nurses who brought this case previously filed complaints with the Department of Fair Employment Housing (DFEH), naming Community Hospital of Long Beach and two individuals as potential defendants; and later, Memorial Counseling Associates Medical Group (MCA), which  was founded by the hospital to supply physicians for patients in the hospital’s mental health ward. They did not name Memorial Psychiatric Health Services (MPHS), which was founded by the hospital to run the ward. The nurses then filed suit, naming the hospital and MCA as defendants; and later, MPHS. The court of appeal decided that the nurses’ failure to name MPHS in the DFEH complaint precluded them from pursuing claims against MPHS in the civil case.

Prior rate of pay cannot be used to justify paying women less than men who perform the same work.

February 27, 2020, Ninth Circuit Court of Appeals, Aileen Rizo v. Jim Yovino: The federal Equal Pay Act allows for women to be paid less than men who perform the same work if the pay difference is based on a factor other than sex. The Ninth Circuit concluded that Ms. Rizo’s prior rate of pay is not a factor other than sex that justified her lesser pay. Only job-related factors are allowed.

Posted by deanroyerlaw