Court of Appeal holds that monetary value of accrued vacation need not appear on wage statements until payment is due

In Soto v. Motel 6 Operating, L.P. (Oct. 20, 2016), the Court of Appeal (Fourth Appellate District, Division One) held in a PAGA action that Labor Code § 226(a) "does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship." Slip op., at 2.  The Court easily concluded that the disclosure of such information on wage statements on a regular basis was not required by the current law.  Nothing to see here, folks. Move along.

Spencer C. Skeen, Jennifer L. Santa Maria, and Sarah A. Williams of Ogletree, Deakins, Nash, Smoak & Stewart represented Motel 6 Operating, L.P.

JOB OPPORTUNITY: wage and hour attorneys with roughly three to six years experience

If you are an attorney with wage and hour experience and have been practicing for roughly three to six years, you are welcome to reach out to me at Setareh Law Group (contact information available via state bar -- if you can't find that, you shouldn't be sending me anything anyhow).  I need an associate to add to my litigation team here.  Reading my blog already demonstrates your discerning eye for insightful discourse, so test 1 is complete.

Last day at Berns Weiss LLP

Today is my final day at Berns Weiss LLP. Beginning next week, I will return to familiar terrain, once again into the wage & hour breach.  My thanks to Berns Weiss for everything and best wishes to everyone there.

Law-less Friday: San Diego's arbitrary and capricious six-foot rule

I take my constitutional rights very seriously.  For example, I am more aware of first amendment rights after blogging for so long.  And who hasn't said "thank goodness" for that Fifth Amendment a time or three after a hazy Friday night?  But I've noticed that the contours (oh, the foreshadowing) of rights seem to get tested quite frequently in areas that many consider to be unsavory.  Thus, it is with great sadness that I report to you that in Coe v. City of San Diego (Sept. 28, 2016), the Court of Appeal (Fourth Appellate District, Division One), held that application of San Diego's six-foot rule was not arbitrary and capricious on the facts before it, affirming the revocation of a permit held by appellant Suzanne Coe.  What, you ask, is the six-foot rule?  I am glad you asked.  The six-foot rule states that it is unlawful for a responsible person to allow a nude person within six feet of a patron at a nude entertainment business.  In a nutshell, Coe's establishment violated the six-foot rule habitually since 2006.  San Diego finally pulled the plug, revoking her permit to operate. I am not going to explain operation of the no-touch and no-fondling rules. And I used to think that being a progressive, liberal state meant that everyone gets the freedom to express themselves however they want.

End the year with Bridgeport's Wage & Hour Litigation Conference

Bridgeport will hold its annual Wage & Hour Litigation & Management Conference on December 9, 2016, at the Millennium Biltmore Hotel.  Listen to a diverse faculty as they discuss recent, major developments in wage & hour class action litigation, including Spokeo v. Robins, PAGA, and other issues.

Dear Twitter, pull your head out

I customarily cross-post to Twitter when I write a new post here.  That may change soon.  The evidence I have examined is strongly suggestive that Twitter engages in viewpoint-based censorship by asserting its "standards" in a very non-uniform manner.  Twitter is a private company.  They can do this.  But I can vote with my feet if Twitter doesn't want to remain neutral in viewpoint suppression.  As a blogger, and irrespective of personal views of the speaker, I am sensitive to the long-term, dire consequences that will result if large businesses and/or governments succeed in limiting expression of entire swaths of opinions.  I was particularly disturbed when I read that Twitter had blocked the account of Glenn Reynolds, a pioneering law/politics/current events blogger known as Instapundit.  He made an ill-considered point in a rather rough way, but, at the same time, individuals advocating the murder of police officers go unpunished.  This is unjustifiable if one assumes that Twitter is viewpoint neutral in its censoring.

I don't approve of or condone all of the messages that have resulted in some high-profile account banning of late on Twitter, but the simple fact is that Twitter has permitted far worse commentary to remain on Twitter without consequence.  Maybe this behavior explains, in part, why Twitter is likely up for sale.

Another PAGA versus arbitration decision, this time from the Second Appellate District in Perez v. U-Haul Co. of California

Law is driven as much by unforeseen consequences as it is by any rational planning. The Labor Code Private Attorneys General Act of 2004 (PAGA) is exhibit one.  Over the last five or so years, inexorable advance of the Federal Arbitration Act looked as if it would cut a fatal swath through many class actions. But, somewhat unexpectedly, PAGA has served as a counterpoint in the wage & hour sector.  In Perez v. U-Haul Co. of California (Sept. 16, 2016), the Second Appellate District, Division Seven, affirmed the trial Court's ruling that U-Haul could not assert an arbitration agreement to compel the plaintiffs to individually arbitrate whether they qualified as “aggrieved employee[s],” to determine in arbitration whether they had standing to pursue a PAGA claim.

The Court agreed with Williams v. Superior Court, 237 Cal. App. 4th 642 (2015), which also held that California law prohibits the enforcement of an employment agreement provision that requires an employee to individually arbitrate whether he or she qualifies as an “aggrieved employee” under PAGA, and then (if successful) to litigate the remainder of the “representative action in the superior court.”  Slip op., at 11-12.  The Court concluded by dismissively rejecting the notion that the FAA can apply to claim belonging to a governmental entity or its designated proxy.

Gregg A. Farley, of the Law Offices of Gregg A. Farley, and Sahag Majarian, of the Law Offices of Sahag Majarian, represented Plaintiff and Respondent Sergio Lennin Perez; Larry W. Lee and Nicolas Rosenthal. of the Diversity Law Group, and Sherry Jung, of the Law Offices of Sherry Jung, represented Plaintiff and Respondent Erick Veliz.

Ninth Circuit examines arbitration and PAGA claims in Mohamed v. Uber Technologies, Inc.

The Ninth Circuit tackles a complicated set of arbitration issues in Mohamed v. Uber Technologies, Inc. (9th Cir. Sept. 7, 2016).  Among other things, the panel held that the District Court erred when it decided the question of arbitrability, since the question of arbitrability was delegated under the agreement to an arbitrator.  But the panel agreed that the defendants could not compel arbitration of the PAGA claim asserted in the case, severing that claim for further proceedings in before the trial court.  Finally, the panel agreed that a separate defendant not party to the arbitration agreement could not assert a right to enforce the agreement as an agent of Uber.