One measure of a decision's significance is the amount of commentary it generates. By that standard,Brinker Restaurant Corporation, et al. v. Hohnbaum, et al (July 22, 2008) is moving rapidly towards the rarefied air set aside for events like the passage of Proposition 64. The Complex Litigator has already run several posts on this decision, noting its issuance and summarizing coverage here and here. To help readers stay on top of the coverage and the dialog, I'm adding to the coverage collection:
In the last roundup, I noted that Class Action Defense Blog prepared a detailed synopsis of the decision, but I missed its coverage of the Governor's statement about Brinker.
Not to be outdone by Retail Law Observer, Restaurant and Food Service Blog, in a post of uncanny similarity to that by Retail Law Observer, also dicusses the shockwave created by Brinker.
Sheppard Mullin, suggesting that the Court of Appeal has "clarified" meal and rest break obligations, weighs in on the pro-employer Brinker decision here.
Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008) keeps on making news. Yesterday, I attempted to collect as much coverage as I could in one post. However, Brinker isn't remotely done making news. In today's edition of the Daily Journal (July 25, 2008), D. Gregory Valenza asks, "Meal and Break Class Actions: On the 'Brink' of Extinction?" (Subscription required.) Mr. Valenza's article follows closely on the heels of a July 23, 2008 article by Daily Journal Staff Writer Pat Broderick, which briefly summarized the core of the Brinker decision.
Mr. Valenza's analysis is substantially more thorough than the July 23, 2008 article, but it is, essentially, a further summary of the Court's primary holdings. While the article discusses several sources of law at issue in the Brinker decision, Mr. Valenza doesn't delve into the competing policies that are suggested but left unresolved by that opinion. In fact, no commentator has yet addressed the full set of economic incentives at play within and without the Brinker world view of wage & hour class actions. The Brinker opinion opens the door to this analysis but fails to step through. Instead, the Court picks one of many economic incentives at work to justify its conclusion: "It would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws." (Slip op., at p. 44, quoting Brown v. Federal Express Corp. (C.D.Cal. 2008) ___ F.R.D. ___ [2008 WL 906517 at *6].) In selectively discussing such incentives, the Court overlooks employer economic incentives to cheat the system and employee economic incentives to adhere to a meal break policy where job loss is the consequence for failure to do so. These incentives are likely far stronger, due to the amounts at issue, than one employee's desire to obtain an extra hour of pay.
If policy considerations are going to drive the judicial determination of the meal and rest break obligations, the Brinker decision must be viewed with some measure of skepticism until the full picture of incentives is faily presented and fully analyzed.
Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008) dropped a bit of a bombshell in the busy field of wage & hour class actions, at least judging by the early and numerous reactions. The Complex Litigator noted the issuance of the opinion shortly after it was posted to the California Courts website. Other blogs and media outlets followed with commentary and analysis, some of it extensive. Defense-oriented firms proclaimed it a much-needed victory, while plaintiff-side commentators lamented the irrationality of the decision and the need for speedy review by the California Supreme Court. To keep up with the dialog, a round-up of coverage, in no particular order, is in order:
Wage Law has two posts on the decision. The first post hits the highlights of the decision. The second post comments on the Governor's statement in support of the decision, noting that the fact of the Governor's comment, in and of itself, demonstrates that Supreme Court review is needed to "settle an important question of law."
California Workforce Resource Blog also has two posts on the Brinker. The first post is an extensive discussion of the decision, offered from the vantage point of a firm that represents employers. The second post provides a collection of comments about the decision.
What's New In Employment Law offers a decidedly partisan cheer for the Brinker decision, but notes that it is premature to celebrate.
The UCL Practitioner, one of the many counsel in Brinker, judiciously limits her comments to a refutation of quotes attributed to her about the decision in the Recorder. Importantly, Ms. Kralowec takes exception with the attributed statement that the decision "creates an appellate split that likely will ensure Supreme Court review." Ms. Kralowec notes that she would never be so presumptuous as to declare what the Supreme Court will, in the exercise of its discretion, decide to do about Brinker.
Wage & hour class actions have, for many years, been presented for certification in an entirely predictable manner. Since well before Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, wage & hour class actions habitually involved a war of employee declarations. The defendant typically submitted a taller stack of current employee declarations, while the plaintiff struggled to collect a smaller group of declarations provided mostly by former employees. This competing stack of declarations was then tossed up in the air for the Court to sort out. In Sav-on, it so happened that the trial court sided with the plaintiff's stack of declaration. But along the way, the dynamic has evolved.
The first major shift hit when the Supreme Court decided Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, reminding litigants that plaintiffs can discovery class member information before certification. Pioneer was then extended into the wage & hour realm with Belaire-West Landscaping, Inc. v. Superior Court (2007) 149 Cal.App.4th 554. The upshot was that plaintiffs had nearly as much access to the putative class as did defendants. However, this change, alone, did not necessarily do anything to deter the war of declarations. Instead, it armed both sides with the ability to assemble similar volumes of putative class member declarations.
This approach has not been without its critics. One Judge in the complex litigation panel in Los Angeles remarked during a hearing that there had to be a better way to evaluate wage & hour class actions for certification purposes. An example of possible alternative is provided by a recent certification Order from the United States District Court for the Northern District of California. In Otsuka, et al. v. Polo Ralph Lauren Corporation, et al. (C 07-02780 SI), Judge Susan Illston granted certification in spite of the typical declaration set offered by defendants. The Court's statement of facts suggests what information was held significant by the Court:
“Plaintiffs contend that defendants use a single employee handbook for all California stores, and that defendants’ policies and practices are standardized throughout California in both retail and outlet stores. See, e.g., TAC at ¶ 45.
(Opinion, at p. 2.) In contrast, defendants may have protested too much:
“Defendants vigorously object to class certification, arguing that plaintiffs fail to meet almost every requirement of Rule 23 for the main class and the two subclasses. As discussed below, however, defendants’ arguments primarily dispute the merits of plaintiffs’ claims and raise questions of fact that will not be resolved at this juncture, and the Court finds that class certification is appropriate because plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(3).
(Opinion, at p. 5.) Plaintiffs persuasively cast the action as one of common procedures and common legal inquiries:
“Plaintiffs persuasively argue that many questions of law and fact are common to the class, such as whether: (1) defendants’ policy of not compensating employees for time spent waiting for loss-prevention inspections violates California law or constitutes an unfair business practice; (2) time spent waiting for these inspections was “postliminary” or de minimis, and whether these federal standards would even apply to plaintiffs’ California law claims; (3) defendants breached their contracts with class members by failing to compensate them for time spent awaiting loss prevention inspections; (4) defendants had a policy of not providing or discouraging rest breaks; (5) defendants violated California law by failing to pay employees one hour’s wage when rest breaks were not provided; (6) defendants failed to maintain accurate pay records as a result of these alleged labor code violations; and (6) whether defendants’ failure to maintain accurate records was knowing and intentional. As these questions suggest, plaintiffs have sufficiently demonstrated that the commonality requirement of Rule 23(a) has been met with respect to the main class.
(Opinion, at p. 6.)
This approach, the focus on class-wide policies, has seen some increased use, with Court's accepting a theory of class liability that focuses almost exclusively on whether policies of the employer resulted in wage & hour violations, such as off-the-clock work or missed breaks.
As with a chess match, the adaptations and legal developments that have helped plaintiffs respond to the declaration onslaught will undoubtedly be countered with a new approaches from defendants. It will be interesting to see how those new approaches fare in practice.
The Otsuka Opinion can be downloaded here, or, you can view the embedded opinion in the acrobat.com flash viewer below:
I clearly recall reading a Daily Journal news article about Judge Sundvold's decision to "strike" class allegations on the defendant's motion, before plaintiffs in the case had filed their motion for class certification. In fact, in preparing this post, I found a copy of that March 12, 2007 article in a clippings file. (Don J. DeBenedictis, Precertification, Stores' Lawyers Crush Class, Daily Journal (March 12, 2007).) The article mentioned that the defendant had been contacting its store managers and obtained "several hundred" declarations from them. However, the article noted that the plaintiffs were not permitted by the court to contact those managers. I found the reported discussion very peculiar; it seemed that something had to be missing. I found it implausible that the Court would "not allow plaintiff to contact those current and former store employees or to see more than 5 percent of the declarations. . . ." It turns out that the reports were fairly accurate.
In re BCBG OVERTIME CASES (June 13, 2008) ___ Cal.Rptr.3d ___ is the published opinion of the Court of Appeal (Fourth Appellate District, Division Three) that followed from the Judge Sundvold's Order finding that the matter was unsuitable for class treatment. The Court of Appeal affirmed the Trial Court's decision.
First, some nomenclature in the underlying case was discussed by the Court of Appeal. In the Trial Court, the defendant apparently referred to its motion as a "Motion to Strike Class Allegations." The Court of Appeal discussed the misleading nature of this document title:
“BCBG’s “motion to strike” was not a motion to strike as used during the pleading stage of a lawsuit in both California and federal procedure. (Code Civ. Proc., § 435; Federal Rules Civ. Proc., rule 12(f).) It was a motion seeking to have the class allegations stricken from the complaint by asking the trial court to hold an
evidentiary hearing and determine whether Plaintiffs’ proposed class should be certified. “A motion to strike class allegations is governed by Rule 23, not Rule 12(f). Rule 23 requires that the Court decide the certification issue at the earliest time possible.” (Bennett v. Nucor Corp. (E.D. Ark., July 6, 2005, No. 3:04CV002915WW) [2005 WL 1773948] slip opn., p. 2, fn. 1.)
(Slip op., at p. 6.)
Next, the Court of Appeal examined the procedure utilized by the defendant. Although defense-initiated motions to deny certification are uncommon, the Court of Appeal concluded that they are permitted:
“Under both California and federal law, either party may initiate the class
certification process. In Carabini v. Superior Court (1994) 26 Cal.App.4th 239, a state
appellate panel explained the California class certification process: “‘As soon as
practical after commencement of a lawsuit that purports to be a class action, a hearing
must be held on whether it will be allowed to proceed as such. The hearing may be held
either on the motion of the representative to certify the case as a class action; or, on
motion by the party opposing the class to dismiss the class action allegations; or, by the
court on its own motion . . . .’ [Citations.]” (Carabini v. Superior Court, supra, 26
Cal.App.4th at p. 242.)
(Slip op., at p. 6.) In upholding the procedure permitted by the Trial Court, the Court of Appeal also cited California Rules of Court, rule 3.767 (formerly Rule 1857, before the excellent idea of rules with decimal points).
In reading the opinion, the Court of Appeal suggests, but does not say, that the plaintiffs may have made a tactical error in the issues raised on appeal. In particular, the plaintiffs did not appeal the trial court's rulings that prohibited the plaintiffs from discovering the contact information of store managers. In the text of the opinion, the Court said:
“BCBG’s motion to strike the class allegations was not made before the
Plaintiffs had a chance to conduct discovery on class certification issues. Such discovery
had been going on for some time, although some of the plaintiffs’ efforts had apparently
been thwarted by adverse rulings from the court. The propriety of these rulings is not
before us.
(Slip op., at p. 9.) Then, in a footnote immediately following the text, the Court said:
“We do not know why Plaintiffs have been unable to obtain the contact information for BCBG’s former and current managers. “Contact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case. (E.g., Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 820-821, 836, Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 799-800; see Code Civ. Proc., § 2017.010.)” (Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th 360, 373.) BCBG’s opposition to the request for a precertification notice seems to be based on its assertion that there is nothing improper about its precertification contact with the putative class members.
(Slip op., at p. 9, fn. 4.) Reading these passages, it sounds very much like the Court of Appeal would have welcomed the opportunity to reverse for further discovery that would include depositions of any declarant offered by defendant. Looking at the Court of Appeal docket, it doesn't appear that any attempt was made to address the Pioneer decision during the appeal, although, given that discovery rulings were apparently not raised in the appeal as discretionarily included issues, any attempt to do so may have been rejected.
While the procedure used here is uncommon, it isn't novel. The real lesson from this case is to be sure you make your record in the trial court in the unfortunate event that you have to appeal a trial court order - and then be sure you raise the issues on appeal. I'm not sure that the Court of Appeal would, in good conscience, tolerate a trial court ruling that allowed a defendant to put forth declarations of its own managers to defeat certification while refusing to submit those declarants to cross-examination at deposition.
(Un)covering this story requires some care, as I don't want The Complex Litigator black-listed by content filters, hence the oblique references to follow.
It has been reported on latimes.com and abajournal.com that four dancers of the quasi-prurient-arts variety are suing nightclubs over unpaid wages and tips. (Normal references omitted; see hyperlinks.) The dancers are challenging their classification as independent contractors, contending that they are employees, who signed "independent contractor agreements" under duress.
Several thoughts sprang to mind when I read this story. First, it is unclear from the reporting whether these dancers are so-called "go-go dancers" at mainstream nightclubs (the dancers you might see in clubs dancing in elevated cages as part of the effort at ambience) or are dancers at clubs of the tip-for-tat sort. Second, this sounds suspiciously like either (1) a wage & hour class action in the works, or (2) an effort to avoid the pitfalls one encounters in wage & hour class actions by attempting to generate interest in a "mass action" of similarly situated dancers. Either way, the press coverage of the filing will probably generate a significant number of inquiries about how to join the suit. Third, both articles talk about how the independent contrator "agreements were signed under duress and are therefore void." This blog has previously covered independent contractors misclassification cases, discussed previously here and here. The terms of an independent contractor agreement are far down the list of factors examined when attempting to determine whether an employment relationship exists. And, finally, I just wanted the chance to discuss news about dancers suing for better wages, and now I have.
Although it sounds a little bit like hearsay (or maybe just protection of confidential sources), Wage Law is reporting that some Superior Court judges, particularly in the Bay Area, believe that a "claims made" class action settlement should never be
approved in a wage & hour case. (The Emerging Trend Against Claims Made Wage & Hour Settlements (June 6, 2008) wagelaw.typepad.com.) One opinion that may be swaying the hearts and minds of judges is the 2007 Order of Judge William Alsup denying preliminary approval of a class action settlement in Kakani v. Oracle Corp. In his initial opinion, Judge Alsup said:
“Under the settlement, all wage-and-hour rights (not just overtime) of putative class members would be completely extinguished and replaced by an exclusive claims procedure. By expressly obligating itself only on a "claims-made" approach, Oracle would pay only those who submit claims up to a total of nine million dollars less all fees and expenses. Counsel wants $2.25 million in attorney's fees and $75,000 in expenses. In addition to their own shares of the settlement, $45,000 total would be paid to the three named plaintiffs as "incentive payments." Costs of administration would also be deducted. Because it will be a "claims-made" settlement, there will be no residue. All unclaimed amounts will revert to Oracle. Counsel now desire preliminary approval under Rule 23(e) and recommend notice be sent by mail to last known addresses of 1500 or so workers granting them a brief period for filing claims -- after which all of their claims and rights would be forever barred, even as to those who never receive actual notice or submit a claim.
The description of the terms is enough to telegraph where that one was going. But this should come as no surprise. Judge Alsup has made the news with his high-profile policing of class action settlements, particularly in options backdating suits. (See this blog's posts of April 27 and June 17.)
As to the substance of Wage Law's observation, that "claims made" settlements in wage & hour matters are falling into disfavor, my own observations tend to confirm that view. A primary argument for why "claims made" settlements in wage & hour matters are undesirable stems from the policies embodied by wage & hour laws generally. If wages were earned but not paid to each class member, then each class member should get those wages, not just those that file a claim. A core policy of labor laws is to ensure the full payment of all wages owed for work actually performed.
However, there are circumstances (probably not present in the Oracle suit) that weigh in favor of the "claims made" approach. For example, small classes with relatively modest individual recoveries provide the majority of their benefit in the correction of violations, not in the sums paid to class members. In those cases, it is cost efficient to reserve a modest class fund for those individuals willing to take the small step of submitting a claim. In cases where records do not allow for an exact calculation of monies owed to each employee, such as meal break cases where records are absent, a "claims made" approach can be described as a proxy for a declaration of damages.
California in particular faces another issue in wage & hour class actions: the population of unlawfully present aliens (they are not exactly "illegal" aliens, because if they are not citizens, then they are, by definition, aliens - and it isn't illegal to be an alien, it's just illegal to be present in the U.S. without legal permission). Employers whose workforce consists (allegedly) of unlawfully present aliens present a problem in wage & hour class actions - the workforce, if very transitory, may be hard to locate or unwilling to come forward to participate in any settlement. So you can easily face a situation where the wage & hour violations are pandemic but the class is hard to locate. In that instance, a "claims made" settlement is particularly suited to resolution. Given the usually low hourly wages of this particular employee demographic, such classes often also include the problem of a low recovery level that provides its own justification for a "claims made" settlement.
See the balance of Wage Law's post for more choice words from Judge Alsup and commentary about settlement structure.
As promised in this earlier post, Amaral v. Cintas (June 11, 2008) ___ Cal.Rptr.3d ___ deserves more commentary. By way of background, Amaral concerns a living wage ordance (LWO) passed by the City of Hayward. The LWO requires any company contracting with the City of Hayward to pay specified hourly wages to "any individual employed by a service contractor on or under the authority of any contract for services with the City. . . ." (Slip op., at p. 19.) On appeal, Cintas complained that the trial court erred in shifting the burden to require Cintas to prove which of its employees worked on the City of Hayward contracts in order to limit the scope of the class, certified by the trial court and defined as "all production and stockroom workers employed by Cintas at its facilities in Union City and San Leandro between July 1, 1999 and June 30, 2003." (Slip op., at p. 5.) The Court of Appeal held wage & hour class actions constitute a special, limited circumstance in which the burden of proof does not rest with the party that must establish the elements of a claim or defense:
“In general, “[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) On occasion, however, courts may alter the normal allocation of the burden of proof. (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346; see, e.g., Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1670 [burden of proof on issue of causation will be shifted to the defendant when circumstances make it impossible for the plaintiff to prove its case].) “ ‘In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.’ [Citation.]” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661.)
One long-standing application of burden-shifting occurs in the wage-and-hour context when an employer’s compensation records are so incomplete or inaccurate that an employee cannot prove his or her damages. When the United States Supreme Court addressed this problem with regard to claims under the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.), it observed that the remedial nature of the statute and public policy “militate against making [the evidentiary burden] an impossible hurdle for the employee.” (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687 (Anderson).) Considering that an employer has a statutory duty to maintain proper records of wages, hours and work conditions and is in the best position to know salient facts about the nature and amount of work performed, the court concluded it is appropriate to shift the burden of proof to the employer. (Id. at pp. 687-688.) Specifically, once an employee proves he or she “has in fact performed work” that was improperly compensated, and presents enough evidence to allow an inference as to the amount of this work, the burden shifts to the employer to prove the precise amount of work performed or to negate the inference drawn from the employee’s evidence. (Ibid.) The high court observed that applying the normal burden of proof in such circumstances would unfairly penalize an employee for the employer’s failure to keep proper records and would allow the employer to keep the benefits of the employee’s labors without paying full compensation. (Id. at p. 687.)
Relying on Anderson, California courts have shifted the burden of proof to employers when inadequate records prevent employees from proving their claims for unpaid overtime hours (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-728) and unpaid meal and rest breaks (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961-963). Anderson’s reasoning has also been applied to permit class action plaintiffs to prove their damages for unpaid overtime by the use of statistical sampling. (Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 746-751.
(Slip op., at pp. 24-25.) In wage & hour class actions, putative class member employees should use discovery tools at the earliest possible opportunity to ascertain what records do or do not exist. This should occur before attempting certification so that the Court can be apprised (1) of the availability of common evidence to prove class claims, or (2) the absence of evidence, coupled with a discussion of the burden shift endorsed by Amaral and others. In order to convice the trial court that a class action is superior, the plaintiff probably needs to explain the manner in which class claims would be established. If the employer has no records of hours worked, for example, the plaintiff would show evidence of the absence of records, the type of testimony that would be offered to show unpaid hours, and the presumption and burden shift triggered by that evidence.
The Court of Appeal (First Appellate District, Division Three) was presented with more than the usual mouthful of major legal issues in Amaral v. Cintas (June 11, 2008) ___ Cal.Rptr.3d ___. The case addresses issues of constitutionality of a living wage ordinance, class action issues, wage & hour issues, unfair competition claims, interest calculations, and attorney fee multipliers in class actions...to name a few. The introduction to the case provides an excellent preview for what lies below:
“These appeals concern the constitutionality and application of a living wage ordinance enacted by the City of Hayward (City) and incorporated into its municipal contracts. Although Cintas entered into such contracts with the City, it did not provide the minimum wages or benefits required by the ordinance to employees who worked in the company’s stockroom or laundry production facilities, which are located outside of Hayward. Plaintiffs, representing a class of such employees, sued Cintas for violations of the living wage ordinance, Labor Code section 200 et seq., Business and Professions Code section 17200 and breach of contract. The trial court rejected Cintas’s challenges to the constitutionality of the ordinance and, on cross-motions for summary judgment or summary adjudication, found that Cintas violated the ordinance, breached its contracts with the City, and violated several Labor Code provisions as well as Business and Professions Code section 17200. The court awarded back wages and unpaid benefits, imposed penalties for the Labor Code violations pursuant to the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), and awarded plaintiffs statutory attorneys’ fees and costs. Cintas challenges nearly every aspect of these rulings on appeal. In separate cross-appeals, plaintiffs dispute the trial court’s finding that Cintas’s conduct was not “willful,” challenge the court’s calculation of penalties, and claim they are entitled to recover additional costs.
(Slip op., at pp. 1-2.)
This case is worth several posts, but one item in particular, the analysis of retroactivity of the Labor Code Private Attorneys General Act (PAGA), is worth a first mention. Analyzing whether PAGA applied retroactively, the Court first noted that PAGA did not increase Cintas's liability, since the Labor Commissioner could have recovered the same penalties previously. Continuing, the Court said:
“It does not matter that Cintas’s wrongful conduct occurred before PAGA was enacted because the legal consequences of this conduct remained the same. “A statute is retroactive if it substantially changes the legal effect of past events. [Citations.] A statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment. [Citations.]” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7-8.) Nor does it matter that Cintas may have expected to be held accountable for penalties to the Labor Commissioner instead of to plaintiff class members. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment [citation] or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” (Landgraf v. USI Film Products, supra, 511 U.S. at pp. 269-270, fn. omitted.) Because PAGA did not increase Cintas’s liability for Labor Code penalties, its application in this case was not retroactive. (See Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 839 [defining a retroactive statute as one that operates to increase a party’s liability for past conduct].)
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
Multiple sources are now reporting that the DLSE has already updated its materials to require hearing officers to follow Brinker Restaurant Corporation, et al. v. Hohnbaum, et al (July 22, 2008). Reporting sources include California Labor & Employment Law Blog, What's New In Employment Law, and Wage Law. Adding to the general coverage, Storm's California Employment Law blog has a brief but insightful obsevation about the fact that the DLSE's rush to implement pro-employer policies may ultimately harm them. 
