Class of "technical writers" seeking overtime certified in suit against Sun Microsystems

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In a case that may draw renewed attention to wage & hour practices at high tech businesses, Santa Clara Superior Court Judge Jack Komar certified a class comprised of "technical writers" employed by Sun Microsystems since 2002.  Plaintiff Hoenemier is challenging the company's practice of treating Hoenemier and about 300 other writers as exempt from state labor laws governing overtime and breaks.  At issue in this case is the overtime exemption applicable to "computer professionals," found at Cal. Labor Code section 515.5.  "If the company loses, it could owe 'well over $20 million' in back pay, according to Hoenemier's attorney, Aaron Kaufmann of Walnut Creek."  (Brandon Bailey, Sun overtime lawsuit a class action (May 15, 2008) www.mercurynews.com.)

Sun contends in the suit that it is an industry-wide practice to classify technical writers as exempt under section 515.5.  If the Court ultimately determines that Sun is wrong in its classification, the whole industry will face a wave of wage & hour lawsuits, given that suits for back wages remain viable, irrespective of a corrective classification going forward.

Other coverage:

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Cal Biz Lit blog adds The Complex Litigator to its blogroll

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Given that I have appreciated the writing and analysis on Cal Biz Lit, I note with gratitude the fact that The Complex Litigator has passed muster as a blog that meets with Bruce Nye's approval.  You can also take a look at Bruce Nye's firm, Adams Nye Trapani Becht LLP at adamsnye.com.  Thank you, Bruce.

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ClassActionBlawg.com provides a weekly collection of class action blog posts

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Paul KarlsgodtClassActionBlawg.com has just posted a round-up of class action blawg articles from the last week or so.  This week's round-up includes one article by The Complex Litigator, so a special thanks for that.  ClassActionBlawg.com includes these useful round-ups once a week, but the most recent collection of posts is particularly thorough; it makes for a great launching point to look around the blawgosphere for topical posts on class actions.

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Law review article contends that puntive damage claims have been precluded in class actions

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Inferential preclusion of punitive damage claims in many class actions is the premise of a forthcoming Law Review article by Professor Sheila Scheuerman of the Charleston College of Law. (Scheuerman, Sheila B., Two Worlds Collide: How the Supreme Court's Recent Punitive Damages Decisions Affect Class Actions (2008, forthcoming) Baylor Law Review, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1127691.) Although self-described as an alternative assessment of the impact of recent Supreme Court punitive damage decisions, the article ultimately echoes the refrain advanced by, among others, members of the defense bar immediately following the United States Supreme Court’s decision in Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007).

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Showing laudable common sense in Bufil v. Dollar Financial Group, Inc., a California Court of Appeal limits Alvarez v. May Dept. Stores Co.

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Greatsealcal100I must confess that, of all decisions for which I may take blame or credit, Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223 sticks in my craw as the most abhorrent and most memorable (by a slight margin).  Not that I didn't give Alvarez my all; I have no shame there.  But I lost the appeal.  Then my Petition for Review was denied by the California Supreme Court (though Justice Kennard was of the opinion that it should have been granted), and I even went so far as to file a Petition for Writ of Certiorari with the United States Supreme Court.  It was, of course, denied.  The oral argument in the Court of Appeal lasted something like 45 minutes (it went way over the allowed time), and about 40 minutes of it were non-stop questions from all three justices.  It was brutal, educational, and intensely disappointing.  Mostly disappointing.

Enter Bufil v. Dollar Financial Group, Inc. (April 17, 2008, ord. pub. May 13, 2008), issued by the First Appellate District, Division Four.  The introduction to the opinion summarizes the legal terrain:

“On the heels of the denial of class certification against employer and respondent Dollar Financial Group, Inc. (Dollar), in a suit alleging violation of meal and rest break labor laws, appellant Caren Bufil pursued class certification in a new suit which significantly narrowed the class definition. Relying on the doctrine of collateral estoppel, the trial court granted judgment on the pleadings in favor of Dollar. Also relying on this doctrine as well as traditional concerns relevant to the issue of certification, the court denied Bufil’s motion for class certification. We reverse.

(Slip op., at p. 1.) 

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COMPLEX TECH: Update on IronKey USB Security and Encryption Tool

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Ironkey_logo_web225A couple of days ago, I posted information about the IronKey USB key, a great solution for data encryption.  At the end of my post, I also mentioned the fact that my request for law firm specific information had not received a response.  I first want to note that I have since learned that my inquiry (1) didn't go to the right person, and (2) wasn't sent through the expected channel.  As soon as IronKey's team learned about my request for information through my post on this blog, I received a courteous and prompt response to my inquiry (to the extent they could do so without violating client confidences, an issue they apparently take as seriously as do lawyers).

I can report that several "BigLaw" firms have already deployed the IronKey to their attorneys.  Without knowing the identities of the firms, it is still safe to say that large firms reside at the conservative end of the spectrum.  If the IronKey won over the IT departments of some big firms, it should be able to impress everyone.  The IronKey just strikes me as a solution that is almost customized for the needs of law firms.

I also need to mention the fact that IronKey offers an managed enterprise solution that is particularly useful for larger deployments of IronKey USB devices.  The managed enterprise service provides an Administrator IronKey that allows recovery of forgotten passwords.  When the Administrator IronKey and one of the deployed keys are both attached to a computer, the Administrator can access a secure site to "reset" the password on the otherwise useless IronKey.

I don't usually get too excited by new technology tools, because, from my perspective, there is always something more they can do.  It's easy to be an armchair critic.  But here, it's hard to see where IronKey missed the boat with this device.

I strongly suggest that you at least take a look at the Ironkey.  Considering everything under the hood, it is very reasonably priced, and IronKey offers some additional features that I didn't cover in my prior post.

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A second round of thanks to all blog visitors and supporting blogs

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It took about 30 days to reach the 1,500 visit mark.  The next 1,500 visits took about 15 days.  I attribute much of the daily visit growth to the support of a number of very successful blogs, including Wage Law, UCL Practitioner, The California Blog of Appeal, ClassActionBlawg.com, and California Punitive Damages.  Other sites, like Overlawyered.com, also directed quite a bit of traffic here to read specific posts.  Justia.com pushed a fair bit of traffic here as well.  Thanks to everyone, and if I didn't list your blog as a source of referrrals, it isn't because I don't appreciate it, it is because I'm out of time to post right now.

Thank you for your support and consideration,

H. Scott Leviant, on behalf of The Complex Litigator

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In Antelope Valley Press v. Poizner, the Borello “right to control” and related factors were again applied to find an employer-employee relationship

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Greatsealcal100Because employers reap substantial savings when independent contractors can satisfy the needs of a business in place of employees, there is a financial incentive to misclassify employees as independent contractors. Decisional authority agrees that, due to the “infinite variety of service arrangements,” it is difficult to formulate a single test or standard that can determine whether an individual should be classified as an employee or an independent contractor. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [256 Cal.Rptr. 543].)

In Borello, the California Supreme Court collected its decisions on the determination of an employment relationship. Borello held that “ ‘[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired....’ ” (Borello, at p. 350.) Borello then discussed “secondary” indicia of the nature of the service relationship. First, Borello said that “ ‘[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause.’ ” (Ibid.) Borello then summarized other “secondary” indicia of employment status:

Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.

(Borello, at p. 351.) Since Borello, defendants have chafed at reliance upon Borello outside of the worker’s compensation context. Those challenges have uniformly been rejected:

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COMPLEX TECH: The Ironkey USB key delivers unprecedented security for critical data

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Ironkey_logo_web225Recently, The Complex Litigator discussed the topic of data encryption to protect confidential client data.  Now, as part of the ongoing COMPLEX TECH series, The Complex Litigator will cover various data encryption solutions.  In this post, I will profile what appears to be nothing more that a slightly-larger-than-normal USB key, the Ironkey.

"Ironkey" is appropriate for a number of reasons.  First, the IronKey is designed so that it cannot be physically tampered with or disassembled by a determined hacker.  The IronKey is encased in a rugged metal housing, not plastic. It is one of the strongest USB devices you can buy.  The interior of the IronKey is filled solid with an epoxy-based potting compound. This seals in all the components and prevents the IronKey from being crushed, even under extremely high pressure. The process of trying to remove encrypted data from the flash chips would be extremely difficult, time-consuming and almost certainly destroy the chips and connections inside. Such an attempt would cause permanent, noticeable damage.

The IronKey has tested, passed, and exceeded military waterproof standards (MIL-STD-810F).  The Ironkey can survive a swim in the pool or a trip through the washing machine.

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Utilizing the rarely seen "defendant class" approach, a Mother's Day class action is filed against ungrateful children

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In honor of Mother's Day, The Complex Litigator has tracked down something special.  According to a press release on PR*Urgent, a press release service, "[a] special Mother’s Day class action suit has been filed against ungrateful children everywhere. . . ."  (See, Mother’s Day Class Action Suit Against Ungrateful Children (May 9, 2008) www.prurgent.com.)  Although not mention in the press release, the fact that this class action has been brought against "ungrateful children everywhere" suggests that, in addition to a conventional plaintiff class of mothers, the creative counsel that devised this action must have a defendant class in mind as well.  Of particular interest will be the method by which notice is provided to the defendant class if the action is certified.  Perhaps via printed notice on the side of Happy Meals.  That would be the functional equivalent of individual notice.

Additional facts are included in the complaint:

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