Gonzalez v. Downtown LA Motors agrees with Armenta and rejects compensation averaging on minimum wage claims

In Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005), one Court of Appeal (2/6) concluded that the governing Wage Order required payment of the minimum wage during every hour worked (as opposed to dividing compensation by total hours worked to check whether the average​ hourly compensation exceeds minimum wage).  In Gonzalez v. Downtown LA Motors, LP, et al., (April 2, 2013), the Court of Appeal (Second Appellate District, Division Two) examined the same issue, and reached the same conclusion.

In Gonzalez, the defendant compensated its automotive service technicians on a what was characterized as a “piece rate” basis for repair work.  The question before the trial court was whether the defendant was also required to pay those technicians a separate hourly minimum wage for time spent during their work shifts waiting for vehicles to repair or performing other non-repair tasks directed by the employer.  The defendant argued that it was not required to pay the technicians a separate hourly minimum wage for such time because it ensured that a technician's total compensation for a pay period never fell below what the defendant called a “minimum wage floor,” calculated as the total number of hours the technician was at work during the pay period (including hours spent waiting for repair work or performing non-repair tasks), multiplied by the applicable minimum wage rate. The employer did so by supplementing a technician's pay, if necessary, to cover any shortfall between the technician's piece-rate wages and the minimum wage floor.  The trial court did not find this persuasive, concluding that each hour had to be separately compensated at above minimum wage, even if other hours were compensated well above the minimum wage.  The Court of Appeal agreed.

In its analysis of Armenta, the Court observed:

Finally, the court in Armenta considered "the policies underlying California's minimum wage law and regulations" which "reflect a strong public policy in favor of full payment of wages for all hours worked." (Armenta, supra, 135 Cal.App.4th at p. 324.) Given that public policy, the court concluded that a method of "averaging all hours worked 'in any work week' to compute an employer's minimum wage obligation under California law is inappropriate." (Ibid.) The court in Armenta held that use of such an averaging method to determine an employer's minimum wage obligation violates California law and that "[t]he minimum wage standard applies to each hour worked by [the employees] for which they were not paid." (Ibid.)

Slip op., at 11-12.​  Gonzalez, when coupled with Armenta, solidifies the construction of California's minimum wage obligation.

California Supreme Court activity for the week of March 18, 2013

​I overlooked last week's Conference Results from the California Supreme Court until today, but better late than never.​  On March 20, 2013, the Court denied review in Bradley v. Networkers International (December 12, 2012).  See earlier post here.  This is a significant result, as the case applies Brinker to a certification analysis in the context of whether workers were misclassified as independent contractors.

MCLE credit for Episode 1 of Class Re-Action is now available

Now that I have State Bar approval of Episode 1 as MCLE, I have flipped the switch on the MCLE store.   If you listened to Episode 1 and feel like picking up an hour of credit for your time, you can purchase the credit here.  Remember, you don't have to do anything to listen to the Class Re-Action podcast, but any time that you would like credit for episodes that you have listened to, you have that option open to you.​

Episode 2 of the Class Re-Action podcast is now available

Episode 2 of the ​Class Re-Action podcast is now available.  After sorting out some audio issues, I can say with confidence that the sound is massively improved upon over Episode 1.  Episode 2 should be available through iTunes and the XBox music store very soon, if they aren't there already.

The Class Re-Action studio

While I'm uploading Episode 2, I thought I'd share a picture of the recording studio before we got down to business this morning.​

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Class Re-Action Studio

Episode 2 of the Class Re-Action Podcast records tomorrow

Show two should be in the can by early afternoon on Sunday, March 24, 2013.  With any luck, I will have it online later in that evening, ready for downloading wherever finer podcasts are found.

Ninth Circuit notices that we still have some constitutional rights, holding that rights exist at border crossings

I was concerned when United States v. Cotterman ​was originally decided by the Ninth Circuit in 2011.  In that decision, the panel held that personal property, such as laptops and other digital storage devices, could be transported to a secondary site for a thorough inspection, even with no reason for suspicion.  En banc review was granted in 2012.  On March 8, 2013, in United States v. Cotterman ​(9th Cir. 2013), the Court, en banc, modified that terrible holding.

​The Court observed:

Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles,​ Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography.

Slip op., at 5-6.​  Framing the issue, the Court continued:

Although courts have long recognized that border searches constitute a “historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained,” United States v. Ramsey, 431 U.S. 606, 621 (1977), reasonableness remains the touchstone for a warrantless search. Even at the border, we have rejected an “anything goes” approach. See United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc).​

Slip op., at 7.​  The Court recognized that a search of electronic devices must be reasonable, even at the border, given the character of digital information:

​Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Slip op., at 22.​   "This is not to say that simply because electronic devices house sensitive, private information they are off limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property."  Slip op., at 24.

In this case, the majority concluded that, under the circumstances of the case, the search was reasonable.​  Regardless, I am encouraged that, as of now, the mere use of a password to protect data does not provide a reasonable basis for detailed inspection of a computer.

Happy 5th Birthday to The Complex Litigator!

To celebrate surviving 5 years (holy smokes!) of blogging here at The Complex Litigator, I have rolled out a new look and feel to this site (now live), put the pipes in place to offer MCLE credit for the Class Re-Action Podcast, ​and generally tinkered quite a bit behind the scenes.

The second episode of Class Re-Action will be recording March 24th and available some time that evening for direct download, for streaming, and through the iTunes and XBox stores.​  I will get the MCLE store up and running shortly.  The podcast will remain free; you will have the option of purchasing MCLE credit for a show that you have listened to at your discretion.  The sales are intended to offset the substantial cost of getting the Class Re-Action podcast off the ground with recording equipment and the ongoing costs of providing guests with higher quality (recording quality) microphones for better sound control.  I think it will be more like a tip jar than a commercially viable endeavor.  I just want to come close to break-even.

First Class Re-Action Podcast approved for MCLE credit

I will have more announcements related to this auspicious event, but I just received my notification today that the Class Re-Action Podcast, Episode 1, has been approved for MCLE credit.  The short version is that I have been preparing to move this blog to the newer Squarespace v6 platform to accommodate my ability to offer MCLE credits through the blog.  I will soon be switching to the new platform, and the look will change a bit when I do implement the switch.​

Constitutional Crisis in our Courts: One step closer to meltdown

I am informed that, beginning June 2013, there will be NO court reporters for civil matters in the Los Angeles Superior Court.  Part-time court reporters will be laid off, and all full-time court reporters in civil will transfer to the criminal courts.

How much longer will we allow the two funded branches of government to continue down this path?  This is not constitutional.  Also, please be advised that I am not interested in hearing that California doesn't have enough money to correctly fund the Courts.  We have plenty of money.  The federal government has plenty of money (the highest tax receipts in history this year).  Lots of money.  Money everywhere.  It's how they SPEND that money.  Rather, it is how WE spend that money, since we own the bums running things off the cliff for us.  That's the problem - how the money is spent.  If the constitution of this state is to be treated like a bird cage liner, then it is no wonder that the institutions built upon it all look like crap now.

I wonder how much longer we will be able to retain the best of our judges.​