feature
during unpaid meal periods that are automatically deducted from work time. They often include claims for other off-the-clock work, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Employee Retirement Income Security Act (ERISA) and breach of contract.
Claims for miscalculation of the regular rate of pay for short and long shifts are also prevalent in the health care industry. See, e.g., Parth v. Pomona Valley Hosp. Med. Ctr., 584 F.3d 794 (9th Cir. 2009); Huntington Mem’ Hosp. v. Superior Court, 131 Cal. App. 4th 893 (Calif. 2d Ct. App. 2005). In time, many of these claims will disappear or become more tailored as court decisions signal the types of claims that will support class certification and survive motions for summary judgment.
One consequence of class actions is the economic incentive they provide for legal compliance. Wage-and- hour audits, improved policies and closer monitoring of timekeeping and pay practices are increasing. Some early versions of these systems with automatic meal period deductions have themselves fostered litigation. Nonetheless, as technology evolves, more accurate time reporting is inevitable.
The use of technology in the workplace has also facilitated widespread employee training online. Interactive programs expose managers and employees to workplace vignettes teaching wage-and-hour compliance requirements. Employees electronically pledge to report perceived violations such as unpaid time and receive assurance that their complaints will be welcomed without retaliation. In addition to gaining compliance, such training and complaint procedures increase the likelihood of establishing legal defenses and damage mitigation. However, as training becomes the norm, “failure to train” will likely be urged as a cause of action. Such compliance programs and training will likely become standard and either recommended or required by the DOL.
It is likely that wage-and-hour class actions will continue to increase dramatically during the next two years, especially outside California. For example, increased attacks on independent-contractor classifications are likely as laws and regulations change and government tax collection efforts intensify.
Beyond the next two years, wage-and-hour class actions will probably still be very significant, but their impact will decline. Compliance efforts will reduce the likelihood of litigation. Judicial decisions will answer decades-old questions,
18 CA Employer September 2010
and there may be greater judicial consideration of the merits of the underlying claims as part of the class- certification process. Additionally, as wage-and- hour class actions become more commoditized and predictable, settlements will become easier. For cases not settling, increased predictability will increase the willingness to go to trial. Yet for the foreseeable future, it is unlikely that federal legislation will streamline wage-and-hour laws. In many situations, old laws and complicated rules will continue to make full compliance very challenging, especially in California.
During the coming decade, complex new issues will emerge testing the definition of compensable work as BlackBerrys, iPhones, iPads and multiple other devices evolve. What jurisdiction and law cover compensation requirements of virtual workers? When does work start and end for such workers? Are workers exempt who accomplish complex professional tasks with artificial intelligence systems that require increasingly simple human commands?
Eventually there will be greater recognition of the necessity for new wage-and-hour laws reflecting the reality of the digital workplace. It is also inevitable that technology will make national borders less significant as “digital work,” remotely controlled robotics and employee “avatars” perform more tasks. Through the imagination and filmmaking of James Cameron, we can better envision workplaces where mental and physical tasks are performed across great distances.
Lawyers who are concerned about becoming idle as the wage-and-hour class action boom subsides need not worry. The class action tool has become such an established fixture of employment law that it is unlikely to fall into disuse. ERISA class actions have already increased as the population matures and retirement funds fail to meet expectations. New types of employment law class actions will follow. The creativity of the plaintiffs’ bar is unlimited, and the resolve of the defense bar to challenge class certification is perpetual.
* * * * * Garry Mathiason is vice chair of Littler Mendelson, which has defended more than 700 wage-and-hour class actions. He is based in the San Francisco office. Mark Thierman is the founder of the Thierman Law Firm, based in Reno, Nev., who has recovered more than $750 million from wage-and-hour class action settlements and verdicts.
Reprinted with permission from the April 19, 2010 edition of THE NATIONAL LAW JOURNAL
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26