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California Supreme Court: Waiting Time Penalties are..Penalties!

I know, sounds obvious. But folks were claiming that waiting time penalties, like meal period penalties, are a form of wage.  They were making this argument to permit claims for waiting time penalties under California's unfair competition law, because that law has a four year statute of limitations.

No sale, said the California Supreme Court in Pineda v. Bank of America (opinion here). In that case, Pineda received his wages four days late. He brought a class action for waiting time penalties. on behalf of everyone who was paid late under Bank of America's final pay policies. 

Pineda argued that he should be able to sue for waiting time penalties under California's unfair competition law (Bus. Prof. Code section 17200).  The Supreme Court rejected that argument because waiting time penalties are not "restitution," the only time that money is recoverable under the UCL.  Plaintiffs wanted to use the UCL to benefit from that law's four-year statute of limitations.

But the Supreme Court giveth, and taketh away.  The other issue decided today is that the statute of limitations for waiting time penalties is not affected by whether the employer ultimately paid the wages, albeit late.

The lower courts dismissed the case because he did not file his case within a year of his termination. The lower courts applied case law like in McCoy v. Superior Court (2007) 157 Cal.App.4th 225, 229-230. There, the court of appeal held a one-year statute of limitations applies to waiting time penalty claims if the wages are paid as of the time of suit. 


The Supreme Court rejected McCoy and held that in all instances, the waiting time penalty statute, Labor Code Section 203, imposes the same statute of limitations. That section says that the statute of limitations for waiting time penalties is the same as the limitations period applied to the underlying wage claims.  The Supreme Court said that rule applies whether the wages are paid or not at the time of suit.

DGV

Arizona Medical Marijuana Law

So, there was a big debate over what would happen in the workplace if California's Prop. 19 were to pass. If you have a short memory, that was the initiative to basically legalize personal use of marijuana.  Well, that initiative failed to pass back on November 2.

In Arizona, on the other hand, the voters passed their own Prop. 203. Text is here.
Prop. 203 legalizes certain "medical marijuana," making AZ the 15th state to do so. But AZ's new law expressly protects medical marijuana users at the workplace:

6-2813. Discrimination prohibited
***. 
B. UNLESS A FAILURE TO DO SO WOULD CAUSE AN EMPLOYER TO LOSE A MONETARY OR LICENSING RELATED BENEFIT UNDER FEDERAL LAW OR REGULATIONS, AN EMPLOYER MAY NOT DISCRIMINATE AGAINST A PERSON IN HIRING, TERMINATION OR IMPOSING ANY TERM OR CONDITION OF EMPLOYMENT OR OTHERWISE PENALIZE A PERSON BASED UPON EITHER:
1. THE PERSON'S STATUS AS A CARDHOLDER.
2. A REGISTERED QUALIFYING PATIENT'S POSITIVE DRUG TEST FOR MARIJUANA COMPONENTS OR METABOLITES, UNLESS THE PATIENT USED, POSSESSED OR WAS IMPAIRED BY MARIJUANA ON THE PREMISES OF THE PLACE OF EMPLOYMENT OR DURING THE HOURS OF EMPLOYMENT.


36-2814. Acts not required; acts not prohibited 
A. NOTHING IN THIS CHAPTER REQUIRES:
* * *
3. AN EMPLOYER TO ALLOW THE INGESTION OF MARIJUANA IN ANY WORKPLACE OR ANY EMPLOYEE TO WORK WHILE UNDER THE INFLUENCE OF MARIJUANA, EXCEPT THAT A REGISTERED QUALIFYING PATIENT SHALL NOT BE CONSIDERED TO BE UNDER THE INFLUENCE OF MARIJUANA SOLELY BECAUSE OF THE PRESENCE OF METABOLITES OR COMPONENTS OF MARIJUANA THAT APPEAR IN INSUFFICIENT CONCENTRATION TO CAUSE IMPAIRMENT. 
B. NOTHING IN THIS CHAPTER PROHIBITS AN EMPLOYER FROM DISCIPLINING AN EMPLOYEE FOR INGESTING MARIJUANA IN THE WORKPLACE OR WORKING WHILE UNDER THE INFLUENCE OF MARIJUANA.





Rad, huh?  So, you can't smoke pot AT work. The employer doesn't have to give up federal dollars to permit users to have pot in their system. ...  But generally, (1) no taking action based on positive drug tests unless the level in the blood suggests impairment (2) employers don't have to let you work "impaired" (stoned) or under the influence (buzzed?).  


I guess we're going to find out what "impaired" and "under the influence" means through a series of regulations that are supposed to be issued within the next few months.  


Remember, this isn't a general legalization of marijuana. It will apply only to "qualified" patients who are certified as having the requisite medical conditions. 


Good luck Arizona employers!  

DGV

"Suitable Seating" Class Action Goes Forward

Retailers must provide "suitable seating" in accordance with the California Industrial Welfare Commission's Wage Order 7-2001, section 14. It says: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."

Eugina Bright worked for 99 Cents Only Stores. She brought a class action alleging that, as a cashier, the company could reasonably have provided her with a seat suitable for cashiering. She sought penalties under PAGA (Private Attorneys General Act of 2004), claiming that the Wage Order violation supported PAGA penalties.

The trial court held that Ms. Bright was not "underpaid" and, therefore, could not collect penalties under Section 20 of the Wage Order. She also could not collect PAGA penalties, the trial court believed, because PAGA's extra "catchall" penalty does not apply when there is an applicable penalty in place. Sort of a "gotcha" ruling, which I admire.

But the court of appeal did not share my sense of irony, holding that PAGA penalties are available for wage order violations, even if Wage Order Section 20 penalties do not apply:

Section 2699, subdivision (f) makes its civil penalty applicable to violations of “all provisions of this code except those for which a civil penalty is specifically provided.” (§ 2699, subd. (f).) Section 1198, the code section Bright contends was violated, contains no civil penalty. (See § 1198.) Nowhere in the Labor Code is a civil penalty specifically provided for violations of the suitable seating requirement incorporated in section 1198. Thus, section 2699, subdivision (f), by its terms, allows for a civil penalty for violations of section 1198 based on failure to comply with the suitable seating requirement.
The case is Bright v. 99 c Only Stores, Inc. and the opinion is here.

DGV

Annual Legal Update - Web or Live

The end of the year is here. There are new laws, new regulations, and new court decisions to digest.  How will you keep up? How will you know what to do?  Please, somebody help you!  Aaargh.

Relax. Shaw Valenza is here to ease your worried mind, smooth your furrowed brow, apply myrrh to your foreheads. OK, I wouldn't know where to get any myrrh now that Prop. 19 did not pass.  Myrrh dealers... get the word out.

Anyway, wise men -- and women -- from all over are going to get even wiser when they attend our annual Employment Law Update!  Statutes, regulations, case law, and how to's. Best news yet, Jennifer Shaw herself is presenting.  And such a deal.

Here's a link for more information.  Click it.  Now.  Ok, now.
http://www.shawvalenza.com/training_sessions.php?id=81

DGV

Blog refresh - Blogroll dead

Just a quick note that I slightly upgraded the design of the blog. If you have feedback please let me know.

I just learned that my list of interesting blogs (blogroll) was destroyed, because the "blogroll" company that hosted it "ceased operations."  So, if you have suggestions for additions to my blogroll, please let me know. Also, if you used to be on my blogroll and would like to be added again, please send me a note.

DGV

Court of Appeal: No Attorney Present at Plaintiff's Mental Examination

The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.
Steven Braun was a plaintiff in a discrimination and harassment case against Toyota. He claimed significant emotional distress as a result of the conduct. Toyota arranged for a mental examination. Braun's attorney sought to impose certain conditions, including that it be taped, and that the attorney could accompany Braun to the exam and wait in an adjoining room. The doctor balked at this condition, as did Toyota. The Superior Court, however, allowed it. So, Toyota sought a "writ" - a mid-litigation appeal - overturning the Superior Court's decision.

The Court of Appeal granted the writ, which almost never happens in discovery disputes. The court said that although an attorney is not always prohibited from attending an examination, he or she must make some evidentiary showing of need. Toyota, on the other hand, showed (1) that the examination's scope was limited by court order (2) that the doctors believed the attorney's presence could influence the examination. The court also noted that medical professionals conducting such examinations are entitled to a presumption they will act properly.

The case is Toyota v. Superior Court and the opinion is here.