On Friday July 2, 2010 the Sacramento County Superior Court granted Goyette & Associates’ motion for class certification in the parity pay lawsuit for the California Correctional Supervisors Organization (CCSO) against the California Department of Corrections and Rehabilitation (CDCR) and the California Department of Personnel Administration (DPA). Under the difficult multi-part ‘test’ to certify a class action pursuant to state law (CA CCP section 382), the Court found that G&A had established all the required elements to show that named Plaintiffs CCSO and Lieutenant Chris Gold adequately represented all ‘similarly situated’ CDCR Sergeants and Lieutenants who are CCSO members under a certified class. Based on the factual and legal arguments made by G&A Attorneys Gary Goyette and Francesca Gianuario, the Court certified the class and rejected CDCR/DPA’s arguments that the suit should not proceed as a class action, but should be limited to a Petition for Writ of Mandate. The lawsuit now proceeds as a certified class action for CCSO’s effort to obtain retroactive pay for a year and a half period in which CDCR provided retroactive pay to the rank-and-file Correctional Officers, but refused to provide the same or any similar pay or benefits to the Sergeants and Lieutenants. The Court’s decision to grant the motion and certify the class reflects the detailed hard work and experience of G&A’s civil litigation attorneys dealing with class actions.
Archive for the ‘Class Action’ Category
G&A Obtains Class Certification for Parity Pay Case
Thursday, July 8th, 2010GARY GOYETTE TO ARGUE BEFORE THE U.S. SUPREME COURT?
Thursday, March 11th, 2010Some employers wont’ quit, even when it’s clear they have lost on a wage & hour dispute with employees represented by Goyette & Associates. As summarized previously on this Blog, Gary Goyette is representing three tugboat Captains and deckhands formerly employed by Marine Express, a San Francisco Bay Area company, in an lawsuit seeking overtime pay for hours worked in excess of eight hours per day. Gary is also representing Jerrold Karmin, an individual tugboat Captain and also a former Marine Express employee, in a related case; it is this case which may be going to the U.S. Supreme Court.
Mr. Karmin initially filed his overtime claim against Marine Express with the California Labor Commissioner and obtained a decision in his favor. Marine Express then ‘appealed’ this decision to the state Superior Court. After the Superior Court ruled that an exemption from overtime pay under the federal wage law invalidated or “preempted” the California wage law for overtime pay, Goyette & Associates took the matter to the California Court of Appeal for Mr. Karmin. The California Court of Appeal agreed with the Labor Commissioner (and disagreed with the Superior Court), ruling that the federal exemption does not preempt state wage law for Mr. Karmin since all his work for Marine Express occurred within California borders (and most of his work occurred in the San Francisco Bay). Unhappy with this result, Marine Express tried to take the matter to the California Supreme Court by filing a Petition for Review; the state Supreme Court refused to hear the matter.
Still unhappy with the result, Marine Express has now filed a Petition for Writ of Certiorari to the U.S. Supreme Court in an attempt to have the highest Court in the land hear Mr. Karmin’s case. While the odds of the U.S. Supreme Court accepting the case are very, very low, Gary Goyette and Goyette & Associates welcome the opportunity to argue before the U.S. Supreme Court. Gary Goyette is confident that even with a 7 to 2 republican majority, the U.S. Supreme Court would agree with the CA Court of Appeal and find that when all of an employee’s work occurs within the state, a federal wage law exemption from overtime pay cannot and will not override California’s requirements for overtime pay.
G&A Looking Back at 2009 and Forward to 2010!
Tuesday, January 5th, 2010Goyette & Associates is thrilled to have achieved unprecedented growth in 2009 and look forward with excitement to the prospect of what we will achieve in 2010!
Our Labor and Employment Divisions were successful in dozens of internal investigations, Skellys, arbitration hearings and disciplinary matters. We can boast successes at the bargaining table even in this volatile economic climate due to the expertise of our Labor Representatives. To review some of our Labor and Employment successes click here.
Gary Goyette saw huge wins and progress in our Wage and Hour division. You can review some our recent victories here.
G&A’s Lead Civil Litigation attorney Joy Rosenquist, received press coverage on the Neri matter , one of her many cases. To read the Modesto Bee article pertaining to this Brady issue click here.
Gary Goyette is once again recognized as one of California’s preeminent lawyers regarding Fair Labor Standards Act (FLSA) matters and complex class actions. The attorneys of this division have been highly successful in 2009 and look forward to upcoming decisions pending in 2010. For a review of G&A’s Complex Legal or Class Action successes, click here.
With 2 highly publicized trials, Paul Q. Goyette added yet another win to his 15 year winning streak in State and Federal Courts and established himself further as one of California’s preeminent high profile criminal trial attorneys. For articles related to the Deleon and Newlin trials, click here.
Rafael Ruano, managing associate for G&A’s Estate and Business Planning division, saw exponential growth this year and is planning to participate in a 30 minute television spot in late January for a National organization. For more information on G&A’s Estate Planning Division or to see if you or your organization qualifies for reduced fees for wills, trusts or estate plans, click here.
As the exclusive panel attorney’s for RN Guardian, G&A’s lawyers successfully represented, and are currently representing, California Registered Nurses in disciplinary actions against their licenses with the BRN. RN Guardian Attorneys have also dispensed proactive legal advice which has mitigated adverse action in both job and licensing matters for RNs. For more information on the successes of RN Guardian or how your association can partner with RN Guardian, click here.
As featured speakers for the highly sought Advantage Training and Education Series, Paul and Gary Goyette offered their unique brand of advice and decades of institutional knowledge and expertise to over 100 attendees at the training seminar in Sacramento in November. The Advantage Training and Education Series is currently planning a Southern California Seminar for March in conjunction with the law firm of Silver, Hadden Silver, Wexler and Levine. For more information on how to obtain DVDs of the November training, or to sign up for the upcoming Southern California event, please contact Jennifer Coalson-Perez or click here for a sample agenda.
We would like to take this opportunity to express our gratitude to our clients, colleagues and especially to our driven team for making Goyette & Associates the diversified and successful Firm it is. Here is to continued successes for 2010! Happy New Year!
Court Denies City’s motion to Decertify the Class in the Donning & Doffing Suit against LAPD
Thursday, August 13th, 2009Federal Central District Court Judge Valerie Baker Fairbank denied the motion made by the attorneys for the City of Los Angeles asking the Court to disband or ‘decertify’ the class of over 2,000 LAPD Officers who are part of the lawsuit seeking overtime pay for pre and post shift time spent donning, doffing and performing associated tasks related to the LAPD required uniform components and special protective gear. The lawsuit, Nunez et. al. v. City of Los Angeles, is being litigated for the large group of LAPD Officers, Sergeants and Lieutenants by Goyette & Associates along with Silver, Hadden, Silver, Wexler & Levine.
Attorneys for the City and LAPD made the motion to argue that the class of over 2,000 LAPD peace officers, who are members of the Los Angeles Police Protective League (LAPPL) union and who joined the lawsuit, should be decertified or disbanded based on factual differences between the class members. Specifically, the City contended that the class members should not be considered ‘similarly situated’ to the five named Plaintiffs because of alleged differences in the location of the donning & doffing (at work versus at home), and differences in how some of the defenses being asserted by the City apply to the class members.
The Court found, however, that the published case law cited by the City was distinguishable because it mostly involved decertification cases in which the employees were subject to different policies, enforced by different supervisors, which varied from store to store or office to office. Conversely, the Court found that the Plaintiffs and class members in the Nunez case were subject to one consistent LAPD policy: that pre and post shift time spent donning, doffing and performing activities associated with the required uniform and protective gear was not compensated by LAPD. The Court relied on decertification cases cited by Goyette & Associates and Silver, Hadden, Silver, Wexler & Levine which established that some factual differences between Plaintiffs and class members did not necessarily support class decertification, since the claims by class members did not have to be identical to those of the named Plaintiffs. Rather, the class members had to be ‘similarly situated’ to the named Plaintiffs.
With the Nunez class of over 2,000 LAPD peace officers intact, the lawsuit now moves forward to final motions regarding liability, and then likely on to the trial set for late January of next year. A ruling by the 9th Circuit Court of Appeal on a peace officer donning & doffing case from Arizona is expected in the coming months and may or may not affect the Nunez litigation. The Nunez lawsuit against LAPD is one of various donning & doffing class actions which Goyette & Associates is litigating for peace officers in California.
Federal Judge Rules Entirely for Officers in Donning and Doffing Lawsuit Against LAPD
Wednesday, May 20th, 2009
The Central District Court in Los Angeles granted the Plaintiffs Motion for Summary Judgment (MSJ) in the consolidated cases of Alaniz, Mata, and Nolan against the Los Angeles Police Department (LAPD). In short, this decision is a ‘home run’ for peace officers in L.A. and LAPD employees. The ruling finds that the pre and post shift time spent putting on (or ‘donning’), taking off (or ‘doffing’), and performing other tasks associated with required special protective gear and uniforms is compensable under the federal wage law – – the Fair Labor Standards Act. In addition, the ruling states that it does not matter whether the donning & doffing activities occur at work or at home. This ruling could affect multiple other pending donning and doffing lawsuits, including Goyette & Associates’ Nunez suit against the City of Los Angeles and the associated class grievance for members of the Los Angeles Police Protective League (LAPPL).
Class Action Against CALTRANS for Prevailing Wages and Overtime Settles for $5.2 Million
Wednesday, September 17th, 2008Between 2005 and 2008 Goyette and Associates litigated and ultimately successfully settled a class action law suit against CALTRANS, and against several employers of tugboat captains and deck hands in a dispute over prevailing wages and overtime pay for work performed on the various Bay Area bridge seismic retrofit projects. The case involved many complicated factual and legal issues, including the rights to prevailing wages on public works projects, the right to overtime pay under California wage law, the obligation by an awarding body to properly advertise prevailing wage rates and the associated obligation of contractors to pay such wage rates, and the roll and function of the employees’ union in such matters. The class action law suit initially arose because a group of between 300 and 500 tugboat captains and deckhands who were performing work on the various seismic retrofit projects on bridges throughout the Bay Area were not receiving prevailing wages and overtime pay for their work. Unlike other employees working in other trades on the seismic retro fit projects, the tugboat captains and deckhands were not receiving prevailing wages on these public works projects, nor were they receiving overtime pay for hours worked in excess of 8 hours in a work day.
G&A initially met with representative tugboat captains and deck hands and then engaged in a detailed analysis of the state law applicable to this prevailing wage issue. Despite the fact that the prevailing wage law was somewhat unsettled for the projects at issue (since only more recent directive from the State Department of Industrial Relations provided clarification on which trades were covered under public works projects), G&A went ahead and filed a class action law suit on behalf of the affected tugboat captains and deckhands. After several year of engaging in various steps in the class action litigation, and after Intervening and participating in a related Petition for a Writ of Mandate filed by the employee’s union, the dispute ultimately went to mediation though the California Court of Appeal and settled for $5.2 million. Since the time this class action was litigated and resolved, tugboat captains and deckhands now properly receive prevailing wages at the appropriate wage rate and overtime pay for work above 8 hours a day on all similar public works projects in California.
Class Action for Misclassified Exempt Employees Settles for $1.4 Million
Wednesday, September 17th, 2008In 2003, Goyette & Associates represented plaintiffs on behalf of a class of approximately 200 analysts who were or had been employed by two financial institutions. Ina confidential, court-approved settlement, Goyette & Associates achieved a total recovery of $1.4 million on claims of nonpayment of earned overtime wages, missed meal and break periods, and mis-classification of employees as exempt form overtime laws.
The Status of Donning & Doffing Cases For California Peace Officers
Wednesday, June 11th, 2008Since the U.S. Supreme Court decision in IBP, Inc. v. Alvarez in late 2005, the number of lawsuits based on the federal Fair Labor Standards Act (FLSA) seeking overtime pay for pre and post shift time incurred by employees has grown significantly, including cases involving peace officers. Various groups of peace officers who are required to wear special protective gear have active FLSA lawsuits because the public employers typically do not provide compensation for the time spent putting on (‘donning’) such gear prior to the start of a shift or taking off (‘doffing’) the gear at the end of the shift. Together with other pre and post shift tasks associated with the care, maintenance and preparation of special protective gear, the time incurred by peace officers donning & doffing protective gear can be significant.
While the IBP v. Alvarez case involved poultry and meat packing employees, it was the 2003 case of Alvarez v. IBP (which then became the 2005 U.S. Supreme Court case) in which the Ninth Circuit federal Court of Appeal referred specifically to bullet-proof vests worn by peace officers when distinguishing protective gear from mere clothing, and finding the donning and doffing of such gear compensable under the FLSA. This led to multiple FLSA ‘donning & doffing’ lawsuits for peace officers, including a number of cases in the federal District Courts within California.
So what is the status of FLSA donning & doffing cases for California peace officers? Where do the lawsuits stand? Where does the law on the compensability of pre and post shift time associated with special protective gear for peace officers stand? In the two and a half years since the IBP, Inc. v. Alvarez Supreme Court decision significant developments have occurred.
In 2006 some public employers elected to settle claims for compensation for pre & post shift time associated with protective gear as opposed to litigate the disputes. Such settlements included the state of California taking a reasonable posture and providing a 3.5 percent salary stipend for members of the California Association of Highway Patrolmen (CAHP) under an agreement reached between CAHP, represented by Goyette & Associates and Silver, Hadden, Silver, Wexler & Levine, and the California Department of Highway Patrol (CHP). Other disputes went forward in FLSA lawsuits against the public employers, either as suits for individual peace officers, or as FLSA ‘collective actions’ for classes for peace officers.
In 2007, four different summary judgment rulings were issued by three different federal District Courts within California for peace officer donning & doffing lawsuits. While these rulings help to begin to define the compensability of pre and post shift time associated with protective gear, the decisions conflict significantly.
In the case of Martin v. City of Richmond (2007) 504 F.Supp.2d 766, the Northern District Court granted the City’s motion for summary judgment regarding the donning & doffing of uniforms, finding that such time was not compensable under the FLSA. The Martin Court found, however, that time spent donning & doffing protective gear was ‘integral and indispensable’ to the work performed, may be compensable under the FLSA, depending of whether such tasks were performed at work or at home, and depending on how much time was incurred.
In the case of Abbe v. City of San Diego (2007 WL 4146696), the Southern District Court sided entirely with the employer, ruling that the donning & doffing of both the uniform and protective gear was not compensable because neither the law, the employer’s policies, nor the nature of the police work required the donning & doffing to be done at work, and if done at home, it was not compensable under the FLSA. In making this finding, the Abbe Court relied in part on a May 31, 2006 advisory memorandum from the U.S. Department of Labor.
In the case of Vucinich, Maciel v. City of Los Angeles, the Central District Court agreed with the Martin Court and ruled that while donning & doffing of uniforms was not compensable, donning & doffing of protective gear was integral and indispensable to the officers’ work and was therefore compensable under the FLSA. Unlike the Martin and Abbe Courts, the Vucinich, Maciel Court did not engage in any analysis of donning & doffing protective gear at home versus at work in finding such time compensable. Following the summary judgment ruling in 2007, this case became Maciel v. City of Los Angeles and went to a bench (non-jury) trial, resulting in a verdict which upheld the summary judgment ruling that time spent donning & doffing protective gear was compensable under the FLSA. This ruling is now a citable published decision: Maciel v. City of Los Angeles (C.D. Cal., 2008) 542 F.Supp. 2d 1082, 1091-92.
Finally in the case of Lemmon v. City of San Leandro (N.D. Cal. 2007) 538 F.Supp.2d 1200, 1204-06, the Northern District Court disagreed with the Martin, Abbe, and Vucinich/Maciel cases, and ruled entirely for the peace officer employees, holding that donning and doffing of both the police officer’s uniform and special protective gear was compensable under the FLSA. The Lemmon Court stated “there is no distinction between the uniform and the equipment because the police uniform with all of its component parts functions as an integrated whole that serves as the officer’s survival suit.” In addition, in direct opposition to the Martin and Abbe decisions, the Lemmon Court ruled that the compensability of time spent donning and doffing the uniform and special protective gear did not depend on whether such activity occurred at the employer’s premises. The court cited to 9th Circuit case law and disagreed with the Department of Labor advisory memo, holding that donning/doffing time may be compensable even when done at home.
The Abbe and Lemmon summary judgment rulings and the Maciel bench trial decision are now reportedly on appeal to the Ninth Circuit Court of Appeal. If and when a Ninth Circuit decision becomes published, the application of the FLSA to pre and post shift donning and doffing time will likely become much clearer for California peace officers. Until then, the mixed District Court decisions weigh in favor of the peace officers – - at least regarding the donning & doffing of protective gear being compensable under the FLSA.
The ruling that donning & doffing of protective gear is compensable under the FLSA is, however, only the first step towards a successful donning & doffing lawsuit for peace officers. Other significant obstacles regarding establishing enough pre & post shift uncompensated time may ultimately determine the outcome of a given donning & doffing case.
First, the amount of pre and post shift time spent donning, doffing or otherwise associated with protective gear must be established as more than an insignificant period of time per day in order to avoid having claims defeated by the “de minimus” doctrine. This de minimus rule was set forth in the case of Lindow v. United States (1984) 738 F.2nd 1057, under which employers are not required to pay for certain amounts of otherwise compensable time incurred by employees if it is difficult to record such time, if the work activities causing such time do not occur on a regular basis, or if the amount of time for such work activities is small. Until recently, published court decisions never established an exact amount of time above which wage claims cannot be defeated by the “de minimus” doctrine; however, the recently published Maciel trial decision found that the 5 to 10 minutes per day of donning & doffing time established in the case, while a small amount of time, is not “de minimus” because it occurred on a regular basis, prior to each work shift.
If enough donning and doffing or associated time is established to overcome the “de minimus” defense, a sufficient amount of time must still be established to overcome “gap time” and allowable FLSA overtime credits. “Gap time” refers to the difference between a peace officer’s regularly scheduled hours and the FLSA trigger for overtime pay for employees subject to the “7k exemption.” For peace officers, employers can adopt the FLSA 7k exemption so that instead of having overtime pay triggered any time actual work hours exceed forty hours per week, overtime pay is instead triggered only when actual time worked exceeds 171 hours in a 28 day period. So for example, if a peace officer has a regular work schedule under which he or she normally works 160 hours in a 28 day period, and no additional work shifts are incurred, then 11 hours of “gap time” (the difference between 160 and the 171 hour 7k exemption overtime trigger) must be overcome by the established donning & doffing time before actual overtime pay damages start to accumulate. If a peace officer does work approved additional shifts and is paid overtime for such extra work (pursuant to a collective bargaining agreement or memorandum of understanding), the FLSA also grants a ‘credit’ to employers for such overtime which is paid out prior to the peace officer reaching the 171 hour 7k exemption trigger. This credit must also be overcome by established donning & doffing time before actual overtime pay damages will be due from the employer. Therefore, even with donning, doffing, and other time pre and post shift time associated with protective gear being compensable under the FLSA, a donning & doffing lawsuit will only be successful in recovering overtime pay if the amount of pre and post shift uncompensated time established is sufficient to overcome the “de minimus” defense and both the “gap time” and overtime credit barriers.
Lastly, FLSA lawsuits for donning & doffing which are litigated on behalf of a ‘class’ of peace officers have unique requirements for the ‘class’ which are not present in other federal law or state law based class actions. FLSA class actions are properly termed “collective actions” and, based on prevailing case law, require that each and every class member, including the original named Plaintiffs, file a written, signed consent to join (or “opt-in”) to the lawsuit. If such consent is not filed, a peace officer cannot be considered part of the ‘class’ for the donning & doffing lawsuit. Further, the statute of limitations does not ‘toll’ and the start of the related damage recovery period does not become locked in place for any class member until the opt-in consent is filed with the Court. For large FLSA collective actions, such as the Nunez et. al. v. City of Los Angeles lawsuit, which is currently one of the largest pending donning & doffing cases in California (with over two thousand class member who have opted-in to the case), the amount of time and effort simply to set up the ‘class’ in the lawsuit is significant.
In sum, while the District Court decisions in various pending donning & doffing cases within California weigh in favor of peace officers, the ‘law’ will ultimately likely be set by a Ninth Circuit Court of Appeal decision. Even if pre and post shift donning, doffing and other time associated with protective gear remains compensable under the FLSA, evidence of enough of this time must be established in each case to result in successful recovery of overtime pay. But with the right facts and the direction the law appears to be evolving towards, the liability of public employers for pre and post shift donning, doffing and other time associated with protective gear may be very significant.
Gary G. Goyette is an LDF panel attorney with Goyette & Associates, Inc., specializing in wage & hour cases and currently representing various ‘classes’ of peace officers in FLSA donning & doffing lawsuits. Such cases include the Nunez et. al. v. City of Los Angeles case in which Goyette & Associates, along with Silver, Hadden, Silver, Wexler & Levine, are seeking overtime pay for over 2,000 peace officer class members.