Posts belonging to Category Caselaw Developments

In the ongoing fight over the use and enforceability of collective action waivers, the stage has been set for the United States Supreme Court to weigh in and hopefully offer clarity to labor law practitioners and employers. In 2012, two former employees filed a class and collective action lawsuit against Ernst & Young in the Southern District of New York, alleging violations of the Fair Labor Standards Act (FLSA) due to the company misclassifying them as exempt. Morris, et al. v. Ernst & Young, LLP, et al., No. C-12-04964-RMW. As a condition of their employment, plaintiffs Stephen Morris and Kelly McDaniel were required to sign agreements requiring them to pursue legal claims solely through arbitration and only individually, in “separate proceedings.” The case was then transferred to the Northern District of California, where the court granted the defendant’s motion to compel arbitration, enforced the arbitration agreement’s de facto class action waiver, and ordered the plaintiffs to individual arbitration. Order Granting Defendants’ Motion to Dismiss and Compel Arbitration, Morris, et al. v. Ernst & Young, LLP, et al., No. C-12-04964-RMW (July 9, 2013). The plaintiffs appealed the decision to the Ninth Circuit.

In 2012, in D.R. Horton, 357 NLRB No. 184 (2012), the National Labor Relations Board held that class action waivers violate federal labor law by frustrating employees’ right to engage in concerted activity to improve their working conditions. On appeal in Morris, the issue was whether the district court had properly rejected the plaintiffs’ reliance on federal labor law (specifically the National Labor Relations Act), as interpreted by the NLRB, as a basis for invalidating the arbitration agreement’s class action waiver. A divided Ninth Circuit reversed, thereby joining the Seventh Circuit in adopting the NLRB’s position that collective action waivers do in fact interfere with an employee’s right under the NLRA to engage in concerted activity, and are therefore unenforceable. Morris, No. 13-16599 (9th Cir. Aug. 22, 2016) (slip op. available here); Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016) (available here).

The Morris majority concluded, after examining the statutory language of the NLRA and the NLRB’s decision in D.R. Horton, that an employer violates the NLRA when it requires covered employees to sign an agreement precluding them from “filing joint, class, or collective claims.” Slip op. at 6-7, citing D.R. Horton, 357 NLRB No. 184 (2012). The court emphasized that the problem with the agreement was not that it called for arbitration of disputes, but that it prevented employees from acting in concert in any forum to address labor concerns, which undermines the substantive federal right of employees to collectively pursue work-related legal claims:

It would equally violate the NLRA for Ernst & Young to require its employees to sign a contract requiring the resolution of all work-related disputes in court and in “separate proceedings.” The same infirmity would exist if the contract required disputes to be resolved through casting lots, coin toss, duel, trial by ordeal, or any other dispute resolution mechanism, if the contract (1) limited resolution to that mechanism and (2) required separate individual proceedings.

Id. at 16 (emphasis in original). Had Ernst & Young’s arbitration agreement permitted concerted activity, the court held that it would have been enforceable. See id. Further, the panel reasoned that its holding in Morris did not contradict the Federal Arbitration Act (FAA) because the rights in NLRA section 7—including the employees’ right to collective action—are substantive; “when an arbitration contract professes the waiver of a substantive federal right, the FAA’s saving clause prevents a conflict between the statutes by causing the FAA’s enforcement mandate to yield.” Id. at 18-19.

In her dissent, Judge Ikuta sided with the Second, Fifth, and Eighth Circuits, calling the Ninth Circuit majority’s decision “breathtaking in its scope and in its error; . . . [and] directly contrary to Supreme Court precedent.” Slip op., Ikuta dissenting op. at 27. Judge Ikuta’s dissent focused on the existence of a “contrary congressional command,” CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669 (2012), i.e. that Congress expressly intended to preclude waiver of the judicial forum, and took the position that, absent an express contrary congressional command, an arbitration agreement’s terms (including those that waive the use of class or collective mechanisms) should be enforced. Id. at 30-36. According to Judge Ikuta, the text of the federal statute at issue, here, the NLRA, must “expressly preclude the use of a predispute[s] arbitration agreement for the underlying claims at issue” to trump the FAA. Id. at 35-36. She found that the NLRA’s right to “concerted activities” did not meet this standard, and that “the Supreme Court consistently rejects claims that a ‘contrary congressional command’ precludes courts from enforcing arbitration agreements according to their terms . . . .” Id. at 36.

At the heart of the dispute seems to be a disagreement over whether the FAA and NLRA can co-exist, or whether one must override the other, and whether the NLRA creates substantive rights. In the past, when the U.S. Supreme Court has weighed in on class action waivers and class arbitration, it has been outside of the employment context and has not involved interpretation of two co-equal federal laws. In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), the Court held that under the FAA, arbitration on a class basis could not be ordered absent evidence that the parties agreed to such procedure in the arbitration agreement. A year later, in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the Court again expansively interpreted the FAA, holding that state laws prohibiting class action waivers in consumer arbitration agreements were preempted by the FAA.

If the Supreme Court grants certiorari to address the circuit split, how it balances employees’ rights to engage in concerted activity under the NLRA with the “national policy favoring arbitration” under the FAA will surely have tremendous impact on workplace rights throughout the country. Ernst & Young’s petition for review has been joined by several amicus curiae briefs, and the Supreme Court has issued an order extending the time for Morris to file his response to the petition to November 14, 2016.

Authored by:
Jamie Greene, Associate
CAPSTONE LAW APC

For many workers, the California Supreme Court decision in Augustus v. ABM will determine if they continue to enjoy the right to off-duty rest breaks (previously covered on the ILJ here and here). In September 2016, the court finally heard oral arguments from one of the most significant employment cases of this session. The Augustus case has been closely watched and the ruling is expected to have a significant impact on the rights to rest breaks for a large portion of California’s work force.

Augustus originates from a trial court victory by a certified class of security guards who were required to remain “on call” to respond to emergencies or other incidents during their 10-minute rest breaks. The trial court held that, because the guards were not completely relieved of all duty during their breaks, the guards remained “under ABM’s control” during this time (such as by having to carry and monitor communication radios) and, thus, were not afforded an off-duty break as required by California law. Order re: Cross Motions for Summary Judgment/Adjudication and Defendant’s Motion to Decertify Class, No. BC 336416 (Dec. 23, 2010), at 4-7 (slip op. available here). The trial court based this finding on the California Supreme Court’s earlier holding that “time that the employee is subject to control of the employer is work time and must be paid [Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)].” Slip op. at 5. The trial court reasoned that, accordingly, “a rest period must not be subject to employer control; otherwise a ‘rest period’ would be part of the work day for which the employer would be required to pay wages in any event.” Slip op. at 7. The inevitable conclusion reached by the trial court was that “[p]ut simply, if you are on call, you are not on break.” Augustus v. ABM Security Services, Inc., 2014 Cal. App. LEXIS 1209, at *11.

The Court of Appeal reversed the trial court, and ruled in favor of the employer ABM. Rather than following the “subject to control” definition of “work” long used in California, the appellate court instead proposed a dual definition of the term never previously utilized under California law. Citing the 70-year-old Fair Labor Standards Act (FLSA) case of Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590 (1944), the Court of Appeal reasoned that the term “work” is used as a verb in section 226.7, not as a noun as in the definition of “hours worked” in Wage Order No. 4, and that when used as a verb, “work” “means exertion on an employer’s behalf.” Augustus v. ABM Security Services, Inc., 2014 Cal. App. LEXIS 1209, at *17. The court then concluded that because “[o]n-call status is a state of being, not an action [and] 226.7 prohibits only the action, not the status,” the security guards had not been “required to work” during their rest breaks in violation of section 226.7. Id.

The problems flowing from the Court of Appeal’s logic are manifest. Many jobs consist primarily of watching and waiting for something to happen.  If a security guard performing his required job duty of waiting for something to happen could be considered “on break” so long as no actual incidents occur during any ten minute stretch, then a drive-thru cashier manning her window could be considered “off-duty” so long as no customers arrive during any 10-minute stretch. Likewise, an ambulance dispatcher sitting at his post waiting the next 911 call could be considered “off duty” so long as no call comes for a stretch of 10 minutes. And same for the receptionist sitting at her desk or the shoe salesman waiting for his or her next customer. Once the act of observing a work station, being prepared and ready to respond to the next customer, phone call, or emergency is defined as “not work,” the very concept of a rest break is functionally eliminated for a large segment of California’s workforce who, in reality, are required to be “on-call” and ready to respond as part their regular work duties.

Fortunately for California employees, in other recent decisions the California Supreme Court has signaled its support for the Augustus plaintiffs’ position. In another action involving security guards who were required to remain on-call overnight, California’s highest court found that “on-call hours constituted compensable hours worked and, further, that [the employer] could not exclude ‘sleep time’ from plaintiffs’ 24-hour shifts.” Mendiola v. CPS Security Solutions, 60 Cal. 4th 833, 838 (2015). Promisingly, the court found that the “extent of the employer’s control” standard was determinative of “whether on-call time constitutes hours worked.” Id. at 840. The court further found that employees could be deemed to be performing compensable “work” even while they “wait for something to happen,” noting that “[r]eadiness to serve may be hired, quite as much as service itself.” Id. Based on these principles, the court concluded that security guards’ “on-call” time was “time worked” and compensable.

The employment law community now awaits the California Supreme Court’s decision on this issue. Undoubtedly, the holdings therefrom will carry significant ramifications for the California workplace for years to come.

Authored By:
Matthew Bainer, Senior Counsel
CAPSTONE LAW APC

Uber drivers suing the ride-hailing company have urged an en banc review of the Ninth Circuit panel’s recent decision that drivers must arbitrate their claims, including any challenges to that they might have to the arbitration agreements themselves. Plaintiffs-Appellees’ Petition for Rehearing En Banc, Mohamed v. Uber Technologies, Inc., et al., 15-16178, Gillette v. Uber Technologies, Inc., 15-16181, and Mohamed v. Hirease, LLC, 15-16250 (9th Cir. Sept. 7, 2016) (available here). The request to re-examine the decision stems from appeals by Uber in three proposed class actions in which drivers alleged that Uber misclassified them as independent contractors, rather than as employees, and violated the Fair Credit Reporting Act and analogous state statutes by running criminal background and credit checks on drivers without proper authorization and then improperly utilizing their consumer credit reports. The at-issue arbitration agreements were contained in two driver agreements, a 2013 agreement and a 2014 agreement, both of which contained opt-out clauses that none of the plaintiffs had utilized.

On September 7, 2016, a three-judge panel partly reversed U.S. District Judge Edward M. Chen’s June 2015 ruling that Uber’s arbitration agreements were unenforceable, and clarified that the 2013 and 2014 contracts clearly delegated the question of arbitrability to the arbitrator. Mohamed, at 6-7 (slip op. available here). The panel found that “[t]he 2013 agreement clearly and unmistakably delegated the question of arbitrability to the arbitrator except as pertained to the arbitrability of class action, collective action, and representative claims.” Id. at 14. Furthermore, “the 2014 agreement clearly and unmistakably delegated the question of arbitrability to the arbitrator under all circumstances.” Id. at 11. The panel also held that neither delegation provision was unconscionable, because the ability to opt-out of both agreements within 30 days essentially rendered both agreements procedurally conscionable, per se. Id. at 18. Indeed, although the panel acknowledged that it was likely more burdensome to opt out of the arbitration provision by overnight delivery service or in person (as required by the 2013 agreement) than it would have been by email (as allowed by the 2014 agreement), “there were some drivers who did opt out and whose opt-outs Uber recognized. Thus, the promise was not illusory.” Id. at 17. Accordingly, the court rejected Judge Chen’s finding that Uber’s arbitration provision was procedurally and substantively unconscionable on these grounds. Id. at 17-18.

In their petition for rehearing, the drivers first argue the panel’s ruling unlawfully permits otherwise unconscionable arbitration agreements to be upheld, so long as the agreement contains a “meaningful” opt-out clause, even where the terms of the clause are difficult to comply with or are purposely buried in the fine print to prevent an individual from opting out. Petition for Rehearing, at 4-7 (internal citations omitted). Second, they contend that the panel’s finding that questions of arbitrability be decided by an arbitrator conflicts with the U.S. Supreme Court’s requirement that valid delegations of arbitrability be “clear and unmistakable,” insofar as the at-issue delegation provisions contained exceptions, conflicted with other arbitration terms, and were generally ambiguous. Id. at 7-10 (internal citations omitted). Third, the drivers argue that the panel’s holding that the presence of opt-out clauses renders the agreements’ class action waivers lawful under federal labor laws is incorrect and conflicts with contrary holdings of the Seventh Circuit. Id. at 10-12. Specifically, in Morris v. Ernst & Young, No. 13-16599, 2016 WL 4433080 (9th Cir. Aug. 22, 2016), the Ninth Circuit recently held that class action waivers violate employees’ right to engage in “concerted action” under the National Labor Relations Act (NLRA). However, this panel (in Mohamed) held that the availability of limited and burdensome opt-out provisions rendered the class action waivers non-mandatory, and thus lawful. Mohamed, slip op. at 18 n.6. The plaintiffs point out that this conclusion conflicts with the Seventh Circuit’s ruling in Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1155 (7th Cir. 2016), where the court held that an employee cannot prospectively waive the right to engage in protected concerted action under the NLRA, notwithstanding an opt-out provision. Finally, the drivers argue that the panel’s determination that a cost-sharing provision that would require drivers to pay substantial fees was negated by Uber’s mid-litigation offer to pay such costs, runs contrary to Sixth Circuit precedent which held such a provision unenforceable if it “deter[s] potential litigants, regardless of whether . . . the employer agrees to pay a particular litigant’s share of the fees and costs to avoid such a holding.” Petition for Rehearing, at 12-15 (citing Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 676-77 (6th Cir. 2003) (en banc)).

It remains to be seen whether the Ninth Circuit will accept this petition for rehearing en banc.

Authored by:
Natalie Torbati, Associate
CAPSTONE LAW APC

In Laffitte v. Robert Half International Inc., No. S222996 (Cal. Aug. 11, 2016) (slip op. available here), the California Supreme Court joined “the overwhelming majority” of the nation’s courts in holding that judges may award fees in class actions as a percentage of a common fund created for the class’ benefit (the “percentage of the recovery method”). Slip op. at 27. Prior to Laffitte, some litigants—often class settlement objectors—had argued that the high court’s earlier ruling in Serrano v. Priest required judges to use only the “lodestar method” for calculating fees: “The starting point of every fee award . . . must be a calculation of the attorney’s services [measured by] the time he has expended on the case.” Serrano v. Priest, 20 Cal.3d 25, 26 (1977) (“Serrano III”). However, the California Supreme Court had not directly addressed on the issue before Laffitte.

Laffitte involved a $19 million common fund that was established to settle the claims of a class of staffing professionals who had been misclassified by their staffing agency, Robert Half, as exempt under the Labor Code, and thereby were disentitled to overtime, meal breaks, rest breaks, and other benefits guaranteed to non-exempt employees. As part of the settlement, plaintiffs’ counsel requested one-third of the common fund ($6,333,333) as a contingency fee. One class member, David Brennan, filed several objections to the settlement, including an objection to the requested fee. Brennan claimed that the fee request was unreasonable because it exceeded the contingency fee plaintiffs’ counsel would be entitled to under the lodestar method (counsel’s lodestar was $2,968,620).

The trial court overruled Brennan’s objections to the settlement. With respect to fees, the court found that the requested contingency fee was reasonable under both the percentage of the recovery and lodestar methods. On appeal, Brennan claimed that the trial court had erred by using the percentage of the recovery method to calculate the fee, and made mistakes in its application of the lodestar method, such as relying only on summaries of counsel’s billing records (rather than the actual billing records) and by awarding more than double counsel’s lodestar. The California Court of Appeal rejected these arguments, finding that the trial court had not abused its discretion by awarding a percentage of the common fund in attorneys’ fees, nor by performing a lodestar calculation based on the declarations of counsel to confirm the reasonableness of the fee as a percentage of the recovery.

On appeal to the California Supreme Court, Brennan again argued that calculating the fee award as a percentage of the settlement ran afoul of Serrano III. The court disagreed, finding that Serrano III was factually distinguishable:

The quoted text [from Serrano III] . . . concern[s] calculation of a fee awarded under the private attorney general theory. In Serrano III, this court simply did not address the question of what methods of calculating a fee award may or should be used when the fee is to be drawn from a common fund created or preserved by the litigation. For this reason, the passages quoted cannot fairly be taken as prohibiting the percentage method’s use in a common fund case . . . . Since Serrano III, we have several times, in fee shifting cases, endorsed the lodestar . . . method of calculating an attorney fee award; none of our decisions involved a case where the fee was to be awarded from a common fund created or preserved by the litigation.

Id. at 20-22 (internal citations omitted; emphasis in original).

The California Supreme Court ultimately found that “whatever doubts may have been created by Serrano III,” use of the percentage method to calculate a fee in a common fund case, where the award serves to spread the attorney fee among all the beneficiaries of the fund, does not in itself constitute an abuse of discretion. “The recognized advantages of the percentage method . . . convince us [that it] is a valuable tool that should not be denied our trial courts.” Id. at 27 (internal citations omitted). Turning to the facts of the case, the California Supreme Court held that the trial court had not abused its discretion by awarding one-third of the common fund as a contingency fee, nor by double-checking the reasonableness of the percentage fee through a lodestar/multiplier calculation based on billing summaries, stating, “[a] lodestar cross-check [] provides a mechanism for bringing an objective measure of the work performed into the calculation of a reasonable attorney fee. If a comparison between the percentage and lodestar calculations produces an imputed multiplier far outside the normal range, . . . the trial court will have reason to reexamine its choice of a percentage.” Id. at 28-29 (internal citations omitted).

Of particular interest for practitioners is the California Supreme Court’s ruling that the lodestar cross-check “does not override the trial court’s primary determination of the fee as a percentage of the common fund and thus does not impose an absolute maximum or minimum on the potential fee award.” Id. at 30. Rather, “[i]f the multiplier calculated by means of a lodestar cross-check is extraordinarily high or low, the trial court should consider whether the percentage used should be adjusted so as to bring the imputed multiplier within a justifiable range, but the court is not necessarily required to make such an adjustment.” Id. In so holding, Laffitte ensures that the application of the lodestar method to cross-check the percentage fee will not undercut the reasons for applying the percentage of the recovery method in the first instance; namely, the “alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid unnecessarily prolonging the litigation.” Id. at 27.

Authored by: 
Eduardo Santos, Associate
CAPSTONE LAW APC