Family and Medical Leave

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) contain the provisions for family medical leave. As a qualified employer, you are obligated to provide family and medical leave to your employees. Private employers with 50 or more employees during each of any 20 calendar weeks within a year, as well as all public employers, are covered by the family leave laws. Employers are still covered by FMLA/CFRA if they fall to less than 50 employees. However, if employers have less than 50 employees for 20 workweeks in the current or preceding year, they lose their FMLA/CFRA coverage. Furthermore, it is possible for employers to be covered by FMLA/CFRA while their employees are not eligible for FMLA/CFRA leave.

Fundamentally, similar stipulations are contained in the federal Family and Medical Leave Act and the California Family Rights Act. There are several provisions that do not run concurrently though. For example, leave due to pregnancy-related conditions and disabilities is only covered by the FMLA. Moreover, registered domestic partners are not provided with leave to care for a domestic partner under the FMLA. The CFRA, however, does allow 12 weeks of leave for eligible employees to care for their registered domestic partner. This is a result of the California Family Code, which states that registered domestic partners possess the same legal rights as spouses.

Under the FMLA, an employee qualifies for leave if he/she: is employed by a qualified employer, has worked for that employer for at least 12 months (not necessarily consecutive), has worked for that employer for at least 1,250 hours in the 12 months prior to the leave, and works for an employer with a worksite that consists of 50 or more employees within a 75-mile radius. The circumstances in which an employee may take family leave include: baby bonding, family care, medical leave, leave for a qualifying exigency, and leave to care for a covered service member. If an employee anticipates a need for family leave, he/she should try and provide a 30-day notice to their employer. It is an employee’s responsibility to make a reasonable effort to schedule a leave at a time that will have a minimal disruption on the company’s operation. Of course, it is sometimes impossible to anticipate and plan for a family leave. Therefore, an employer cannot deny leave based on an employee’s inability to provide advance notice of the need for the leave.

Class Certification Requirements

For a class action to be certified, all of the elements of Rule 23 must be satisfied. Basically, in order for there to be a class action case, there must be a particular class and a named plaintiff that is a member of the class. The class needs to be clearly and properly defined. That way, the trial court will be able to easily manage the class. Class certification is made within "the trial court's discretion." Essentially, the party seeking class certification has the responsibility of establishing and maintaining all of the required prerequisites.

A significant prerequisite for class action is individual standing. According to Adair v. Sorenson, "a court must assess standing to sue based upon the standing of the named plaintiff and not upon the standing of unidentified class members." Furthermore, "only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others." Thus, standing is vital to class certification and all stages of class action litigation.

Commonality is also a necessity of class action litigation. In order for there to be “representation” for the group, there must be some facts that are "common" to the group. It is important to note that the commonality requirement is not high or excessive. In essence, “the rule requires only that the resolution of common questions affect all or most of the class members.” In other words, the test for commonality is "qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” Moreover, there will not be class certification if there is a significant conflict of interest between the class members and the class representatives. The plaintiffs must “possess sufficient similarity of interests to the absent class members, to make them proper class representatives.”

For class certification, Rule 23 determines that “the class must be of sufficient numerosity to make joinder impracticable.” The numerosity requirement is evaluated on a case-by-case basis. Therefore, the court has wide discretion and loose parameters when considering numerosity, and they take into account the unique facts and context of each case. In general, when the class includes forty or more members, the numerosity requirement is satisfied. If the class includes twenty-one or fewer members, then the numerosity requirement is not satisfied. The main issue that the court considers is whether the class is too large to make joinder impracticable.

Types of Exempt Employees

Under federal and state laws, certain employees are exempt from hour and wage requirements, which include overtime pay requirements. California’s exemption requirements are more restrictive than federal law. Therefore, some federal standards are ineffective for California employees. It is often difficult to distinguish between exempt and nonexempt employees. Exempt employees usually hold executive, administrative, or professional positions.

In general, the executive exemption pertains to managerial employees. There are situations, however, in which managers are classified as nonexempt because they do not meet the executive exemption. Salaries and responsibilities should be considered when determining whether an employee is exempt. Exempt duties must have a direct relation with managerial work. Some examples of exempt duties include: hiring employees, directing work, assessing employees’ productivity, and ensuring safety of employees. Examples of nonexempt duties include: executing the same kind of work as secondary employees, performing any production work, and performing maintenance work. Sometimes there are instances in which otherwise nonexempt duties are considered exempt duties. An employee who has a managerial title but mostly performs nonexempt duties is referred to as a “working manager.” Working managers are nonexempt employees, but are often misclassified as exempt. Furthermore, assistant managers and apartment managers are typically considered nonexempt.

The administrative exemption pertains to a large variety of employees. It is important to note that many employees whose jobs entail administrative work are classified as nonexempt. Administrative employees who could qualify for an exemption are: administrative or executive assistants, staff employees who are functional rather than department heads, and employees who execute special assignments under limited supervision. In California, it is extremely difficult for an employee to meet the administrative exemption. The California courts focus on whether an employee is involved in running the employer’s business and controlling the execution of its policies. Employees who are ineligible for the administrative exemption do not contribute to policy making and do not have an impact on the operation of the company.

There are distinctive legal requirements that an employee must meet in order to qualify for the professional exemption. According to California’s Wage Order 4, artistic or learned professions are classified as nonexempt. These professions include artists, librarians, photographers, and social workers. There are particular professions that are classified as exempt from the IWC Wage Orders. These professions include physicians, attorneys, engineers, and certified public accountants. The professions that are not exempt from the Wage Orders include nurses, paralegals, unlicensed engineers, and uncertified accountants.

Disability Discrimination

Discrimination is prohibited in the workplace under federal and state laws. Legally speaking, discrimination covers actions taken against employees because of their membership or perceived membership in a particular “protected class.” Treating those people differently and negatively compared with other people not in the same class is discrimination. Everyone is part of a protected class. In California, the protected classes include: age, AIDS or HIV-positive status, marital status, domestic partnership, medical condition and genetic characteristics, race or national origin/ancestry, pregnancy, religion, gender or sexual orientation, harassment, and name change.

There are significant protections for employees with disabilities under the Americans with Disabilities Act, as well as other federal and state statutes. Not only is an employer required to avoid disability discrimination, but they must also provide reasonable accommodation to employees with disabilities. A reasonable accommodation is an adjustment in the workplace that helps a disabled person with the conditions of their employment. It is important to note that an accommodation does not have to be made if it will cause undue hardship to the employer.

If an employer treats an employee with a disability or a history of a disability unfavorably, then it is considered disability discrimination. Furthermore, if an employee is mistreated because of their relationship with someone who is disabled, it is also considered disability discrimination, and is protected under the law. Essentially, it is illegal to discriminate within any aspect of employment, which includes hiring, training, job assignments, and firing. It is also illegal to harass an employee who is currently disabled, has a history of disability, or is believed to have a physical or mental condition that is short-term or minor. The harassment has to be frequent and severe in order to be considered illegal, however. Simple teasing is not covered by the law.

In a recent case, the U.S. Equal Employment Opportunity Commission (EEOC) has sued the Scooter Store for disability discrimination. The Scooter Store, a Texas-based retailer that serves people with limited mobility, allegedly fired an employee because of their request for a temporary medical leave. The employee had a knee injury resulting from psoriatic arthritis, which was incapacitating and required treatment. The Americans with Disabilities Act was violated because the disabled employee was denied a leave request and then let go. Elizabeth Grossman, an EEOC attorney, pointed out that, “Employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities.”

What is Class Action Litigation?

Class actions are unitary proceedings that involve large numbers of claimants. Fundamentally, class actions are representative proceedings. In federal court, the practice of class action requires an understanding and appreciation of the United States Constitution—particularly the concepts of jurisdiction, notice, and due process. It is also important to be aware of the local rules of practice transmitted by the local court. Local courts may have distinct rules that govern the commencement of class action and time limitations.

The overall benefit of class action litigation is that it conserves the resources of not only the parties involved, but also the courts. Essentially, “the class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” According to Phillips Petroleum, Inc. v. Shutts, “class actions … permit the plaintiffs to pool claims which would be uneconomical to litigate individually.” Since class action lawsuits eliminate unnecessary duplication of similar claims, they essentially promote judicial effectiveness. In addition, in the mass tort context, class action is regarded as the most fair and speedy procedure for disposing of claims.

Even though class action lawsuits promote effectiveness, they are usually extremely complex and call for more judicial oversight than other types of litigation. An intrinsic part of class action litigation is the potential for conflicting interests to exist among the absent class members, class counsel, and class representatives. According to Plummer v. Chemical Bank, “the interest of lawyer and class may diverge, as may the interests of different members of the class.” Thus, both the named class representatives and the class counsel hold responsibilities to the absent class members. It is obligatory for the named class representatives and their attorneys to protect the interests of the class members that are absent.

Ultimately, class action litigation must defend individual rights and interests. According to Horton v. Goose Creek Independent School District, “the adequacy requirement mandates an inquiry into the zeal and competence of the representative’s counsel and the ability of the representative to take an active role in and control the litigation and to protect the interests of the absentees…” Hence, it is crucial for the named plaintiffs and their counsel to efficiently credit the interests of the absent class members. If an absent class member is inadequately represented by the named plaintiffs, they will not be bound to a judgment.

Exotic Dancers Attempt to Receive Minimum Wage Back Pay

Three exotic dancers are claiming that they were exploited employees at Anchorage strip clubs. Allegedly, Fantasies on 5th Avenue and Crazy Horse “use stage fees, illegal tip-pooling, house fees, mandated souvenir sales, and even involuntary charity drives to extract money from strippers.” Not only do these practices break state wage and hour laws, but they also go against the Fair Labor Standards Act. The Fair Labor Standards Act is a federal piece of legislation that provides regulations for minimum wage, overtime pay, and minor employment.

The dancers contend that they would sometimes earn less than minimum wage on slow business nights. This was the result of owing the club more money for stage fees than what they had earned for particular slow shifts. Therefore, they often did not keep the majority of the cash that they were handed.

Essentially, the strippers’ goal is to verify that they were employees of the clubs because that will allow them to collect minimum wage back pay. In actuality, most exotic dancers want to be considered independent contractors because, even after paying stage fees, they still make substantially more than minimum wage.

Even though the club owners requested for this case to be dismissed, U.S. District Court Judge Timothy Burgess denied their request in September. The dancers will be represented by their lawyer, Ken Legacki, on their trail date, which is January 3, 2012. This case will ultimately determine whether these strippers were “exploited employees” and if they should be qualified as club employees or independent contractors. In addition, this case will determine if the cash given to the exotic dancers is considered tips or service charges.

Judge Burgess prohibited this case from becoming a class action. Therefore, only these three un-named dancers will be rewarded if they win the case.

Minimum wage according to the Fair Labor Standards Act

If a state’s minimum wage is higher than the federal minimum wage, then employers are required to pay the state’s minimum wage. The federal minimum wage is $7.25, while Alaska’s minimum wage is $7.75. Thus, Alaskan employers must pay their state minimum wage to all nonexempt employees.

Vacation Pay Abuse Under Investigation

Eric Vasquez, a Los Angeles fire captain, has been put on administrative leave because of timecard falsification. He supposedly fabricated timecards in order to earn an excessive amount of vacation pay. According to the Daily News of Los Angeles, Vasquez was given $50,000 in vacation pay in 2010. Vacation pay, as well as bonuses and overtime pay, increased his yearly wages by about $77,000.

Since Vasquez was in charge of manually keeping track of the time sheets for his division, including his own time sheets, it was easy for him to fabricate vacation time. The Los Angeles Fire Department used manual time sheets up until October of 2011, when they finally applied a new system. Consequently, vacation pay problems were discovered when this new electronic payroll system was implemented. Vasquez and 50 other Fire Department employees have allegedly falsified extra vacation time. These other employees, however, did not exceed their accumulated allowance of vacation time as much as Vasquez did. All of these cases, particularly Vasquez’s case, are still under investigation.

Throughout Los Angeles, there have been many cases of city employees committing “timecard abuse.” Thus, the LAFD is not the only city agency under investigation for timecard falsification. Other agencies under investigation include the Department of Building and Safety and the Department of Animal Services.

Vacation pay is an optional employee benefit. Hence, employers are not mandated to offer it to their employees. If an employer does offer vacation pay, then it is necessary for them to set a limit as to how much vacation time an employee may take each year. The LAFD, for instance, allows their employees to accumulate vacation time based on the amount of time they work. In Vasquez’s case, he “would earn 24 days of vacation a year and could accrue a maximum of 48 days.” He significantly exceeded these limits: he claimed 919 hours of vacation pay in 2010 and, up until September of 2011, he claimed 459 hours of vacation pay.

Essentially, vacation pay is a type of wages. If an employer permits paid vacations, then they should include vacation pay regulations as a part of their employment contract. The regulations should involve how much vacation time is offered and how vacation time is accumulated. Ultimately, it is critical for an employer to inform their employees of the vacation pay policy at the beginning of each employment relationship.