Supreme Court to Review Lu v. Hawaiian Gardens Tip Decision

The California Supreme Court today granted the plaintiff's petition for review in Lu v. Hawaiian Gardens Casino, Inc. (2009) 88 Cal.Rptr.3d 345. The Court limited its review to the following issue:

Does Labor Code section 351, which prohibits employers from taking "any gratuity or part thereof that is paid, given to, or left for an employee by a patron," create a private right of action for employees?

Our post on the Court of Appeal decision is here. The Supreme Court's docket is here.

Alltop.com Calls Our Blog a "Gold Nugget"

Alltop.com is a web site that aggregates the world's best news sources and blogs. Here's how they describe what they do:

We do this by collecting the headlines of the latest stories from the best sites and blogs that cover a topic. We group these collections — “aggregations” — into individual web pages. Then we display the five most recent headlines of the information sources as well as their first paragraph.

Put differently, they give you the "gold nuggets" on any given topic. Alltop now lists The California Wage and Hour Blog for Employees on its "California" and "Law" web pages.

Ninth Circuit Asks Cal. Supreme Court to Rule on Wage and Hour and Unfair Competition Law Issues

A very interesting development involving both the Ninth Circuit and the California Supreme Court. On February 17, 2009, in Sullivan v. Oracle Corp., the Ninth Circuit asked the Supremes to decide the following issues:

First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

Second, does § 17200 apply to the overtime work described in question one?

Third, does § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?

On April 22, the Supremes agreed to review the case.

This is a fascinating case. Questions one and two seem to be gimme's for the employees. California has an overwhelming interest in applying California law to work done in California, whether the emploee typically resides within or outside California.

Question three is more complicated. Does 17200 apply to extra-territorial acts? I have not researched the issue and don't know the answer, but I'm eager to see what the Court has to say.

Stay tuned. The Court's docket sheet is here.

Postal Inspectors Get OT

Good news for all the potal inspectors out there. In Nigg v. USPS, the Ninth Circuit held that postal inspectors are entitled to overtime compensation under the Fair Labor Standards Act ("FLSA"). I won't go into all the details, but anyone who's interested can read the opinion here.

Cal. Supreme Court Issues Important Decision in Consumer Protection Case

On January 29, 2009, The California Supreme Court issued an important ruling in a case under the California Consumer Legal Remedies Act ("CLRA"). Cal. Civil Code Section 1750, et seq. The Court in Meyer v. Sprint Spectrum L.P. held that a plaintiff has no standing to sue under the CLRA without some allegation that allegedly unlawful practice resulted in some kind of tangible increased cost or burden to plaintiff, even if the plaintiff seeks only injunctive relief to prevent an unlawful practice. In this case, the Court held that the plaintiff lacked standing to sue for injunctive relief to prohibit the defendant from placing an unconscionable arbitration provision in its service contract, where the defendant had no yet invoked the arbitration provision. Obviously, this is a bad ruling for consumers and consumer advocates battling mandatory pre-dispute arbitration agreements.

Ninth Circuit: Federal Law Does Not Preempt State Wage Claims

On January 27, 2009, the Ninth Circuit Court of Appeal held that the Federal Railway Labor Act does not preempt a putative class action law suit against an airline company for willfully failing to pay former employees all wages due upon termination pursuant to Oregon law. Moore-Thomas v. Alaska Airlines, Inc.

Ninth Circuit Court of Appeal Hears Oral Argument in Wal-Mart National Gender Discrimination Class Action

On March 24, 2009, an en banc panel of eleven judges heard oral argument in Dukes v. Wal-Mart Stores, Inc., a national gender discrimination class action. When Federal District Court Judge Martin Jenkins certified Dukes as a class action in 2004, it became the largest case discrimination class action in the nation's history.

A three judge panel of the Ninth Circuit Court of Appeal affirmed the class certification order in February, 2007, then modified its decision in December, 2007, again affirming certification, but the Ninth Circuit subsequently granted Wal-Mart's petition for en banc review. So Tuesday, the Court once again heard arguments on whether to affirm the District Court order.

Kim Kralowec of the very fine UCL Practitioner blog has given an excellent live report and follow-up report on the oral argument. Kim writes, in part:

Judge Pamela Rymer asked lead plaintiffs' counsel Brad Seligman, "in 25 words or less, what is the claim in this case?" Seligman said "uniform delegation of discretion regarding pay decisions in a business with a culture of discrimination."

15 words. This -- boiling such a complicated case down to such a concise statement -- is very high-level lawyering, folks. You can listen to the oral argument on the web site run by class counsel.