Publications Archives

By: Alis M. Moon

California recently passed AB 1513, adding section 226.2 to the Labor Code. The law significantly changed the way employers are required to pay piece-rate employees for rest and recovery periods and nonproductive time. Frist and foremost, all piece rate employers should ensure their current piece rate system is legally compliant. In addition, the law provides an affirmative defense to claims for uncompensated or under compensated rest and recovery breaks and nonproductive time. The deadline to take advantage of the affirmative defense is July 1, 2016.

It is well settled that an employee claiming violations of the Fair Employment and Housing Act ("FEHA") cannot bring an action against his or her employer if more than one year has passed since the alleged unlawful employment practice. [1] 

There has been a recent trend in the Plaintiff's Bar to utilize what is colloquially known as "Reptile Theory" to maximize injury awards. The strategy is based on a book by David Ball and Don Keenan entitled "Reptile: The 2009 Manual of the Plaintiff's Revolution." The thesis of the book is the reptile's primary instinct of self-preservation. The theory is that a juror's impulse of self-preservation will override logic based on the evidence presented. The book advises Plaintiff attorneys to convert every issue into one of self-protection, which helps to compel the jurors to make their rulings due to a misguided sense of fear for themselves, despite what the evidence has presented. This tactic also influences the jurors to award large verdicts. 

Senate Bill (SB) 588 known as the "The Fair Days Pay Act" went into effect on January 1, 2016. The bill's stated purpose was to enhance the Labor Commissioners ability to enforce California Division of Labor Standards Enforcement (DLSE) judgments. Where a worker wins their case before the DLSE, SB 588 gives the California Labor Commission the right to use any of the existing remedies (such as filing a lien or levy) available to a traditional judgement creditor i.e. plaintiff that prevails in a lawsuit, and to act as a levying officer when enforcing a judgement. In addition, it prevents an employer from closing down its business and reopening under a new name in order to avoid their debts to workers.