BUSINESS BRIEF:

QUARTERLY EMPLOYMENT LAW

UPDATES

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By: Phillip Maltin

EDITOR-IN-CHIEF

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By: Ricardo Rozen

ASSOCIATE EDITOR

IN FOCUS: TIPS & TRENDS

EMPLOYMENT LAW UPDATESTIPS & TRENDS

PAGA Corner-

What You Must Watch For

ISSUE: The Private Attorney General Act (“PAGA”) enables individuals to file “representative actions” against their employers.  A representative action is a lawsuit a person brings on behalf of oneself and all similarly aggrieved employees.  In addition to traditional Labor Code violations, such as the failure to provide meal and rest breaks, PAGA enables employees to recover penalties for each violation per pay period per employee (usually $50-$100), with subsequent violations penalized at higher rates ($100-$200). Additionally, unlike a class action, the employee bringing the suit doesn’t need to satisfy the traditional class action requirements which are difficult to satisfy.

“Anticipation of Litigation” May Shield Documents from Discovery

ISSUE:  Can the attorney Work-Product Doctrine protect the confidentiality of communications between workers before an employee files a lawsuit? 

 

Federal law (and analogous state laws) protects documents and tangible things prepared in anticipation of litigation, or for trial, from disclosure unless the other side can show that it has a substantial need for the information and that it cannot, without undue hardship, get the information itself.

 

What does “anticipation of litigation” mean? The test looks at the time the business created the document and document’s purpose. More than just a remote possibility of litigation must exist.

Employers Must Reimburse Employees for Business Expenses including Cell Phone Use, but What Else?

ISSUE: Recently, facility management company ABM settled a class action for $5.4 million dollars after a federal court certified a class of janitors who claimed the company did not reimburse them for the required use of their personal cellphones.  This invites the question, what else must employers pay for?

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