Author Archives: BraniganRobertson

February 25, 2013 · 11:57 am

New Case Law: Rickards v. UPS

Attorney case law update – Rickards v. United Parcel Service., Inc (2012) 206 Cal.App.1523. Branigan Robertson is a California employment lawyer who focuses his practice on wrongful termination.

Attorney Case Facts

Rickards sued UPS for violations of California’s Fair Employment and Housing Act (“FEHA”). In order to do so, Plaintiff must obtain a “right-to-sue” letter from the Department of Fair Employment & Housing (“DFEH”). Plaintiff’s attorney acquired the right-to-sue letter on Rickard’s behalf. However, the defendant made a motion for summary judgment on the ground that Plaintiff had not filed a verified administrative complaint (which means it was not signed by the Plaintiff). Plaintiff’s attorney had filed a form complaint through the DFEH’s automated online system and hand received the right-to-sue letter. Plaintiff later stated that his attorney was authorized to file the complaint on Plaintiff’s behalf.

Court Disposition – Plaintiff Lawyers are Pleased

The California Court of Appeal found that the complaint was properly verified and the trial court erred in denying the motion on that ground. Defendant argued that the 2011 DFEH regulations, which state that an online verified complaint does not require a signature, nevertheless did not nullify the requirement that an attorney can verify a complaint only by signing his or her own name. Moreover, UPS argued that the regulations did not apply retroactively. However, the court found that plaintiff attorney’s can verify these administrative complaints as long as they are personally subject to penalties for perjury. Thus, the attorney verification was sufficient.

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Filed under FEHA

February 14, 2013 · 10:19 am

New Case Law: Summit Bank v. Rodgers

Attorney case law update – Summit Bank v. Rodgers (2012) 206 Cal. App4th 669. Branigan Robertson is a California employment lawyer who focuses his practice on wrongful termination. Call for a free consultation with one of our lawyers.

Summit Bank sued its former employee Robert Rogers for posting allegedly defamatory messages on a section of Craigslist entitled “Rants and Raves.” Rogers moved to strike the Bank’s complaint pursuant to California’s “anti-SLAPP” statute (Code of Civil Procedure section 425.16), on the ground that the suit was brought for the illegitimate purpose of chilling Rogers’s right to speak freely about the Bank. The anti-SLAPP statute protects acts in furtherance of a person’s right of petition or free speech in connection with a public issue. This includes any written or oral statement made in a public forum in connection with an issue of public interest.

Orange County Employment Attorney Update

The trial court denied the employee’s motion on the grounds that (1) employee’s statements were not protected by the anti-SLAPP statute because Roger’s underlying conduct was illegal (defamation); and (2) the Bank had shown a probability of success on the merits of its defamation claim.

Appeals Court Holding

The CA Court of Appeal reversed, holding that the anti-SLAPP statute barred the suit. First, employee’s statements were speech covered by the anti-SLAPP statute, and the financial code relied upon by the bank (which prohibited certain statements about a banks financial condition) was an impermissible content-based restriction on free speech. Employee’s statements on the blog constituted a public forum; and the financial condition of private banks constituted a public issue because of public interest in the heath of financial institutions as a result of the recent financial crisis.

Second, the Bank did not establish a likelihood of prevailing on its defamation claim because it is common knowledge that online blogs are noted for strongly worded opinions rather than objective facts. Objective facts constitute defamation, not opinions.

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Filed under Defamation

February 11, 2013 · 9:38 pm

New Case Law: Aleman v. AirTouch Cellular

Attorney case law update – Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556. Branigan Robertson is a California lawyer who focuses his practice on wage and hour issues and wrongful termination. Mr. Robertson offers free consultations.

Employees working as retail sales representatives and customer service representatives brought a class action against AirTouch claiming the company did not properly pay its hourly workers for attending mandatory store meetings. Plaintiff’s claim defendant violated Wage Order 4-2011 by failing to pay employees reporting time pay when they attended meetings. However, the employer argued that the employee was not entitled to reporting time pay because the meetings were scheduled and the employee was paid for working the scheduled time.

Orange County Reporting Time Pay Disputes

The applicable wage order states that each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half of said employee’s usual or scheduled day’s work, the employer must pay the employee for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at the employees regular rate of pay, which shall not be less than the minimum wage. Therefore, under this rule, when work is scheduled, reporting time is owed only when an employee is not furnished with half of his or her scheduled day’s work.

Here, the meetings were scheduled and constituted scheduled work. Because the employee worked and was paid for at least half of the scheduled shift, the employee was not entitled to additional reporting time pay. The appellate court ruled that employers are not required to pay reporting time pay when meeting times are scheduled and employees work at least half of the scheduled time.

If you are looking for an attorney to handle your reporting time issue, contact our lawyers today. Mr. Robertson is a California employment lawyer who focuses his practice on wage and hour, harassment, retaliation, and termination. Mr. Robertson offers all callers a free consultation.

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Filed under Wage & Hour

· 8:55 pm

New Case Law: Kirby v. Immoos Fire Protection

Attorney case law update – Kirby v. Immos Fire Protection, Inc., (2012) 53 Cal. 4th 1244. Branigan Robertson is a California lawyer who focuses his practice on wage and hour, harassment, and wrongful termination. All callers receive a free consultation.

In this case, former employees sued defendant employer for wage and hour violations, including failure to provide rest breaks in violation of California Labor Code section 226.7. The defendants moved to recover attorney’s fees and plaintiffs opposed claiming that recovery was barred under sections 1194 and 218.5. The trial court awarded attorney’s fees to defendant and plaintiff appealed.

Supreme Court Reversal – Wage Attorney

The California Supreme Court reversed, holding that the one way fee-shifting statute under section 1194 for unpaid minimum wage and overtime claims, and the two-way fee shifting statute under section 218.5 for actions for nonpayment of wages, do not apply to meal and rest break claims. Basically, employers sued under Labor Code section 226.7 for failure to provide meal periods and rest breaks cannot recover attorney’s fees under 1194 or 218.5 because meal period and rest break premiums do not constitute wages under the statute.

If you are looking for an attorney to handle your meal and rest break issue, contact our lawyers today. Mr. Robertson is a California employment lawyer who focuses his practice on employment law for employees. Call for a free consultation with one of our attorneys.

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Filed under Wage & Hour