- Written by Greg Blueford
A May 15, 2015 California Appellate Court decision has provided significant guidance on limiting Plaintiffs’ scope of discovery in representative actions brought under the Private Attorney’s General Act of 2004 (“PAGA”). In a PAGA lawsuit, the Plaintiff must establish that he represents “similarly aggrieved” employees but need not establish the onerous requirements of class certification. After the decision in Williams v. Superior Court, Plaintiffs must now first establish, by more than just mere allegations in their complaints, they themselves were subjected to violations of the Labor Code and that the employer’s employment practices are uniform throughout the company before they may seek broad discovery relative to other employers.
The Plaintiff in Williams was a non-exempt employee for the retail store Marshalls who brought the PAGA lawsuit against the retailer, alleging failure to provide meal and rest breaks, inaccurate wage statements, failure to reimburse employees for expenses and failure to pay all wages earned.
The Plaintiff sought to discover the names and contact information of all non-exempt employees in California. The Defendant objected on multiple grounds, including privacy rights of its employees. At the time of the motion to compel the discovery of employee names and contact information, the Plaintiff had not been deposed nor had there been any discovery; all that existed were the allegations of the initial complaint.
- Written by Carl Larson
The NLRB’s General Counsel is attempting to bring back the dead by advancing a joint employer standard that hasn’t been used in 30 years. This threatens not only big franchisors like McDonald’s, but also companies that use temp agencies, farm labor contractors, or other labor suppliers. Even if a company exercises little to no control over the employees provided to it, it may still wind up being forced to collectively bargain with a union or answer to unfair labor practice charges alleged against their labor supplier. This obviously creates much greater exposure for an employer than under previous interpretations of the National Labor Relations Act (NLRA).
If this new standard advanced by the General Counsel takes hold, it could be an end to the franchise system as we currently understand it. Under our current system, an employer can generally count on avoiding liability for franchisee or labor contractor conduct by making sure to avoid involving themselves in the human resources function. Employers are free to exercise control over marketing, signage, pricing, training of managers, hours of operation, and methods of preparing their products. Problems generally arise where the employer gets involved in issues of employee discipline, hiring, firing, compensation rates, and work schedules.
In the General Counsel’s view, a client employer is a joint employer anytime they wield sufficient influence over the working conditions of another entity’s employees such that meaningful bargaining could not happen without them. The two cases to watch are McDonald’s USA, and Browning-Ferris, both currently pending before the NLRB. Following a wave of organizing in the fast food industry in late 2012, the General Counsel’s office has pursued upwards of 90 cases of unfair labor practices against McDonald’s Franchises alleging McDonald’s USA as a joint employer.