California Injury Attorney Blog

This past June, the California Supreme Court ruled that Oracle employees who resided in Colorado and Arizona, were entitled to overtime pay under California's wage and hour laws. The plaintiffs, who travel the country training users of Oracle's software applications, had taken the position that they were not teachers as the company had said.

By classifying these workers as teachers, the company was not required to pay overtime to these workers. Under California law this put them in a classification of "exempt" workers. The plaintiffs sought overtime pay, claiming that they were in fact "non-exempt."

Oracle's position was that California law was not applicable to these employees. They said the home states of these employees should control their rights to overtime pay.

The software company also argued that if non-resident employees were to be classified as "non-exempt," employers would be unduly burdened by being required to apply California wage and hour laws in many employment situations. Finally, Oracle took the position that the laws of the state of residency should control and that in this case, the laws of Arizona and Colorado were in conflict with that of California's laws.

But, the California Supreme Court disagreed with Oracle and ruled against them. As a result, Oracle has now reached a settlement to pay $35 million to over 1,700 employees to resolve the class-action. This settlement has been preliminarily approved by the Alameda County Superior Court. The case has been winding its way through the courts for many years.

Employers who attempt to misclassify workers to avoid paying them proper wages eventually must pay for their failure to follow the laws of California. Often, these cases become class actions as they involve many plaintiffs. These cases involving wage and hour and related claims is an area of expertise for the lawyers of Hersh & Hersh. We have recently handled important matters involving many workers in cases involving Terminix and Marcus & Millichap. For more information about our law practice, please contact Hersh & Hersh for a free consultation with one of our litigators on your employment situation.

The Ninth Circuit Court of Appeals has just issued a decision that upholds the class certification for the plaintiffs in a 10b-5 securities fraud action. The case involves Amgen, a pharmaceutical company. In order to get certified as a class, the plaintiffs must show that the element of reliance is present and common for class members under Federal Rule of Civil Procedure 23(b).

Under United States Supreme Court decisions, this element can be shown by a "fraud-on-the-market" presumption. This means that a buyer is presumed to have relied on the truth of public information that is reflected in the market price of a security. This presumption allows a plaintiff seeking class certification to show reliance where it would be otherwise very difficult, if not impossible, to do.

The Ninth Circuit has joined two other circuit courts of appeal (the Third and Seventh) to hold that a plaintiff must show two things to invoke the fraud-on-the-market presumption. These are first, showing that the security in question was traded in an efficient market; and second, showing that the alleged misrepresentations were public. Neither of these requirements were contested in the case.

With regard to the element of materiality of the misrepresentations, the plaintiffs need only allege this plausibly, rather than prove it at this stage. This is also true, according to the court, of the rebuttal of fraud on the market.

In the case before the court, the plaintiff did properly allege that several public statements made by the defendant pharmaceutical company were false and material. In the court's view, this "coupled with the concession that Amgen's stock traded in an efficient market, ... was sufficient to invoke the fraud-on-the-market presumption of reliance. The district court did not abuse its discretion in certifying the class."

The California consumer law firm of Hersh & Hersh has handled major class action litigations over many decades. Please contact our law firm to talk with one of our lawyers at no charge to you, about any matter involving defective drugs, defective medical devices, personal injury, motor vehicle or other related injuries or matters.

Last week, a United States District Court judge approved a major wage and hour settlement in a case involving more than 1,200 trainee inspectors with the Terminix Company in California. The lawyers of the California Injury Attorneys Blog worked as co-counsel to secure the $1.5 million settlement and continue to represent other Terminix employees who were not included in the class. Those workers will be seeking recovery against the company through arbitration proceedings. This case is another example of the importance to workers in pursuing their right to proper wages.

Terminix argued before the court that termite inspections are part of the sales process and therefore should not be subject to overtime pay for workers. The pest control company had sought to characterize their free inspections as a sales pitch or giveaway in an attempt to exempt the extra hours worked by inspectors that were in excess of the 40-hour work-week provided for by California law. But the court rejected this argument and said that their services were not in fact sales activity.

Inspector trainees of the Terminix company sometimes work long hours - even longer than what are normally long hours. Prior to the class action, when the trainees worked longer hours, they did not receive rest or meal breaks or overtime pay. The settlement will result in the class member trainees receiving about $800 each in gross pay. Terminix will pay their share of employment taxes as well. The settlement covers trainee employees who worked as inspectors.

All those who worked as inspectors for Terminix have a claim for being misclassified as exempt from overtime and for failing to reimburse expenses, such as vehicle mileage. Due to a recent United States Supreme Court ruling, which upheld a company's right to impose arbitration on employees, most of the employees must arbitrate their claims. Those inspectors who were not trainees, will now pursue their claims in arbitration. Unlike the trainees, the inspectors signed arbitration agreements. A few will be trying their cases before the court.

Arbitrations are likely to take some time, as there are 1,800 who were employed during the period of time when the company did not classify them properly. The inspectors were classified as performing a sales function when they were performing certain services and the company did not pay them overtime because of that classification. But the court ruled that those services were not part of the sales process, as claimed by the company. Those inspectors will now have the opportunity to show the amount of time they were inspecting and doing other services for customers (other than sales) for which they should be paid overtime when they worked longer hours than the law allows without extra pay.

Hersh & Hersh represents many inspectors that are already making claims in arbitration and expects many more will file arbitration claims. As wage and hour attorneys, we fight for workers' rights to receive the pay and benefits to which they are entitled under the law. Please contact our law firm for a free consultation with one of our expert lawyers to review your employment and pay situation.

A while back we posted on a topic involving the protection of a potential class action suit by a court after the defendant offered to settle the case with an individual named plaintiff. As national class action lawyers, we follow the development of the law in this area very closely.

We recently settled a wage and hour class action litigation involving a major company. This class action involved the company's failure to properly categorize their employees to avoid providing overtime pay, proper breaks, termination pay and other wages that were due to the employees. Often companies will attempt to avoid wage and hour laws by categorizing those working as employees, as independent contractors instead.

Two recent cases are of interest in this area. In one case, the California First District Court of Appeal tossed out an action brought by a former law clerk that had worked at a private law firm while attending law school. He claimed he was entitled to overtime pay because he was not licensed to practice law at the time that he worked for the firm. He did perform many important tasks, including interviewing witnesses and writing pleadings.

He filed a lawsuit against the firm after he voluntarily left, saying that while he worked there, the firm classified him as a professional employee which exempted the firm from paying overtime to him. He took the position that the classification was improper and that he was not a professional employee. The court of appeal determined that in fact his work did fall under the professional employee exemption in the California Labor Code and that overtime pay was not required. One critical determining factor in the case was the court's view that, while the plaintiff was not a licensed lawyer, he was exercising a certain degree of discretion and judgment.

In another recent case involving Motorola Bluetooth headsets, a federal court of appeals did not approve a settlement agreement due to the amount of attorneys fees in the settlement. Often class action cases take hundreds, even thousands of hours on the part of many attorneys to investigate and prosecute. The lawyers' time is compensated only when the case either settles or goes to trial and a fee award is provided to the lawyers who may have worked years in preparing the case. Courts review these settlements and sometimes do not approve them. In this case, the court believed the attorney's fees were disproportionate to the award to the plaintiffs.

At Hersh & Hersh, we have played a significant role in litigating and settling major class actions. If you have been injured by a defective product or drug or if you are not receiving the benefits and pay you deserve as an employee, please contact our law firm. We will evaluate the situation for you and determine whether you have a case.

Many employees have come to us with concerns about whether they are being paid as required by law. We have helped many of them receive their rightful pay. Please contact our law firm to talk directly with one of our attorneys if you have any questions or concerns about how you are being paid.