Wilke Fleury Attorneys Featured in 2021 Best Lawyers in America and Best Lawyers: Ones To Watch!
September 28, 2020 —
Wilke Fleury LLPWilke Fleury congratulates attorneys
David Frenznick,
Adriana Cervantes and
Dan Egan on their inclusion in the 2021 Edition of Best Lawyers in America!
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and they have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed.
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Wilke Fleury
Beware: Hyper-Technical Labor Code Violations May Expose Employers to Significant Claims for Penalties under the Labor Code California Private Attorneys General Act of 2004 (PAGA)
May 10, 2017 —
Angela Reston-Nunez – Newmeyer & Dillion LLPMost employers know that companywide policies or practices that do not strictly comply with applicable state or federal employment laws can expose employers to class action lawsuits by large numbers of employees seeking recovery of massive sums in damages, attorneys’ fees and costs. Unfortunately, traditional class action lawsuits are not the only representative actions employers should be concerned with. Recent litigation trends have shown that California’s lesser known Labor Code Private Attorneys General Act of 2004 (“PAGA”) can be equally, if not more harmful to employers than class actions due to steep penalties for minor violations.
WHAT IS PAGA?
Under PAGA, “aggrieved employees” can sue employers for alleged Labor Code violations. Like class actions, a PAGA plaintiff sues on a representative basis on behalf of themselves and other workers. However, unlike class action plaintiffs, PAGA plaintiffs do not seek damages; rather, they seek civil and statutory penalties formerly recoverable solely by state agencies in enforcement actions.
The distinction between recovery of damages in class actions and recovery of penalties in PAGA actions reflects the often-insidious nature of PAGA claims. While workers have long alleged “derivative” PAGA claims for penalties in connection with more substantive underlying Labor Code violations (meal or rest break violations, for example), we have seen a recent spike in PAGA suits alleging hyper-technical Labor Code violations with no underlying substantive violation, and where the “aggrieved employees” have suffered no actual harm.
WHAT'S AT STAKE?
Equally troubling for employers is the method by which significant penalties are aggregated. With a few significant exceptions, penalties generally range from $50 to $250 per violation. At first blush, this may not seem like much, however total penalties rise rapidly when considering that calculations are made on a per-employee and a per-pay period basis.
AN EXAMPLE ON HOW PAGA WORKS
Consider the following example based on one recent case:
Issue: An employee brought a PAGA-only lawsuit on behalf of himself and 400 other “aggrieved employees” against his employer for alleged Labor Code violations.
Claim: The employee claimed the employer’s 30-year practice of paying employees 9 days after the close of the applicable payroll period violated Labor Code Section 204(d), which requires payment to be made within 7 days of the close of the payroll period. The employee claimed that, under PAGA, the employer was liable for a minimum penalty of $100 per employee, per pay period, going back at least one year (the statutory limitations period for PAGA claims).
Exposure: With 400 employees, 24 pay periods per year, and $100 per violation, the plaintiff sought a minimum of $960,000 in penalties (not including substantial attorneys’ fees, costs and interest also available under PAGA), despite offering no evidence of harm suffered by the employees or prior notice of the issue.
OTHER IMPORTANT CONSIDERATIONS
In addition to a draconian penalties scheme, there are a myriad of additional aggravating factors for employers involved in PAGA litigation, such as:
- PAGA plaintiffs are not required to meet the rigorous class certification standards required of class action plaintiffs, meaning plaintiffs’ attorneys may be more likely to bring meritless “strike suits” aimed at obtaining quick settlements based on significant alleged penalties exposure.
- 75% of PAGA penalties recovered by way of settlement or judgment are directed to the state of California, while the "aggrieved employees” only keep 25%, reinforcing the notion that PAGA claims are frequently attorneys’-fee-driven, rather than for protecting employees.
STEPS FOR EMPLOYERS TO PROTECT THEMSELVES
Fortunately, there are a number of measures employers can take prior to and during wage and hour litigation which can dramatically reduce, or even eliminate, exposure to substantial penalties and damages. This includes:
- Regular reviews. Prior to litigation, we recommend regular detailed reviews of company policies and practices in order to identify areas of possible concern and ensure compliance with California’s ever-changing labor laws.
- Take action. On receipt of a new PAGA claim, taking immediate action to remedy an alleged violation within the Labor Code’s 33-day “safe harbor” time-period may help limit an employer’s exposure, and could bar a plaintiff from filing suit at all.
- Be aggressive. Once a PAGA or class action claim is in litigation, a proactive, aggressive approach to claim evaluation, investigation and litigation is critical.
For these reasons and more, it’s in an employers’ best interest to monitor these issues closely and seek input when appropriate.
Angela Reston-Nunez is a labor and employment attorney in Newmeyer & Dillion’s Walnut Creek office. For questions regarding PAGA, class action or individual wage and hour issues, or other employment law matters, please feel free to contact Angela Reston-Nunez at (925) 988-3249 or angela.reston-nunez@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Tenth Circuit Finds Appraisal Can Decide Causation of Loss Under Colorado Law
November 29, 2021 —
Tred R. Eyerly - Insurance Law HawaiiThe Tenth Circuit determined that the Colorado Supreme Court would agree with other state courts that appraisers can decide the causation of a loss. Bonbeck Parker, LLC v. The Travelers Indem. Co. of Am., 2021 U.S. App. LEXIS 29607 (10th Cir. Oct. 1, 2021).
A hailstorm damaged three buildings owned by BonBeck. A claim was submitted to Travelers under BonBeck's commercial property policy. Travelers acknowledged that some hail damage occurred to all the buildings except for the roofs. Travelers paid $34,200 for damage to the buildings. Coverage for the roof damage was denied because it resulted not from the hail damage but from uncovered events like wear and tear, deterioration, and improperly installation.
BonBeck requested an appraisal. Travelers insisted that the appraisal would only determine the amount of loss of covered claims. BonBeck rejected these conditions and Travelers filed suit.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Reminder to Get Your Contractor’s License in Virginia
April 25, 2023 —
Christopher G. Hill - Construction Law MusingsHow are ducks and contractors alike? A question I get often, particularly from construction contractors outside of Virginia is whether they need to get a Virginia contractor’s license. The answer is almost invariably “yes.” The next question is why? The answer is almost always “Because state law says so.” With some minor exceptions for material suppliers and the like, Virginia law requires that all of those that perform construction for others carry the proper license and specialization for the work performed. There is no exception for the proverbial “paper contractor” that takes money from an owner and subcontracts all of the actual physical work. It does not matter if you use a different term for what you do for the owner. If it walks like a duck and quacks like a duck. . .its a duck. If you take money to perform construction, you’re a contractor.
Some of the consequences of contracting without a license (aside from possible criminal charges) include among other things, the inability to perfect a mechanic’s lien under Va. Code 43-3(D) and, with minor exceptions, the ability to enforce a contract (meaning it really hurts your ability to get paid).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Homebuilders Call for Housing Tax Incentives
May 10, 2013 —
CDJ STAFFThe National Association of Home Builders has asked Congress to support tax incentives for home buyers and renters, including the Low Income Housing Tax Credit and the mortgage interest deduction. Robert Dietz, an economist at the NAHB, noted that in 2009, 35 million home owners were able to claim the mortgage deduction. Dietz responded to arguments that the deduction simply lead to people buying bigger homes by saying that “the need for a larger home created the higher loan deduction, not the other way around.”
The NAHB notes that one hundred new single-family homes creates more than 300 jobs and generates substantial tax revenues. “Housing provides the momentum behind an economic recovery because home building and associated businesses employ such a wide range of workers” said Dietz.
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Illinois Couple Files Suit Against Home Builder
January 15, 2014 —
Melissa Zaya-CDJ STAFFLast December, Norman and Valerie Adkins, a couple in Edwardsville, Illinois, filed suit against their home builder, Customary Construction, and contractor Kevin M. Kahrig, alleging that the defendants did not build their deck according to code, Kelly Holleran of the Madison Record reported.
According to the complaint as stated by the Madison Record, the Adkins purchased the home from the defendants in October of 2010. The couple notified Kahrig (the Customary Construction owner) regarding cracks along the perimeter of their deck that had not been caulked. Kahrig sent a crew to fix the cracks, but the Adkins were unhappy with the work, the complaint states. The Adkins hired a masonry contractor to fix the deck, and the contractor found “structural issues with the arches and brick columns supporting the deck at the back of their home,” reported the Madison Record.
The Adkins then hired an engineer who “inspected the deck and reported that it had been improperly constructed and needed to be removed and replaced,” according to the complaint. The engineer continued, “The current condition of the deck is a safety hazard, as there is a risk of collapse and loose bricks or other masonry materials falling and striking a person within the proximity of the deck.” The Adkins are seeking “a judgment of more than $150,000, plus costs and attorney’s fees,” the Madison Record claims.
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Hurricane Laura: Implications for Insurers in Louisiana
October 19, 2020 —
Jennifer Michel & Tabitha Durbin - Lewis BrisboisJust two days before the 15th Anniversary of Hurricane Katrina, Category 4 Hurricane Laura made landfall near Cameron, Louisiana. Although the “unsurvivable” 20-foot storm surge, which had been predicted ahead of the storm, thankfully was significantly less, the impact of Laura on the Southwest Coast of Louisiana and Southeast Coast of Texas and its neighboring parishes and counties, most notably Cameron Parish, was quite severe. Lake Charles, Louisiana suffered widespread flooding and sustained catastrophic wind damage. Although the storm moved quickly, it retained its strength longer than expected such that even areas well inland sustained considerable damage. Preliminary estimates for insured losses from storm surge, flooding, and winds range from $8 to $12 billion for residential and commercial properties. Insurers providing residential or commercial property insurance in Louisiana should keep the following statutory claims handling requirements in mind.
Louisiana Statutory Provisions
Under Louisiana law, an insurer is expected to comply with certain statutory requirements in investigating and handling claims submitted by its insureds and third-party claimants. The majority of these requirements, and the consequences of their violation, are codified by La. R.S. 22:1892, which governs the payment and adjustment of claims, and La. R.S. 22:1973, which delineates an insurer’s duty of good faith. Together, the statutes impose three requirements on insurers: timely initiation of loss adjustment, timely payment of claims, and a duty of good faith and fairness in the adjustment and payment of said claims.
Reprinted courtesy of
Jennifer Michel, Lewis Brisbois and
Tabitha Durbin, Lewis Brisbois
Ms. Michel may be contacted at Jenny.Michel@lewisbrisbois.com
Ms. Durbin may be contacted at Tabitha.Durbin@lewisbrisbois.com
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OSHA Issues Fines for Fatal Building Collapse in Philadelphia
November 27, 2013 —
CDJ STAFFThe Occupational Safety and Health Administration has issued $400,000 in fines to two contactors who were involved with the collapse of a building in Philadelphia. Six people died and 14 more were injured in an adjacent building. OSHA concluded that the two firms, Campbell Construction and S&R Contracting, violated workplace safety regulations 12 times in their demolition of the building.
According to OSHA, Campbell Construction removed structural supports and portions of the lower floors of the building while upper stories were still being demolished. Both firms failed to provide its workers with fall protection equipment.
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