California Bucking Wage Case Trend
California Lawyer

California Bucking Wage Case Trend

August 2013

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Federal wage-and-hour lawsuits have been proliferating in most parts of the country (they've quadrupled nationwide since 2001). But in California, where they also had been rising, they're down in 2013 by almost 50 percent, according to the Federal Judicial Center.

Without clear data on whether the caseload is shifting to California state courts, it's hard to know what's going on. The same factors were operating in California and nationwide, including technology that blurs work hours and employers reclassifying workers as ineligible for overtime. But employment lawyers say the tide may be turning in California.

"There are fewer California wage-and-hour filings, period, because the economics aren't there," says Norman B. Blumenthal, managing partner at Blumenthal, Nordrehaug & Bhowmik in San Diego. Blumenthal says he's turned down wage-and-hour cases because of the increased possibility of forced arbitration since the U.S. Supreme Court's ruling in AT&T Mobility v. Concepcion (131 S.Ct. 1740 (2011)).

David A. Lowe, a partner at Rudy Exelrod Zieff & Lowe in San Francisco, expects continuation of the trend toward filing smaller, statewide class actions in state court after the Ninth Circuit applied the tighter class certification requirements of Wal-Mart Stores v. Dukes (131 S.Ct. 2541 (2011)) to wage-and-hour claims and reversed itself in Wang v. Chinese Daily News (709 F.3d 829 (9th Cir. 2013)).

Michael S. Kun, Los Angeles-based chair of Epstein Becker Green's wage-and-hour, class action, and collective action group, says Brinker v. Superior Court (53 Cal. 4th 1004 (2012)) could be tamping down both state and federal filings because it requires plaintiffs to show that an employer prevented workers from taking breaks, not just that the breaks didn't occur: "The Brinker decision will generally make it more difficult for plaintiffs to prevail on meal and rest-period class actions."

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