Category Archives: Newsletters

by Sonya Goodwin

Earlier this week, the California Supreme Court issued its much-anticipated decision in Adolph v. Uber Technologies, Inc. In a victory for plaintiffs, the Court held that a plaintiff whose individual Private Attorneys General Act (“PAGA”) claims are compelled to arbitration still has standing to pursue representative PAGA claims in court. 

The fight to send PAGA claims to arbitration has a long history – too long for this summary – but the procedural history of Adolph and the intervening U.S. Supreme Court decision in Viking River Cruises is worth noting here. 

In Adolph, the plaintiff, Erik Adolph, signed an arbitration agreement containing a PAGA waiver, which provided that Adolph would not “bring a representative action on behalf of others under [PAGA] in any court or in arbitration.” After Adolph filed a class action complaint alleging wage and hour claims stemming from his alleged misclassification as an independent contractor, Defendant Uber Technologies, Inc. successfully moved to compel arbitration. Adolph then filed an amended complaint alleging only PAGA claims. Uber filed another motion to compel arbitration on the grounds that Adolph was required to pursue his individual PAGA claims in arbitration. The trial court denied Uber’s motion and, in April 2022, the appellate court upheld that decision on the grounds that PAGA claims were not subject to arbitration and could not be waived under California law.

Just two months later, in June 2022, the U.S. Supreme Court held in Viking River Cruises, Inc. v. Moriana, that, under the Federal Arbitration Act, PAGA claims can be divided into individual claims and representative claims (contrary to what California courts had ruled in the past). Therefore, under a valid arbitration agreement, SCOTUS held a plaintiff’s individual PAGA claims can be compelled to arbitration and, if that happens, a plaintiff would then lack statutory standing to pursue representative claims in court. In a concurring opinion, Justice Sotomayor predicted that California courts would “have the last word” on the standing issue.

One month later, in Adolph, the California Supreme Court took up the issue of whether a plaintiff who has been compelled to arbitrate their individual claims under PAGA maintains statutory standing to pursue representative PAGA claims in court. On July 17, the Court answered in the affirmative: “where a plaintiff has filed a PAGA action comprised of individual and non-individual claims, an order compelling arbitration of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court.” The Court reiterated that there are only two requirements for PAGA standing: the plaintiff must have (1) been employed by the alleged violator, and (2) suffered from one or more Labor Code violations.

Interestingly, the Court suggested that trial courts should stay representative PAGA claims while the individual PAGA claim is being arbitrated. If the arbitrator determines that the named plaintiff is not an aggrieved employee, the named plaintiff will lack standing to pursue any representative PAGA claims in court. But if the arbitrator finds a single Labor Code violation, the decision will cement the named plaintiff’s standing to pursue the representative claims.

What Does it Mean for Employees and Employers?

The most significant takeaway for litigants on both sides of the “v” is that employers cannot use arbitration agreements to avoid representative PAGA actions. But Adolph does not remove every tool from the employer’s toolkit. An employer who believes a plaintiff’s PAGA claim lacks merit can avoid broad PAGA discovery by defeating the individual claim in arbitration. This strategy is not without risk, however. If the employee can prove a single Labor Code violation, the employer will still face the representative action in court in addition to the expense of defending the individual claim in arbitration. Employers should think carefully about the merits of a plaintiff’s allegations before moving to compel a PAGA claim to arbitration. 

by Sonya Goodwin

If you ask an employment mediator how many in-person mediations they have conducted since March 2020, chances are they can count the number on two hands. In fact, until recently, all of my mediations since the start of the pandemic had taken place over Zoom. I, like many other attorneys and mediators, had learned through experience that Zoom mediations can be just as effective as in-person mediations. But now that I have conducted several mediations in person at the parties’ request, I have a newfound appreciation for the power of an in-person mediation in certain cases. The benefits are not confined to the tasty snacks and free lunch:

• If your opponent requests an in-person mediation, it’s a good bet they will be more comfortable in person, and a more comfortable opponent often translates to a more effective and successful mediation;
• In-person mediations facilitate more face-to-face interactions, which, for some individuals, may make it easier to build trust in the mediator and the mediation process;
• While screen sharing is an option, some evidence is easier to review and more impactful when it is presented physically;
• In-person mediations present fewer opportunities for distraction, often leading to more focused participants and more thoughtful positions;
• Your opponent may be less likely to walk out of the mediation early if he or she has invested time and money to get there; and
• Body language is easier to read in-person.

That said, the advantages of mediating via Zoom are undeniable: 

• Some individuals (parties and attorneys) are more comfortable mediating from their homes and offices, which, as noted above, can make a mediation more effective;
• Zoom mediation makes it easy for parties to participate from anywhere, which not only reduces travel and lodging expenses, but also makes it easier to schedule the mediation; and 
• Full-day mediations involve a fair amount of downtime for each party while the mediator is spending time in the other “room”; virtual mediations may make it easier to get other tasks done during the downtime.

So which is right for your case? Before scheduling your next mediation, keep these considerations in mind when deciding which format best suits your case, client, and opponent. You may be surprised at the answer. 

If you would like to schedule an in-person or virtual mediation with me, please contact Candace Yang at cyang@swattys.com.  

by Gerald Sauer

For the third time in our history, Sauer & Wagner LLP was featured in a law firm profile appearing in the Los Angeles Daily Journal.   

The article highlights the addition of Sonya Goodwin, a specialist in employment law, to our firm a few years ago.  Ms. Goodwin provides counseling on all types of employment matters and also offers private in-person and virtual mediations.     

Our practice has remained the same over the past 25 years. We are a litigation boutique that provides pre-trial, trial and appellate representation to our clients in business, entertainment, intellectual property, real estate and employment matters.

Feel free to contact Gerald Sauer (310-712-8102), Robert Chapman (310-712-8111), Gregory Barchie (310-712-8113), Amir Torkamani (310-712-8105), or Sonya Goodwin (310-712-8110) directly for any inquiries.

Click here to read the full article.

by Sonya Goodwin

Sauer & Wagner LLP is proud to announce that it is once again providing mediation services by Sonya Goodwin.

Sonya Goodwin, a partner at S&W, specializes in resolving employment disputes, including single-plaintiff, multi-party, PAGA, and class actions. Sonya has practiced employment law for many years, representing numerous employees and employers in discrimination, harassment, retaliation, wage and hour, and breach of contract disputes. Her background in BigLaw and boutique plaintiff and defense employment firms makes her uniquely positioned to see a case from each side’s point of view, connect with the parties, and better assess the strengths and weaknesses of each party’s position. Sonya has been commended as a mediator who listens to the parties and their counsel, is compassionate, and understands and works with the dynamics in each room to help resolve cases. 

Mediations are offered for half and full days, via Zoom, or in-person at our Century City office or a mutually-agreed upon location in the Los Angeles area. Visit S&W’s Mediation Website Page: https://swattys.com/mediation/ for more information.

by Sonya Goodwin

As 2022 winds down, every California employer should start preparing for the new and revised employment laws that go into effect on January 1, 2023. Below is a summary of just a few of the highlights. Now is a great time to revise your employee handbooks if you haven’t done so already. Please reach out if you have any questions about how these new laws might affect your business, or if you need to revise your handbook.

Extension of California Family Rights Act

The California Family Rights Act (“CFRA”) has been extended to allow an employee to take CFRA leave for a “designated person,” in addition to the previously enumerated reasons. “Designated person” is defined as “any individual related by blood or whose association with the employee is equivalent of a family relationship” and includes domestic partners. Employers may limit an employee to one designated person per 12-month period. The CFRA applies to employers with five or more employees.

Extension of California Paid Sick Leave

California’s Paid Sick Leave Law (“PSL”) has a similar extension to allow an employee to take paid sick leave for a “designated person.” The definition of “designated person” under the PSL is even broader than under the CFRA, and is defined as “a person identified by the employee at the time the employee requests paid sick days.” Employers can also limit an employee to one designated person per 12-month period under the PSL.  

Bereavement Leave Law

Effective January 1, 2023, employers with five or more employees will be required to provide up to five days of unpaid bereavement leave to employees who have worked for the employer for at least 30 days. Bereavement leave is permitted for the death of a qualifying family member, which includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in the CFRA. The five days do not need to be taken consecutively, but must be completed within three months of the family member’s death. Employers may require documentation proving the death of the family member, and must maintain confidentiality related to the bereavement leave.  Employees may use accrued but unused vacation time for any portion of the bereavement leave that is unpaid.  

Extension of the FEHA to Protect Reproductive Health Decision-Making and Cannabis Users

Effective January 1, 2023, the Fair Employment and Housing Act (“FEHA”) will add an employee’s reproductive health decision-making as another protected category under the Act, which means employers cannot discriminate, harass, or retaliate against an employee based on their reproductive health decision-making. Reproductive health decision-making is defined as “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Effective January 1, 2024, the FEHA will make it illegal to discriminate against an employee on the basis of their use of cannabis off the job and away from the workplace. This also means that employers cannot take adverse actions against employees for nonpsychoactive cannabis metabolites found in an employee’s body through a drug test. This new law will not prevent an employer from taking adverse action against an employee who is found to be in possession of, using, or impaired by cannabis while working. The law will not apply to employees in the building and construction trades and also does not apply to applicants or employees who are hired for positions requiring federal background investigations.

Pay Data Transparency and Reporting Requirements

Effective January 1, 2023, employers with 15 or more employees will be required to put the pay scale range in all job postings (whether posted by the employer directly or through a recruiter). Additionally, all employers will be required to make pay scale information for an employee’s current position available to employees upon request. 

Additionally, employers with 100 or more employees will be required to provide a detailed pay data report to California’s Civil Rights Department every May. 

Employers who fail to comply with any of these laws will be subject to penalties. 

Protections for Employees During “Emergency Conditions”

Effective January 1, 2023, employees must be permitted to leave work or refuse to go to work during an “emergency condition,” which is defined as a disaster or extreme peril to the safety at the workplace caused by natural forces or a crime, or an evacuation order due to a natural disaster or crime at the workplace, an employee’s home, or their child’s school. The law explicitly excludes health pandemics from the definition of “emergency condition.” However, employees who are required by law to render aid or remain on the premises in the event of an emergency, employees of health care facilities who provide direct patient care, and employees of licensed residential care facilities are excluded from the protections afforded by this new law.

Reminder: Minimum Wage Increase!

Effectively January 1, 2023, the state minimum wage will increase to $15.50 per hour. This also means an increase to meet the salary basis test for exempt employees to $64,480. 

Local jurisdictions may have higher minimum wage requirements. You should always check to make sure you are in compliance with local minimum wage requirements for each jurisdiction in which you conduct business.

If you have any questions about the above laws, or need assistance with employment issues, contact Sonya Goodwin at sgoodwin@swattys.com.