Joseph S. Persoff

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Divided Ninth Circuit Reinstates Part of California’s Anti-Arbitration Law

For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and countless Supreme Court cases. While a string of Supreme Court cases over the past decade gave employers some respite, the Ninth Circuit has … Continue Reading

California Employers Must Pay Meal and Rest Period Premiums at the Regular Rate of Pay

By Joseph S. Persoff on July 15, 2021 Posted in California

When a California nonexempt employee is not provided a meal or rest period, Cal. Labor Code 226.7 requires an employer to pay a penalty to that employee in the amount of one hour of that employee’s “regular rate of compensation.” It was an open question whether an employee’s “regular rate of compensation” meant the employee’s … Continue Reading

California Court Affirms Value of Employee Time Punches in Defeating Class Certification

By Joseph S. Persoff and Vartan Madoyan on May 12, 2021 Posted in Class Certification

UPDATE: On August 11, 2021, the California Supreme Court de-published its decision in Salazar v. See’s Candy Shops Inc., the subject matter of this blog. As a result of the decertification, the decision no longer has precedential effect and cannot be cited as authority in other cases. While the court did not state its reason … Continue Reading

Ninth Circuit Holds Employee Expense Per Diem Can Constitute ‘Wages’ to Determine the Regular Rate

By Joseph S. Persoff on February 9, 2021 Posted in Wage and Hour

In a case involving two certified classes, the Ninth Circuit Court of Appeals concluded this week that an employer’s per diem paid to traveling employees to reimburse for the cost of meals, incidentals and housing while working away from home can constitute a “wage.” Clark v. AMN Services, LLC, Case No. 19-55784 (9th Cir., Feb. 8, 2021). … Continue Reading

District Court Preliminarily Enjoins Enforcement of California’s A.B. 51 Anti-Arbitration Law

By John Lewis and Joseph S. Persoff on February 3, 2020 Posted in Arbitration

Since Oct. 11, 2019, we have been blogging about California’s new anti-arbitration law and the injunctive action filed before Chief District Judge Kimberly J. Mueller to enjoin it. Chamber of Commerce of the United States of America v. Bacerra, No. 2:19-cv-02456 (E.D. Cal.). See our blog articles of Oct. 11, 2019, Dec. 30, 2019 and … Continue Reading

Update on the TRO Issued in the Case Involving California’s AB 51 Anti-Arbitration Law

By John Lewis and Joseph S. Persoff on January 16, 2020 Posted in Arbitration

On Jan. 10, 2020 Chief District Judge Kimberly J. Mueller further defined the scope, issues and duration of the Temporary Restraining Order (TRO) she initially issued on Dec. 30, 2019. We blogged about the new California legislation and the TRO issued in Chamber of Commerce of the United States of America v. Bacerra, No. 2:19-cv-02456 … Continue Reading

District Court Temporarily Enjoins Enforcement of California’s AB 51 Anti-Arbitration Provision

By Joseph S. Persoff, John Lewis and Greg Mersol on December 30, 2019 Posted in Arbitration

A federal judge has issued a temporary restraining order halting the enforcement of Assembly Bill 51, California’s latest attempt to prevent arbitration of claims brought under the California Fair Employment and Housing Act. We initially wrote about this statute, which sought to criminalize the use of arbitration agreements, on Oct. 11, 2019. AB 51, slated … Continue Reading

California Court of Appeal Concludes Practice Is More Important Than Policy for Class Certification

By Joseph S. Persoff on December 30, 2019 Posted in Class Certification

A California Court of Appeal issued a Christmas Eve ruling setting out the significance of a written employment policy for class certification purposes. In Cacho v. Eurostar, Inc., the court held that a correct, yet incomplete, meal break policy does not support class certification, absent other evidence suggesting that common, rather than individual, issues predominate. The court … Continue Reading

California Court of Appeal Applies Dynamex Retroactively

By Joseph S. Persoff on October 14, 2019 Posted in Independent Contractors

This week, a California Court of Appeal concluded in a class action case that the California Supreme Court’s Dynamex decision applies retroactively. In another case, Vazquez v. Jan-Pro Franchising International, the Ninth Circuit Court of Appeals previously found the Dynamex decision applies retroactively, but subsequently withdrew that opinion and certified the question to the California … Continue Reading

California Enacts Anti-Arbitration Legislation, but Will the FAA Limit Its Potential Impact? Not Entirely.

By John Lewis and Joseph S. Persoff on October 11, 2019 Posted in Arbitration

On Oct. 10, California Governor Gavin Newsom signed into law an attempt by California’s Legislature to limit arbitration of claims under California’s Fair Employment and Housing Act (“FEHA”). FEHA prohibits harassment, discrimination and retaliation on the basis of various protected characteristics, such as gender, age, disability or national origin. Taking effect Jan. 1, 2020, AB 51 … Continue Reading

CA Supreme Court Rules That Employees Cannot Recover Unpaid Wages Through PAGA

By Joseph S. Persoff on September 12, 2019 Posted in PAGA

California’s Supreme Court has cut off an area of significant potential exposure for California employers by ruling that employees cannot recover unpaid wages on behalf of themselves and other aggrieved employees through California’s Private Attorneys General Act (PAGA). Serving as a quasi-class action, California’s PAGA allows employees to recover civil penalties for California Labor Code … Continue Reading

California Courts Limit Derivative Wage Statement Claims

By Joseph S. Persoff on August 29, 2018 Posted in Wage and Hour

A common tactic for plaintiffs bringing wage and hour claims is to tack onto those claims an inaccurate wage statement claim under California Labor Code § 226. Here’s an example: A plaintiff brings a claim alleging that she was not paid overtime; she brings a second claim alleging she was provided inaccurate wage statements because … Continue Reading

The California Supreme Court To Decide Whether California’s Labor Laws Apply To Employees Who Work Only Partially In California

By Joseph S. Persoff on August 16, 2018 Posted in State Labor Laws

For a company that does 100 percent of its business in California and employs workers who perform 100 percent of their work in California, it would not be surprising for the workers’ employment to be governed by California’s labor laws. But what if the employer operates in multiple states and the employees work in multiple … Continue Reading