Episode 25 of the Class Re-Action Podcast, discussing Kim v. Reins, is now available

Episode 25 is hot off the presses. Now you can waste 40 minutes while working from home and pretend it is educational time. Bonus!

The great pandemic?

Back in November, I came down with some respiratory bug that wiped me out pretty good for quite a while. It was a struggle for two months to find the energy to get my work done. Coupled with running my first archery tournament, I didn’t have any gas left in the tank to blog about big decisions. I’m hoping to have the time now to fix that, since I’m going to be working out of a home office for at least the next several weeks.

But my illness from November has given me something to think about. Nobody really cared that I was sick, aside from co-workers telling me to wash my hands and stay in my office, which I did. The world didn’t come to a halt because I caught one of last Winter’s circulating illnesses. So why is the Wuhan coronavirus so different? I have two theories, but I’ll spare you from them, since I’m not a virologist and this isn’t a biomedical blog. And because I have no way of ascertaining which, if either, theory is more likely true based on what information I can gather. But I do want to share a long article providing data analysis known to date. It updates frequently with new data. The end conclusion of the data analysis is that we’ve gone absolutely nuts.

If you’d like a dose of data-driven sanity, enjoy: Evidence over hysteria — COVID-19

UPDATE: So I find this troubling. The article that I linked was later pulled off of Medium and is either under “investigation” for supposedly violating Medium rules or yanked entirely. I read that entire article (it is very long) and found it to be seemingly reasonable and apparently well-supported by underlying data sets (but it does, for example, rely heavily on WHO data, and the accuracy of that data with respect to China has been questioned by many; and some comments on the original post argued that there were comparisons of non-equivalent data sets that led to inaccurate conclusions in the article). It sort of looks like people have a vested interest in perpetuation of hysteria rather than taking a non-emotional look at what all the world-wide data really shows or simply putting up a rebuttal data analysis that identifies any errors in the article. This whole business is starting to stink like rotten fish, where noise about who responded better when is drowning out an analysis of whether shutting down the economy for weeks is a rational strategy based on cost. Here is a link to a new host for the article: Evidence over hysteria — COVID-19 (As an aside, ZeroHedge is just hosting the article for the writer after it was pulled from Medium. I’m taking no position on ZeroHedge generally, given the very “loose” filter at ZeroHedge on what that site chooses to report or claim of its own volition. I view this as a simple repost rather than constituting original work.)

Episode 24 of the Class Re-Action Podcast is finally available

In the past two months I’ve had the pleasure of a 3:30 a.m. fire evacuation, multiple power outages thanks to the dipsticks in charge of SCE, a multi-week virus of some sort, and an internet outage in our area that left my poor child struggling to survive. Oh, the humanity! All of that combined with a cold Linh had to put us off track. Course corrected. We are back at it, despite some audio equipment problems today. Sigh. I need a new computer that can handle the piggish software from Adobe that I use.

Enjoy Episode 24. We discuss Naranjo v. Spectrum Security Services, Inc.

UPDATE: I did some more work on the audio. If your audio player already pulled the episode down on publication, you might want to delete it and reload the episode. I extracted more of the echo to make listening a bit less painful.

A quick note on Gonzalez v. San Gabriel Transit, Inc.

In Gonzalez v. San Gabriel Transit, Inc. (October 10, 2019), the Court of Appeal (Second Appellate District, Division Four) reversed and remanded on an appeal from the denial of class certification. Most of the opinion is about the impact of Dynamex, which adopted the “ABC test” after the trial court denied certification. There is some important analysis about what claims are encompassed by the “ABC test,” and the retroactive application. But I’m posting now just to draw attention to a sliver of discussion at the end of the opinion regarding typicality:

Also, SGT maintains that Gonzales’ claims are atypical because, “unlike other class members, [he] never leased a taxi during the class period.” But the class allegations are not premised on having “leased” a vehicle. Rather, Gonzales seeks more generally to certify a class of plaintiffs who “were engaged by [SGT] to drive passengers for hire,” and who “drove” for SGT during the class period, i.e., all “drivers employed by, or formerly employed by [SGT] . . . [during the class period], who were or are classified as independent contractors.” The common allegations of harm suffered by Gonzales and other drivers is that all were misclassified as independent contractors. As such, they were required at their own expense to install equipment and provide tools to access SGT’s dispatch system, and to obtain insurance and perform maintenance, all expenses Gonzales contends should properly be borne by their employer and were denied the benefits of wage order protections.

On remand, SGT must show that the variations in class members’ factual situations are sufficiently wide to defeat class certification. For instance, regardless of a driver’s status as lessee or owner/operator, drivers were charged weekly “lease” fees to perform services under the SGT umbrella. If and to the extent it is important that a driver owned rather than leased a vehicle—which may cause a variation in weekly “lease” rates, insurance, equipment installation fees, or some other business expense—such a difference would likely be a function of the damages to which an individual driver was entitled. That a calculation of individual damages will, at some point, be required does not foreclose the possibility of taking common evidence on the issue of misclassification questions. (Collins v. Rocha (1972) 7 Cal.3d 232, 238.) The overarching inquiry is whether class members were misclassified during the class period. If so, as discussed in the overlapping analysis of commonality above, the class members are entitled to a determination as to whether SGT misclassified them as independent contractors. The fact that individual members of the class have different damages does not preclude class certification. (Sav–On, supra, 34 Cal.4th at pp. 329–330.)

The trial court also alluded to the fact that Gonzales could not demonstrate typicality for the entire class because he never drove LAX or school runs. However, as we have noted, typicality does not require that a class representative have suffered injuries identical to those of other class members. (Martinez v. Joe’s Crab Shack Holdings, supra, 231 Cal.App.4th at p. 375.) Accordingly, the trial court must reevaluate whether the requirements for typicality are satisfied, and whether, given time limitations, the complaint may be amended to add an additional representative plaintiff.

Slip op., at 37-38. This discussion pushes back against a common argument used to try and “thin” a class action down to a subset of the members alleged to be a part of the class. The argument is frequently along the lines of “the plaintiff didn’t work in all of the job positions,” or “the plaintiff didn’t work at all of the locations.” This discussion doesn’t entirely reject such arguments, but it certainly undermines them substantially with a fact pattern that is not particularly unique in wage and hour class actions.

ZB, N.A., et al. v. Superior Court (Lawson) holds that "wages" are not recoverable as a PAGA penalty through Labor Code section 558

So, it turns out that the answer to my question is GOAT, not goat (he says with tongue planted firmly in cheek). ZB, N.A., et al. v. Superior Court (Lawson) (September 12, 2019) was issued this morning, and, unsurprisingly I think, the Supreme Court dropped an off speed pitch over the plate and froze everybody. You could see the windup with the italics added by the Court to this passage:

Before the enactment of the PAGA, section 558 gave the Labor Commissioner authority to issue overtime violation citations for “a civil penalty as follows: [¶] (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. [¶] (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.” (Id., subd. (a), italics added.)

Slip op, at 1-2. See that? It’s the tell for what’s coming:

What we conclude is that the civil penalties a plaintiff may seek under section 558 through the PAGA do not include the “amount sufficient to recover underpaid wages.” Although section 558 authorizes the Labor Commissioner to recover such an amount, this amount –– understood in context –– is not a civil penalty that a private citizen has authority to collect through the PAGA. ZB’s motion concerned solely that impermissible request for relief. Because the amount for unpaid wages is not recoverable under the PAGA, and section 558 does not otherwise permit a private right of action, the trial court should have denied the motion. We affirm the Court of Appeal’s decision on that ground. On remand, the trial court may consider striking the unpaid wages allegations from Lawson’s complaint, permitting her to amend the complaint, and other measures.

Slip op., at 2-3. So that’s it then.

There is, of course, a bit more, given that the Opinion is 30 pages long, but after the procedural history, the balance of the discussion is a detailed example of statutory construction. For instance, the Court finds that the wages referred to in Section 558 must be treated as a compensatory wage, else the provision would be internally inconsistent with Section 1197.1. Read it, if for no other reason than to see the thoroughness with which a sentence can be parsed, and persuasively I might add.

The Court was unanimous in its decision.

It isn’t entirely clear who you would call the “winner” here, given the disconnect between affirming the Court of Appeal and the practical result, but James L. Morris, Brian C. Sinclair and Gerard M. Mooney, of Rutan & Tucker, represented the Petitioners, who no longer have to deal with the potential for an award of unpaid wages as part of Section 558 penalties under PAGA.

ZB, N.A., et al. v. Superior Court (Lawson) will issue tomorrow

Another question that had divided courts will be decided tomorrow, when the California Supreme Court releases ZB, N.A., et al. v. Superior Court (Lawson). The question under review is whether a representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) seeking recovery of individualized lost wages as civil penalties under Labor Code section 558 falls within the preemptive scope of the Federal Arbitration Act. That’s the stated issue. After the supplemental issue briefing, however, I’m putting my chips on the long-shot square and betting that everyone has been wrong. My Karnak the Magnificent prediction is that the Court will say that the “wages” mentioned in Section 558 cannot be recovered under PAGA because PAGA authorizes the recovery of “penalties” where a penalty amount is stated (or a catch-all penalty where no amount is specified) but not every type of relief otherwise available to the Labor Commissioner. Remember that Section 558 also includes true penalties of $50/$100 for initial and subsequent violations. There’s my guess. GOAT or goat, we’ll see tomorrow.

Episode 23 of the Class Re-Action Podcast, discussing L'Chaim House, Inc. v. DLSE, is now available

Still on a show bender, we are back with Episode 23 of the Class Re-Action Podcast. We discuss the unicorn known as the “on-duty meal period” by chatting about L'Chaim House, Inc. v. Div. of Labor Standards Enforcement (July 31, 2019).

People keep telling me they prefer shorter shows more often, so we are sticking with it for a while. And, as always, guests are welcome if you want to talk about something recent that interests you.

Tech Tip: Updating Dell computers to Windows 10 version 1903 (the May 2019 update)

I absorb the pain so you don’t have to. If you have a fairly new Dell computer from the Dell Business line of offerings (as opposed to the Home machines), and run into a blocking bug that prevents you from updating from Windows 10 version 1809 to Windows 10 version 1903, here’s a possible solution.

If the update fails immediately with an error that preinstall.cmd scripts could not run, it is likely that the Dell Data Security software is blocking the update. But…you will likely not be able to uninstall all of that software. Some of the elements have very deep hooks into the system, and using the uninstall programs settings page will not work. In addition, there are installed components that do not register as standalone programs, so you can’t remove them with a simple uninstall option.

The solution is that Dell makes a tool to remove all of these components, but you have to call Dell and get to the team that handles the Data Security software. They will make sure that you are not using the encryption and data security tools (NOTE: if you remove the Dell Data Security and Encryption software, you can’t access encrypted data, but unless you are in an enterprise that is managing a lot of Dell machines, odds are that you are NOT using any of those tools — this issue appears to happen only if you have ordered a Dell machine from the Business line, where data security is a selling point, rather than the Home line). The tool Dell provides quickly removes the offending data security tools, and the Windows update seems to work without a hitch thereafter.

If this has been driving you nuts, I hope it helps. I separately note that there are a lot of blocking issues that could stymie a Feature Update, like driver compatibility, etc. This is only for update failures that never start because the preinstall.cmd scripts cannot run.

Episode 22 of the Class Re-Action podcast, discussing Voris v. Lampert, is now available

This is almost looking like a trend. We are back with Episode 22 of the Class Re-Action Podcast. We discuss Voris v. Lampert (August 15, 2019), but I don’t know if we will convert anyone with our analysis. Ahhhh?!?!

NOTE: Correcting a comment I made on the podcast about Lawson, somehow I got it stuck in my head that opinions are due 60 days after submission. It’s 90 days, and I’m either becoming senile or too much junk is taking up valuable storage space in my head.

Episode 21 of the Class Re-Action podcast, discussing Noel v. Thrifty Payless, is now available

Back so soon?!?! Yes we are, with Episode 21 of the Class Re-Action podcast. We discuss Noel v. Thrifty Payless (July 29, 2019), an objective show topic that is easy to ascertain. See what I did there?