California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

 On December 6, 2010, the United States Supreme Court granted Wal-Mart's petition for certiorari, agreeing to review the Ninth Circuit's decision [pdf] to permit certification of a class of 500,000 current and former Wal-Mart employees in Dukes v. Wal-Mart Stores, Inc.  This litigation, which has been ongoing for nearly a decade, alleges sex discrimination under Title VII of the Civil Rights Act of 1964 against the retailer's female employees with respect to pay, promotion and job assignments. The plaintiffs originally sought to represent a class of approximately 1.5 million female employees, and much of the litigation to date has involved the propriety of certificating such a large class under the standards of FRCP 23.  

For a discussion of the class action issues on appeal on their relevance to employers, click over to the thoughtful analysis of our colleague, Mark Batten.   

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On November 18, the California Supreme Court in Pineda v. Bank of America, No. S170758 (Cal. Nov. 18, 2010) (pdf) clarified two issues regarding so-called “waiting time penalties” (i.e., penalties under California Labor Code Section 203 associated with the late payment of final wages upon termination of employment). First, the Court ruled that a three-year statute of limitations applies to such actions, whether or not accompanied by a claim for the underlying late wages. Second, it held that waiting time penalties are not recoverable as restitution under California’s unfair competition law, Business and Professions Code Section 17200 (the “UCL”). While the latter ruling is marginally beneficial to employers by limiting liability under the UCL, the Court’s finding of a three-year statute of limitations for waiting time penalties dramatically expands potential employer liability.

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