Wilson v. The La Jolla Group, 61 Cal. App. 5th 897 (2021)

The trial court declined to certify a class action filed by individuals who worked as signature gatherers for the La Jolla Group (“LJG”) on behalf of political campaigns and political action committees.  LJG classified these workers as independent contractors, though they alleged they were misclassified and should have been classified and paid as employees of LJG; they also alleged a violation of Cal. Lab. Code § 226(a) involving their wage statements.  The trial court determined that plaintiffs had failed to show that common questions of fact or law predominate or that class treatment was superior to individual actions even if the workers were employees under Dynamex Ops. W., Inc. v. Superior Court, 4 Cal. 5th 903 (2018).

LJG provided evidence that the signature gatherers had no set workdays or hours; chose when and how long to work; worked in many different local jurisdictions with many differing minimum wage rates; were free to stop work for a meal or rest break any time (or not); were free to purchase supplies for their own use (or not); and there was no termination or resignation event that would trigger a final wage payment.  Accordingly, the Court of Appeal affirmed denial of class certification on the misclassification issue, but reversed that determination as to the wage statement claim, holding that LJG has a uniform policy of not providing signature gatherers with itemized wage statements, which should have been certified as a class action.  See also Salazar v. See’s Candy Shops, Inc., 64 Cal. App. 5th 85 (2021) (because individual issues predominate, motion to certify class action for missed meal breaks was properly denied); Parada v. East Coast Transp. Inc., 62 Cal. App. 5th 692 (2021) (Dynamex applies retroactively and the “ABC Test” is not preempted by federal law); Vendor Surveillance Corp. v. Henning, 62 Cal. App. 5th 59 (2021) (S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal. 3d 341 (1989) rather than Dynamex provides an applicable standard for determining employment status for purposes of determining unemployment insurance taxes for work performed before Jan. 1, 2020).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.