In an opinion certified for publication today, the First District upheld a motion to decertify a sub-class in Walsh v. Ikon Office Solutions. (2007) ___ Cal. App. 4th___; A113172. The sub-class consisted of outside sales managers, whom the employee classified as exempt from overtime. Defendant sought to decertify the class on the ground that the sub-class lacked commonality.
Relying on Sav-On, the court’s analysis looked at whether the trial court had abused its discretion by not relying on substantial evidence and either (1) used improper criteria or (2) made erroneous legal assumptions. Walsh, Supra, A113172 at 10. The opinion takes Sav-On’s abuse of discretion language at its face value, and notes that the trial court used the proper criteria for evaluating commonality and that Defendant had shown that there were sufficient differences in the work performed by the individual subclass members. Id. at 12, 17.
Also of note, the court did not address the appropriateness of the procedural method used to decertify the class.

Everyone interested in the Great 226.7 Debate should read this post at the Wage Law blog. I particularly like the compilation of various predictions.

Just to expand on what I wrote below, I spend more time reseraching for this blog on legislative issues, talking to people in Sacramento, and developing stories on bills than I do on reading cases. Having done that, I’ve come to chuckle every time I hear a judge trying to divine profound meaning from a single word choice. There simply is not that much care put into one word, and, to be sure, each bill is the work of a number of legislators, staffers, and clerks. Absent an express statement of intent that is in some bills, I think many situations are open to more than one rational interpretation.

There are others out there that are far more qualified to guess, but I would like to think that my prediction was based on what I read about the oral arguments, and the political and legal pedigrees of the various justices.

Maybe I’ve grown a pair of employer shaded glasses over the years, but it’s not that I don’t see the plausability of the other side’s position. If you want to be really cynical about it, don’t strong pro-worker laws give people like me work?

About the oral arguments at law.com and Kimberley’s. (The latter is much better.)

What’s funny is that apparently no one has broached the subject that the Legislature is not nearly as careful and precise in drafting its bills as we pretend.  Ultimately, there is not going to be some Holmesesque flourish of legal brilliance that resolves the issue. 

Most likely, a divided Supreme Court rules that it is a penalty.

AB 14 - The “Civil Rights Act of 2007″
AB 71 - Inflation indexing to minimum wage
AB 124 - Meal and rest periods for municipal lifeguards
AB 147 - “To assist and enact the ADA of 1990″ (???)
AB 510 - Employee designed individual alternative workweeks
AB 948 - “To addresse the issue of overtime exemptions for highly compensated employees.”
AB 1043 - Agreeing to choice of law other than California void.
AB 1425 - Changes to termination pay for temporary employees.
AB 1467 - Further restrictions on workplace smoking.
AB 1469 - Tweaks to alternative workweek voting
AB 1707 - Changes to record retention laws
AB 1708 - DFEH to create a program targeting age discrimination
SB 189 - Employment eligibility verification
SB 342 - Rest and meal periods for armored car drivers. (?)
SB 549 - Bereavement leave as a matter of right
SB 622 - “States the intent of the legislature to prohibit” misclassification of employees as independent contractors.
SB 737 - Intent of legislature to address rest and meal period issues. (?)
SB 836 - Adds “familial status” to protected classes in FEHA
SB 940 - Companion to AB 1425

This year, I’ll be doing more in depth coverage of each bill as they progress. Stay tuned.

I don’t have much to say on the EFCA except for that I seem to be seeing an awful lot of news and commentary about it.  I’m sure the attorneys who write these are smart enough to understand that, even in the mostly unlikely event that it passes the Senate, it is not going to become law.

The California Supreme Court has granted review in the Konig case pending the decision in Gentry. As we wrote here and here, any reliance on the law of those cases before review by the Supreme Court was and is premature.

The question presented may be framed as “[w]hether a class action waiver contained in an employment agreement between is enforceable under standards set forth in Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 156,” but ultimately, these rulings will have profound meaning for the scope of what is and what is not conscionable in employment contracts. As such, you can expect strong push-back on this one, including from the legislature.