Discrimination for any reason is unfair and un-American. In too many states across America, people can get fired because of their sexual orientation. Later this summer, the US House of Representatives is expected to vote on the Employment Non-Discrimination Act (ENDA). This bill offers workers protection from discrimination based on sexual orientation or gender identity.
You may read about this bill in its entirety on the website of the Human Rights Campaign. This website also has a link that will enable you to send your personal message to your representatives in Congress.
The House is expected to vote on this critical measure when they return after the August recess. Anti-gay groups are already gearing up to fight this proposal. It’s imperative that Congress hears from fair-minded Americans in support of this legislation. Please write your Member of Congress today. Tell them to vote YES on ENDA.
TORT DU JOUR?
I guess in a way Arias v. Superior Ct. (Angelo Dairy), No. C054185) is a partial revival of the non-class class action that Proposition 64 [Voter Initiative passed on November 2, 2004] sought to end. For employees, it is still around. A pro-labor decision came down on July 24, 2007 from the Third District of the California Court of Appeal.
Arias, an individual, brought an action on behalf of himself and others under the Unfair Competition Law (”UCL”) and the Labor Code Private Attorney General Act (”PAGA” Labor Code § 2699.3 [Requirements for aggrieved employee to commence a civil action. Current revision signed into law by Governor Arnold Scharzenegger on August 11, 2004 and retroactive to January 1, 2004]). The Arias Court held that the UCL requires that a representative claim be brought as a class action because the UCL requires compliance with the class action provisions of Code of Civil Procedure section 382. PAGA, however, expressly allows a person to prosecute a representative claim without requiring that it be brought as a class action.
Labor Code §§ 2698 et. seq. are no longer cases of first impression. PAGA “simply deputizes an employee to recover a penalty under section 256, which penalty previously was recoverable only by the Labor Commission.” (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 340, fn 6.) “[P]laintiffs seeking civil penalties recoverable by the state [emphasis added] in such suits for violations of any Labor Code provision specified in section 2699.5 must now plead compliance with section 2699.3, subdivision (a)’s ‘administrative procedures’.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 382-383.)
An attorney must make sure his or her client is in compliance with the PAGA prior to filing the complaint . The attorney should also insure that the complaint alleges compliance with PAGA sufficient to withstand demurrer.
In Dunlap, the Second District has found that PAGA merely deputizes an employee to act on behalf of the Labor Commission. That is the only case law on this issue. PAGA “empowers or deputizes an aggrieved employee to sue for civil penalties ‘on behalf of himself or herself and other current or former employees’ (§ 2699, subd. (a)), as an alternative to enforcement by the LWDA.” (Id. at 337.)
As far as I know, no defendant has challenged the deputization of the plaintiffs nor has a defendant shown that the deputization violates due process or that the law, assuming the Labor Commission acted, would violate due process.
PAGA requires written notice by certified mail to the Labor and Workforce Development Agency and the employer before any PAGA action can commence. (Labor Code § 2699.3 (a)(1).)
I can foresee two grounds for a challenge but the challenges might not fare well. The first might be whether a plaintiff can seek to recover PAGA penalties for employees other than the plaintiff after denial of class certification. The second ground may be whether there can be PAGA compliance after a complaint has been filed. I believe so, if there has been compliance with PAGA because plaintiffs can act in such a capacity because they are acting in a deputized capacity under Dunlap.
PAGA is presumed to be constitutional. Unconstitutionality must be shown on its face and doubts will be resolved in favor it a statute’s validity. (7 B. Witkin, Summary of Cal. Law, Const. Law (2007 Supp.) § 75.)
PAGA is not impermissibly vague because it defines “aggrieved employee” under § 2699 (c).
It is not unconstitutional on its face because there is no showing that excessive fines will be imposed. PAGA expressly permits the Court to empower a lesser amount if the award would otherwise be unjust. Therefore PAGA, on its face, does not impose an excessive fine.
I guess PAGA will be the new “tort du jour.”
[Note-See the July 26, 2007 edition of The Metropolitian-Enterprise News (”Met News”) at page 9 for a Hard Copy of the article.]