Some Observations on EPL Trends in California

• Seeing more individual wage and hour claims.

• Seeing the small wage claims (meal and rest periods) being tacked onto discrimination claims.

• More plaintiffs asserting PAGA (Private Attorney General Act).

• More plaintiffs going straight to court on their state wage claims as opposed to filing their wage claims with California Labor Commissioner.

• DFEH being more proactive in investigating the claims.

• If plaintiff has a lawyer, usually asking for an immediate right to sue from the DFEH so he or she can go right to court.

• DFEH trying to mediate more claims before making parties file position statements. 

• Seeing an uptick in U.S. Department of Labor audits / retaliation claims for complaining about wage and hour

• Retaliation/disability claims on the rise.

• Age discrimination claims on the rise (easy tack on, perhaps tied to economic downturn).

• Apparel industry getting audited more (DOL, etc.).

• Seeing more failure to hire claims (perhaps tied to economy). 

EPL CALIFORNIA DATA

• Increase in DFEH Settlements.

Preliminary statistics from 2010 shows that during a year of three-day furloughs, hiring freezes and budget cuts, the DFEH increased its settlements with employers from its typical $7-9 million to over $11 million. 

• More FLSA Claims Being Filed in California.

In 2009, approximately 298 FLSA lawsuits were filed in U.S. District Courts in California. In 2010, the number of FLSA lawsuits jumped to approximately 431.

(Based on total the number of lawsuits filed in the U.S. District Courts for the Northern, Southern, Eastern and Central Districts of California where the “Nature of Suit” was identified as “Fair Labor Standards Act”)

• Sizeable Number of Class Action Lawsuits in California Involve Wage and Hour Claims.

A Los Angeles Superior Court Judge tasked with handling complex class actions estimated that of the 790 class action lawsuits filed in State Courts in California in 2009, 2/3 to 3/4 involved wage and hour claims.

(Source: California Employment Attorney Blog).

• The U.S. Department of Labor Auditing Employers Nationwide for Possible Wage and Hour Violations.

In February of 2010, President Obama proposed a $25 million initiative to beef up enforcement efforts by the Department of Labor's Wage and Hour Division (“WHD”) to track employee misclassification.

The WHD has labeled the hospitality industry, along with other low industries as “high risk” in that they are more likely to violate wage and hour laws.

In March of 2010, the U.S. Labor Secretary, Hilda Solis, launched the “We Can Help!” campaign, spearheaded by the WHD, to encourage workers in the construction, janitorial work, hotel/motel services, food services and home health care industries to report possible wage and hour violations.   The U.S. Department of Labor has added more than 250 new field investigators nationwide — an increase of a third — to help in this effort.

(KBR Note: California Insureds in the construction industry have been reporting that they are being audited the WHD).