Class Action FAQs
While the subject matter of class action lawsuits can vary widely, two factors are almost always present for every class action: (1) the issues in dispute (factual and/or legal) are common to all members of the class, and (2) the persons affected are so numerous as to make it impracticable to bring them all before the court.
Examples of class action cases include:
- Employees of a business who have not been paid all the wages and/or benefits owed to them under state or federal law;
- Employees who have not been timely paid their final wages at time of termination or who have not been paid all of their wages at time of termination;
- Employees who have not been timely paid their final wages at time of termination or who have not been paid all of their wages at time of termination;
- Employees who have been victims of a pattern or practice of discrimination (racial, age or gender discrimination);
Those who have been victimized by unfair or fraudulent business practices.
- A class action suit is filed when different people combine their lawsuits because the facts of the case are so similar. This is designed to save court time, and allow one judge to hear all the cases at the same time and make one decision binding to all parties.
If the court agrees to certify the case as a class action, that means the court agrees the case meets the criteria for class certification. A decision to certify the class action allows the case to move forward to trial in order to efficiently resolve the common issues shared by the class members.
Step 1: The first step is the drafting and filing of a complaint against the defendants. This document is then filed in court and delivered or “served” on the defendants by the U.S. mail or a process server.
Step 2: After the complaint is filed, the defendants will usually file an answer denying the allegations. Alternatively, they may elect to challenge the complaint by filing certain motions challenging the lawsuit. If motions are filed, an answer will be required after the judge rules on the motions unless the case is dismissed.
Step 3: After the answers are filed and any motions ruled on, a period of “discovery” will usually take place. Discovery involves the lawyers demanding documents from the other side, asking written questions, and taking depositions. Often courts will hold a conference with the lawyers and set a timetable for preliminary discovery needed for certification to be completed.
Step 4: After all preliminary discovery is completed, the plaintiff will file motion to certify a class action. The defendants will file objections to certification. The Court will have a hearing. If plaintiffs win, the case proceeds to be certified.
Step 5: Notice. If the lawsuit is one for money, the court will order notice go to the class. Notice is published in the newspaper or sent through the mail. This notice advises class members of their rights, and sets deadlines for objecting, “opting out,” or entering an appearance through a lawyer.
Step 6: Trial or Settlement. After final certification is granted, additional discovery may be needed before the case is tried. After that discovery is completed, the case is set for trial unless it settles. The trial of a class action procedurally is the same as for any other civil lawsuit.
Unless your personal damages are very large, you will most likely need other parties to induce an attorney to take the case on a contingency basis. Class actions offer the benefit of aggregating relatively small claims into one so that you can attract attorneys who are skilled and knowledgeable in order to prosecute your case for the benefit of all. It is possible to bring a competing class or an independent court action against defendants. The relative merits of each course should be discussed with counsel and will depend on monetary amounts, number of parties involved, etc.
We provide our services on a contingency fee basis. This means that we are not paid unless we are successful in obtaining a recovery on behalf of the class members. If we are successful, we will petition the court for an award of attorneys’ fees and reimbursement of expenses from the recovery. How much we receive is up to the court.
Wage and Hour FAQs
It is a general rule that employees are entitled to overtime compensation. Employees who are “exempt” from this rule are not entitled to overtime compensation. The laws that govern the payment of wages are designed to protect employees. Thus, exemptions – or reasons for not paying overtime – are narrowly construed against the employer.
There are a limited number of exemptions available for employers to claim. Each exemption has a number of tests all of which must be satisfied by the employer for the exemption to be valid. If the employer cannot prove every test for the claimed exemption, then the employee is not exempt and entitled to overtime compensation.
Determining which exemption your employer is claiming may depend on the activities you are expected to perform, how you are compensated, and the industry you work in. Contact the attorneys at Wynne Law Firm to get an opinion on whether you have been properly designated as exempt from overtime compensation by your employer.
Employers sometimes label workers as independent contractors when they are actually employees. That’s because employers who use independent contractors rather than employees don’t have to pay payroll taxes for independent contractors, and are not liable for payments under workers’ compensation, unemployment insurance, disability insurance, or social security for their independent contractors. Likewise, employees have protections under state wage and hour laws while independent contractors do not.
There is no “black and white” definition of who is an independent contractor. Instead, there are a number of factors to decide if you are an independent contractor or employee. All the factors are considered together in making the determination. While no single factor will decide whether you are an employee or an independent contractor, the most important factor is the level of control the employer exerts over the employee. If the employer tells how, when and where the worker completes the assignment that points to control. On the other hand, an independent contractor is given a goal and how that independent contractor reaches that goal is up to him or her. Contact attorneys at Wynne Law Firm for an opinion on whether you are an employee or independent contractor.
Under California law no employer shall employ any non-exempt person for a work period of more than five (5) hours without an off duty meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.
Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. Further, employers must keep time records showing whether meal periods are taken.
If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period.
Failure to comply with the meal period laws subjects the employer to liability for one hour of pay for each violation.
Under California law every employer shall authorize and permit all non-exempt employees to take off duty rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.
Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. Failure to comply with the rest break laws subjects the employer to liability for one hour of pay for each violation.
- training and seminar costs
- mileage or all related car expenses, including making bank deposits
- cell phone expenses
- telephone charges
- postage and other office supply expenses
- advertising costs
- business lunches
- costs associated with transaction errors; and
If an employer fails to reimburse the employee, the employer may be held responsible for the employee’s out-of-pocket costs plus interest from the date the employee incurred the expense as well as the employee’s attorneys’ fees and costs to collect the unreimbursed expenses.
Under California Labor Code, Section 2804, an employee may not waive their right to full reimbursement for expenses and any such agreement is deemed unlawful and unenforceable. Thus, employer policies that waive an employee’s right to expenses after a certain deadline are not enforceable. By law, employees are entitled to reimbursement for up to 4 years from the date the expense is incurred.
Thus, if the employer requires the employee to drive, such as a courier driver, an outside sales person, or even to drive to the bank to make daily business deposits, the employer must cover the employee’s mileage. If the employer requires the employee to have a cell phone and make calls on that phone, the employer must cover the cost of the business related calls. If the employer requires the employee to have a home office, the employer must cover certain expenses reasonably and necessarily related to that office.
Some common unlawful payroll deductions include:
Gratuities. An employer cannot collect, take, or receive any gratuity or part thereof given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee. However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers.
Compensating other employees. Most commonly in the financial services industry, many firms have made it a practice to strongly encourage employees like registered representatives, i.e., Financial Advisors, Financial Consultants or brokers, to divert a portion of their pay toward their Sales Assistants to effectively subsidize their compensation. Employees’ compensation is overhead to the employer and the employer cannot shift its responsibility on to its employees. While many employers have sought to get around the laws prohibiting such shifting on responsibility, the impact of one employee paying another’s employees compensation is the same.
Ordinary Losses. An employer cannot make an employee pay for losses incurred due to simple negligence, e.g., breakage of a product/equipment, non-payment by customer, or a broken trade in the securities industry. Losses occurring without any fault on the part of the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the employer must bear such losses as a cost of doing business.
Uniforms. If an employer requires that an employee wear a uniform, the employer must pay the cost of the uniform. The term “uniform” includes wearing apparel and accessories of distinctive design and color. If the clothing is also suitable for everyday wear and can be worn outside of the workplace, the employer may not be responsible for those costs.
Medical or Physical Examinations. An employer may not withhold or deduct from the wages of any employee or require any prospective employee or applicant for employment to pay for any pre-employment medical or physical examination taken as a condition of employment, nor may an employer withhold or deduct from the wages of any employee, or require any employee to pay for any medical or physical examination required by any federal or state law or regulation, or local ordinance.
Photographs. If an employer requires a photograph of an applicant or employee, the employer must pay the cost of the photograph.
Bond. If an employer requires a bond of an applicant or employee, the employer must pay the cost of the bond.
- Any time that you work in excess of 8 hours in a day or 40 hours in a week you are required to be compensated at a rate of 1.5 times your “regular rate of pay.”
- Any time that you work in excess of 12 hours in a day you are required to be compensated at a rate of 2 times your normal rate.
- Any time you work the seventh day of a workweek, you are required to be paid 2 times (i.e., double time) for any hours over 8 that day.
Overtime is based on the regular rate of pay, which is the compensation you normally earn for the work you perform. The regular rate of pay may be determined in different ways such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.
Ordinarily, the hours to be used in computing the regular rate of pay may not exceed the legal maximum regular hours which, in most cases, is 8 hours per workday, 40 hours per workweek. If you are paid on an hourly basis, that is your regular rate. If you are paid on a salaried basis, divide your annual salary by 2080 (the number of 40 hr. weeks in a year). For commissions, while there is some disagreement, on way to calculate the regular rate is to divide your total compensation by the total number of hours worked. For employees earning more than one type of pay, blended rates may need to be calculated. Contact attorneys at Wynne Law Firm to determine what your regular rate is.
Termination based on an illegal form of discrimination is illegal. An illegal form of discrimination is one based on an immutable characteristic of the individual that has nothing whatsoever to do with how they perform the job. Most commonly, this is known as discrimination based on race, sex, religion, national origin, age, or disability for instance. There are also other forms of illegal termination related to the employee’s individual rights. For instance, it is illegal to terminate an employee for voting, jury service, military duty, maternity or medical leaves, whistleblowing, filing a claim for workers’ compensation, asserting a claim for unpaid wages.
If the employer fails to timely provide you with a final paycheck, the employer may be subject to waiting time penalties under California law. The penalty is one day’s wage for every day you were not paid up to a maximum of 30 days.
Employment Discrimination FAQs
Disparate treatment occurs when an employer treats an applicant or employee less favorably than similarly situated applicants or employees, and the different treatment is because of the person’s race, color, religion, sex, national origin, disability, or status as a protected veteran. The treatment must be intentional on the part of your employer. Therefore, you have to show either intent, or enough facts for the court to infer your employer’s intent.
Disparate impact occurs when an employer has policies or practices that appear to be fair on the surface and are evenly applied but have a discriminatory impact on members of a particular sex, race or ethnic group, or individuals with disabilities.
Disparate impact cases usually rely on statistical evidence to show that a policy disproportionately harms members of a protected class. To make a prima facie showing of disparate impact, a plaintiff does not need to show an employer’s motive—but only the outcome in practice.
- Assigning all Hispanic employees to a particular work area;
- Paying women less than men for the same work;
- Teasing employees who speak with an accent that goes beyond occasional or a single incident;
- Promoting only certain employees based on their sex or race;
- Requiring tests, like math tests or lifting requirements, that are not related to doing the job but that screen out applicants of particular groups; and
- Denying paid sick leave to female employees recovering from childbirth but allowing paid sick leave for employees recovering from knee surgery.
For example, tests that exclude members of a particular sex, race or ethnic group, national origin, religion, or individuals with disabilities would have to be based on a legitimate job-related or business need.
Medical and Dental Malpractice FAQs
Malpractice may occur in the initial diagnosis of a patient, when a doctor fails to notice an important symptom, fails to recognize a serious illness for what it is, or prescribes the wrong treatment. It may also occur before or during any type of medical treatment or in post-operative patient care. Medication errors, surgical injuries, misdiagnosis and anesthesia errors are some of the primary types of medical malpractice.
How to determine if you may have been a victim of medical malpractice:
- Did you or a family member suffer a severe or permanent injury while under the care of a doctor, hospital or other health care provider?
- Did your doctor keep information from you about your condition or fail to diagnose a surgical risk that caused your injury?
- Did your insurance company question certain procedures, tests or diagnoses, thereby delaying treatment or keeping you from getting appropriate surgery?
- Did your doctor delay treatment by failing to test and diagnose a disease in a timely manner?
- Did your doctor cause an injury to you or your baby during childbirth?
- Did you take prescription medication that caused an injury?
- Did you suffer injury because the equipment used during surgery or treatment was faulty, broken or handled improperly?
- Did your condition worsen because your doctor failed to refer you to a specialist?
- Did your doctor fail to follow up on an abnormal test result or order a proper test in a timely manner?
- Did your condition worsen because you were discharged too early from a hospital or other care?
If you answered “yes” to any of these questions or are concerned about medical treatment you received, you may want to speak with an attorney knowledgeable with the laws of medical malpractice. In California, the statute of limitations for a medical malpractice claim is usually three years from the date of injury or one year from the date of discovery of the injury, whichever occurs first. Thus, once you suspect, know or should have known that you have been the victim of malpractice, the time in which you may legally file a complaint may begin to run.
There are two major exceptions to this rule: First, in cases involving a child under age six, the malpractice action must be filed within 3 years of the date the injury occurred or before the minor’s eighth birthday, whichever period is greater.
Second, in cases where the hospital is owned or operated by a county or local administrative agency, a claim must be filed within six months of the birth, death, or negligent act, and such claims are a prerequisite for any claim in court. As such, the failure to file an administrative claim within six months of an incident requires the court to dismiss the lawsuit.
Dental professionals include:
Dental malpractice does not occur simply because you did not receive perfect care. Dental malpractice is failure to provide adequate care due to incompetence, negligence, or intentional misconduct. It is not enough that you experience some short-term pain after visiting the dentist. It is also not enough that you have to return to the dentist for a second treatment visit. Dental malpractice can take several forms. Some common examples of California dental malpractice include:
- Injuries to the nerves of the tongue, jaw, chin and lips;
- Numbness or loss of taste sensation;
- Structural injuries to the tongue, jaw, chin or lips;
- Injuries or death caused by improper or negligent administration of anesthesia;
- Failure to diagnose or treat oral cancer, periodontal (gum) disease, or other oral conditions;
- Delayed or improper treatment of an oral condition;
- Injuries or infection to teeth, gums or jaw bone;
- Injuries associated with tooth extractions or implants;
- Failure to obtain informed consent, or treatment exceeding the scope of informed consent.
If you are concerned about dental treatment you received, you may want to speak with an attorney knowledgeable with the laws of dental malpractice. In California, the statute of limitations for a medical malpractice claim is usually three years from the date of injury or one year from the date of discovery of the injury, whichever occurs first. Thus, once you suspect, know or should have known that you have been the victim of malpractice, the time in which you may legally file a complaint may begin to run.
Personal Injury FAQs
Personal injury law is based on the concept that if a person is injured or killed due to another person’s negligence, that person or his or her heirs has the right to be compensated in money damages. It strives to determine who is at fault for an accident, then how much the plaintiff is entitled to receive from the responsible party