As 2013 draws to a close a couple of thoughts about the coming year and the direction of California law in general. What do we expect to see in 2014 and what trends are we continuing to see?
California Law Cases
In terms of cases, the big case out there in California continues to be Iskanian. The future of class arbitration and/or PAGA is of utmost importance to plaintiff side wage and hour practitioners. It seems probable that we will see an opinion on Iskanian in 2014 but you never know the speed at which the California Supreme Court will move. The other California Supreme Court case to watch is Duran. That case focuses on the requirements of class certification. Specifically what sort of statistical sampling may or may not be allowed in the certification analysis. This is a tricky issue that should offer some surprises. Again, an opinion should be down in 2014 but its not a guarantee.
Other issues that seem to be brewing are issues relating to PAGA specifically. There are very few published decisions that discuss a PAGA trial and any sort of burden issues especially if class certification was denied. I would imagine that these issues will percolate at a minimum in the trial court and perhaps at the appellate level in 2014 and 2015.
Additionally, with the minimum wage going up in January, there are multiple opportunities for employers to make mistakes. While most employers will get the rate increase correctly, there are other wage rates that are tied to the minimum wage which may not also be raised. One example is the inside sales exemption where one must be paid 1 1/2 the minimum wage for all hours worked. This wage rate then will raise from $12 to $13.50. If retailers don't adjust these minimums in the software systems exposure can be created.
We also continue to see pay check and bad policy claims as continuing the class action landscape. In light of the victories in Brinker in the Superior Court, bad policies for meal and rest breaks will continue for a few more years and start to wane by 2016 as we approach the 4 year anniversary of Brinker. In the meantime, many large employers especially those out of state have potential exposure regarding meal and rest periods.
While there are no blockbuster cases out there, there will continue to be a steady stream of cases in this area of practice.
Happy New Year.