2020 was a strange year for our litigation law firm. Typically, we are arbitrating and trying cases in court. Luckily, our settlements on controlled standby cases helped pull us through a difficult year of court closures and shutdowns.
The last case we mediated in person before the Covid shutdown was a controlled standby case. Two hospital workers rotated controlled standby shifts. They were required to respond to on-call, calls immediately. The calls dealt with doctors’ abilities to do their jobs and communicate remotely. The two workers were not always on-call. On many of the days they were on-call they were not actually called. Their supervisor stood behind them and testified she thought they should be paid to work on-call. The case settled for slightly more than $300,000 for both of the workers. Nonexempt hourly workers must be paid a minimum of half their regular shift when they report to work of a minimum of 2 hours, but 4 hours in the event of an 8 hour shift. On-call workers are usually not paid half of their shift hours every time they pick up the phone to talk about an on-call, call or every time they go into work for an on-call call. This provides an alternative damage, opposed to minimum wage and overtime, in on-call cases.
Once cases continued to transpire, but on Zoom, instead of live, we were able to obtain $275,000 for two technology workers who had on-call work. In that case, if they did not respond to the on-call calls there was a distinct possibility radio and television broadcasts would not occur. One employee obediently waited for these calls to come in desisting from a social life. The other continued on with his social life, but did not travel out of the geography. Geographic restriction is often one of the restrictions placed on employees who are on-call.
At the end of the day the employees in these controlled standby cases had to make the decision whether they would settle their cases, or try them. There simply are limits to what an employer will pay in settlement. At a certain level if an employee wants more they will have to try their lawsuit. It must also be remembered that every case has strengths and weaknesses. Settlements are based upon the likelihood of winning, what might be won, and what might be collected. Only an experienced attorney can guide the clients on these paths.
Karl Gerber one of the most experienced attorneys
in the field of Controlled Standby Pay can be reached at
Improperly paid overtime has become a large part of our law practice. Often times a single individual’s overtime pay issues are not enough for a private law firm to take the case. If the unpaid overtime is tens of thousands of dollars one individual’s overtime may be something a law firm will take on a contingency. Without a group of two to eight people unpaid overtime may have to be handled by the DLSE. The exception is overtime paid at the wrong rate of pay.
Overtime paid at the wrong rate of pay leads to numerous Labor Code violations. Besides there being numerous violations which lead to multiple monetary penalties, overtime that is not based upon the employee’s correct hourly rate are usually cases that can be filed as Private Attorney General (PAGA) actions on behalf of others or class actions even if other coworkers do not join in. In recent years the law has made it very clear overtime must include hourly rates attributable to flat rate bonuses and piece rates. Flat rate bonuses are not discretionary. Flat rate bonus situations our firm has prevailed on include rent credits, tool bonuses, bonuses based upon showing up to work, and the type of equipment used for the day. In one such case involving an oil field worker we were able to obtain a $350,000 settlement without the employee even having his deposition taken.
In 2020 our law firm also obtained a multi-million dollar settlement of a class action involving rent credits and fixed rate bonuses, but that settlement has not yet been approved by the court.
to Start a Wage Recovery Lawsuit
Dispute being able to get depositions in person, we were able to resolve a sexual harassment lawsuit for $125,000 when it became apparent the sexual harasser was not credible and he was in cahoots with his manager. In many cases employees claim managers are friends or in cahoots with higher level management who make unfavorable employment decisions against the employee. Here, the higher level manager admitted he vacationed with the harasser and the two were personal friends. The $125,000 settlement was a good case result because the victim of sexual harassment did not have any real lost wages.
In another sexual harassment lawsuit we were able to obtain $112,500 for each victim of sexual harassment without their depositions being taken. The fact there was more than one woman making the same allegations against the sexual harasser made it difficult for the employer to defeat the case. The value of a sexual harassment case is often based upon the credibility of the victim of sexual harassment, the harasser, and whether there are witnesses.
*The commentary in this article is not a guarantee nor prediction of the case results in any particular case.
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