by Michael Kun
The other day, an attorney told me he believes that the decade-long wave of misclassification class actions in California is all but over.
Considering the fact that I’m currrently handling several such cases, I told him I disagreed: the wave may have crested several years ago, but it is not over.
We may both have been wrong.
A much-publicized Ninth Circuit opinion earlier this week suggests that these cases in fact are alive and well in California, and it may serve as an impetus for the increased filing of more such actions.
On Tuesday, in Lynne Wang v. Chinese Daily News, Inc., the Ninth Circuit affirmed a $7.7 million award to a class of journalists writing for a Chinese language newspaper.
The history of the case — a hybrid state/FLSA action — is truly a tortured one, and I will leave it to you to review the history in the Ninth Circuit opinion, if you are so inclined. It involves a jury trial, a bench trial, and allegations of coerced "opt outs," most of which may be more interesting to lawyers than non-lawyers.
What is most important is that the Ninth Circuit concluded that journalists for the paper had been misclassified as exempt. It concluded that their work required "intelligence, diligence and accuracy" — not "imagination, originality or talent." As such, they could not be properly classified as exempt under the creative professional exemption, and were entitled to unpaid overtime, premium pay for missed meal periods, and a host of statutory penalties.
While the misclassification of journalists may appear to be a subject of little or limited interest to employers outside that industry, the Ninth Circuit’s analysis is one that is worthy of review. It may provide a road map to plaintiffs’ counsel in other cases as to what to argue where an employer has relied upon the creative professional exemption, as well as providing some suggestions as to how to attack other exemptions.
The decision should serve as yet another reminder to employers to review carefully the designations of employees as exempt.