Employment

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EMPLOYMENT CLASS ACTION DEFENSE
Before you hire an army of big-firm lawyers with high rates, let us evaluate your case and customize a solution that may save you tens of thousands of dollars.

Click here
for a short video about solutions for businesses facing employment class actions.

Our lawyers have successfully defended Fortune 500 companies, large privately held companies, and medium to small businesses in employment class actions with millions of dollars in exposure. We have handled class and collective litigation in a wide number of industries, including manufacturing, food processing, elder/home care and transportation, wine making, warehouse and supply chain, shipping and trucking, grocery, retail, mortgage, insurance, computer and information technology, financial and professional services, specialized and temporary staffing, education, and construction.

We can provide you with experienced class action defense lawyers for a lower price and a defense strategy that fits the needs of your business and budget.
WAGE AND HOUR CLASS ACTION DEFENSE
Wage and hour class action cases are on the rise, especially in the Central Valley. Our lawyers have successfully defended large, medium, and small companies in cases alleging company-wide or statewide wage and hour violations. We have represented some of the largest companies in California and defended wage and hour class actions in every federal court in California, in every major county in the Central Valley and Bay Area, and on appeal at both the federal and state levels.

Our lawyers have successfully defended a variety of large wage and hour class and collective actions alleging unpaid wages, misclassification of salaried employees, off-the-clock work, meal and rest period violations, wage statement violations, misclassification of independent contractors, unreimbursed expenses, breach of contract, forfeiture of commissions or incentive bonuses, unfair business practices, and other federal and state wage claims.
WAGE AND HOUR TRIAGE: INITIAL CLASS ACTION EVALUATION
Contact us before you hire a big law firm and before you start receiving exorbitant bills for a scorched-earth defense. BigLaw often blindly charges into litigation without realistically assessing exposure, determining your needs and budget, or exploring early and inexpensive resolution.

We will assess your case to help you (1) understand potential exposure, (2) determine what your legal spend should be, and (3) evaluate whether early settlement is viable.

Although we are accomplished defense lawyers, we have a successful track record of effectively negotiating pre-litigation settlements with plaintiffs’ lawyers that save clients tens of thousands in legal fees.  More than 95% of all civil cases settle before trial, and this percentage is higher with wage and hour litigation.  Before spending tens of thousands on lawyers, you should obtain an initial evaluation that fully explores early and efficient resolution options.
PRIVATE ATTORNEY GENERAL ACT (PAGA) DEFENSE
PAGA actions are the latest settlement-extraction tool in the plaintiff lawyer’s toolkit. Plaintiffs’ lawyers can take a minor technical violations and pencil out hypothetical exposure in the hundreds of thousands or millions by stacking up Labor Code penalties.

 

Click here for a video that explains how plaintiffs’ lawyers use PAGA to extort settlements from employers. Our employment lawyers have been handling PAGA actions since the statute was first enacted and have been at the forefront of developing effective defense and settlement strategies to these extortion-styled lawsuits.

Brandon McKelvey has defended employers in numerous PAGA actions including one of the largest PAGA-only claims in California in which the potential exposure was over $30 million. PAGA claims require quick and early evaluation and often require creative and aggressive settlement maneuvers.

We can help companies quickly identify potential exposure, fix any potential technical violations (to stop potential violations from racking up), and develop an early-exit strategy to resolve the litigation quickly and inexpensively. You should consult a lawyer as soon as your company gets a notice addressed to the Labor and Workforce Development Agency (LWDA) that an employee intends to sue you under the PAGA.
WAGE AND HOUR ADVICE AND COUNSELING
Wage and hour compliance can be challenging in California given that the California Labor Code and Wage Orders are some of the most exhaustive employment laws in the world.  The risk of noncompliance is higher than ever with an alarming number of class actions and PAGA representative actions being filed against employers for even the smallest and most ticky-tack Labor Code violations.  We regularly advise large, medium, and small employers on wage and hour law compliance and work with businesses to develop business-first solutions.  Click here for a short video that explains how our firm works with businesses to develop customized compliance solutions.During his career, Brandon McKelvey has been a contributing author of wage and hour treatises, regularly blogged on California wage and hour issues, and presented at seminars and webinars on these topics.  In addition, Brandon has trained over 1,200 managers in California on wage and hour issues.  Our firm provides employers with comprehensive advice and practical solutions on wage and hour issues, including the following:
  • Wages: When you have questions about employee wages (e.g., minimum wage, overtime, regular rate, vacation pay, reporting time pay, or piece-rate pay).
  • Wage Statements: When you have questions about paystubs or want to make sure your wage statements are compliant.
  • Hours: When you are trying to figure out what constitutes compensable hours worked (donning and doffing, pre-shift and post-shift activities, commute time, travel time, etc.).
  • Off-the-Clock Work: When you are trying to determine what off-the-clock activities should be compensated.
  • Meal and Rest Periods: When you have questions about meal and rest period requirements, meal period waivers, or on-duty meal periods.
  • Rounding: When you are considering rounding employee time entries or you would like to determine whether your rounding system is compliant.
  • Schedules: When you want to adopt an alternative work schedule, split shift, or nontraditional work schedule.
  • Piece-Rate: When you are evaluating whether to use a piece-rate pay structure.
  • Bonus or Commission Plans: When you are drafting a compensation or incentive plan or have questions about incentive compensation, bonuses, or commissions.
  • Exempt Classification: When you have to decide whether to classify an employee as exempt from overtime or would like to audit exempt classifications.
  • Expense Reimbursement: When you want to know what expenses are reimbursable (e.g., mileage, uniforms, training, travel, meals, per diems, etc.).
  • Final Pay and Waiting-Time Penalties: When you are trying to figure out how to handle final pay for an employee who is terminating or trying to remedy late payment of final wages.
  • Overpayments or Deductions: When you overpaid an employee or would like to take deductions from pay.
WAGE AND HOUR TRAINING
Given the growing number of wage and hour lawsuits against California employers, wage and hour training is an essential tool for employers to safeguard their business against litigious employees and extortionist plaintiffs’ lawyers.  Our firm is one of the first and only firms to offer comprehensive wage and hour training for businesses.  In addition to basic compliance topics, this training provides managers with tools on how to effectively manage employee work time, breaks, and other aspects of employment to avoid wage and hour disputes and lawsuits.

Our firm has been on the cutting edge of wage and hour training and has developed one-of-a-kind interactive training using Prezi (a modern and sleek presentation software).  Our lawyers have trained over 1,200 managers across the state on wage and hour compliance issues and on effective employee management to minimize potential wage and hour violations.  If you are interested in our wage and hour training, please contact Brandon McKelvey.
CA OVERTIME, MEAL AND REST PERIOD, AND WAGE STATEMENT CLASS ACTION DEFENSE AND COMPLIANCE
Overtime, breaks, and wage statements are three of the hottest claims in California wage and hour law right now.  Most class actions filed against employers focus on one or more of these claims. Our lawyers have a successful track record of efficiently defending or favorably resolving class actions.

Brandon McKelvey has handled wage and hour class action cases for over twelve years involving thousands of employees with potential seven- to eight-figure exposure.  He has argued class action cases in front of numerous state and federal courts throughout California, including the California Court of Appeal.

Our firm uses this experience to help employers (1) dispose of cases prior to class certification, (2) narrow the scope of class discovery to reduce legal spend, (3) defeat class certification, or (4) negotiate a favorable individual or class action settlement where appropriate.  We also assists employers in evaluating timekeeping and break policies and wage statements to avoid litigation in the first place.
EXEMPT CLASSIFICATIONS CLASS ACTION DEFENSE AND COMPLIANCE
Our employment lawyers have successfully defended employers in a wide range of industries in cases alleging that employees were misclassified under the administrative, executive, professional, or outside sales exemptions. We have represented employers in exemption cases in courts throughout California and the nation.
We have a strong track record of defeating class certification in exemption cases, including a first-of-its-kind ruling denying class certification before discovery. In addition to defending these cases, we help employers evaluate exempt classifications to avoid litigation in the first place by revising job descriptions, evaluations, and other personnel documents.
WAGE, BONUS, OR COMMISSION DISPUTES
Compensation disputes can take many forms such as Labor Commissioner complaints, lawsuits, or even class actions. It is important for companies to have a lawyer who understands the legal requirements for compensation as well as experience litigating compensation disputes.
Brandon McKelvey has significant experience advising employers on compensation plans (including incentive, bonus, and commission plans) and defending employers in compensation disputes.
LABOR COMMISSIONER CONFERENCES AND HEARINGS
Labor Commissioner conferences and hearings with the California Department of Labor Standards Enforcement (DLSE) should not be taken lightly. Employers often try to handle these on their own or hire inexpensive counsel to appear with little information about the claim. These claims can be the spark that ignites a wage and hour class action. As such, these claims should be handled with care.

 

You should call us when you first receive a Notice of Claim Filed and Conference, Notice of Hearing from a Labor Commissioner at the DLSE, or any kind of DLSE wage complaint or investigation. We can evaluate whether there is potential exposure beyond the claimant and help you prepare for the conference and hearing. Our lawyers have handled multiple conference and hearings and have successfully defended employers in these proceedings or carefully negotiated settlements to avoid larger exposure.
FAIR LABOR STANDARDS ACT COLLECTIVE ACTION DEFENSE
Our lawyers have defended companies in collective actions under the Fair Labor Standard Act (FLSA). Plaintiffs’ lawyers are increasingly bringing FLSA claims along with state class action claims in actions known as collective and class action hybrids. Understanding the difference between the FLSA collective action procedures and Rule 23 class action procedures is important to effectively litigating these hybrid cases. We have successfully represented clients in hybrid actions and helped companies decertify collective actions.

 

Our attorneys have the rare experience of handling a decertified nationwide collective action, which consisted of 37 individual FLSA lawsuits and over 100 arbitrations across the country. It is vital for a company to understand what the end game is in collective actions and realize that it may end up with multiple individual lawsuits in many jurisdictions, which is the latest strategy from plaintiffs’ lawyers to increase their leverage in negotiations. We can help companies look down the road at the outset of the litigation and help them navigate their way through hybrid actions.
BONUS, INCENTIVE, OR COMMISSION PLAN DRAFTING
Bonus, incentive, and commission plans are often challenged by former employees, either through a Labor Commissioner complaint with the Department of Labor Standards Enforcement (DLSE) or in court.  To prevent litigation it is important to consult with an attorney before drafting or revising compensation plans.

 

Brandon McKelvey has drafted compensation plans for some of the largest employers in the country and has litigated compensation plans in court.  He can quickly identify potential issues in compensation plans or help you defend a claim for unpaid incentive compensation or commissions.
 
MANDATORY HARASSMENT-PREVENTION TRAINING
Our attorneys have experience litigating harassment and discrimination cases on both sides of the bar.  This unique experience allows us to provide fun, interactive, and effective mandatory anti-harassment and prevention training.  Our firm can provide this training for a flat fee and in a format that is customized to your business.
INDEPENDENT CONTRACTOR ADVICE AND CLASS ACTION DEFENSE
Various government agencies and plaintiffs’ lawyers all over California have targeted independent contractors and are challenging their status.  These cases often take the form of class actions or government audits.  The potential exposure in these situations can be overwhelming.  Our lawyers have represented companies in audits and in cases alleging independent contractors should have been classified as employees.  

 

If you are facing an independent contractor misclassification class action or audit, we can help you assess the classification and prepare a defense. We also assists businesses in evaluating independent contractor engagements to avoid litigation in the first place.  We have helped businesses prepare comprehensive independent contractor agreements, acknowledgments, training, and other documentation to prepare for potential challenges to the independent contractor relationship.
CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT (EDD) OR US DEPARTMENT OF LABOR (DOL) AUDITS
Government agencies, like the US Department of Labor (DOL) and the California Employment Development Department (EDD), are increasing their audits of businesses utilizing independent contractors.  These agencies, particularly the EDD, have become aggressive in their auditing of businesses and are often inclined to find that independent contractors should have been classified as employees.  In some audits, the EDD will only interview a small number of independent contractors, but make a determination that all of a business’s independent contractors are misclassified.  This opens up the business to significant tax liability, potential back wage payments, and other penalties and fines.  Current law allows the EDD to go back three years to seek reimbursement for unpaid payroll taxes, employer insurance payments, and to asses both fines and penalties.  Even worse, a government audit can be the catalyst for a wage and hour class action, which allows independent contractors to go back four years and to potentially recover additional damages, penalties, and attorneys’ fees.  Even if a business only utilizes a few independent contractors, the potential fines, penalties, and damages can add up.  If a business has numerous independent contractors, then the exposure can be crippling.

 

It is not uncommon for businesses to go along with an audit and to cooperate with what seems like a friendly auditor only to ultimately be lead to the point where the agency finds misclassification and assesses massive fines and penalties.  For this reason, it is critical for a business to obtain counsel to receive advice and guidance during the audit.  Our lawyers have experience advising businesses in the midst of an audit and have devised solutions to help businesses defend the independent contractor classification during an audit.  This may include an analysis and presentation of data and documents to an auditor or obtaining written statements from independent contractors explaining their independence and autonomy.  A business facing an audit should also consider preparing a comprehensive position statement for the auditor that explains all the reasons the independent contractors are classified as such.

 

If you are currently facing an audit, our firm can help guide you through the process.  If you currently utilize independent contractors but are not facing an audit, we can help you evaluate your potential audit risk and develop solutions (such as independent contractor agreements, acknowledgments, training, and other documentation) to prepare your business for potential challenges to the independent contractor relationship.
GENERAL EMPLOYMENT LAW DEFENSE AND COUNSELING
Our lawyers have seen employment litigation from both sides of the bar and they use this experience to provide practical advice to clients that helps them steer clear of litigation. Our lawyers regularly advise employers in the following situations:
Hiring: When you have questions about hiring or drafting offer letters.
Employee Handbook Revisions: When you need to create, revise, or update your employee handbook.
Mandatory Harassment-Prevention Training: When you want fun and interactive mandatory anti-harassment and prevention training.
Employee Discipline: When you need help disciplining, demoting, counseling, or writing up an employee.
Employee Termination: When you are getting ready to terminate an employee.
EEOC Complaint or Investigation: When you get notice of an employee filing a complaint with the United States Equal Employment Opportunity Commission (EEOC) or are facing an EEOC investigation.
DFEH Complaint or Investigation: When you receive notice of an employee filing a complaint with the California Department of Fair Employment and Housing (DFEH) or are facing a DFEH investigation.
Independent Contractors: When you are getting ready to engage or are evaluating your relationship with an independent contractor, or if you are facing a lawsuit alleging that you misclassified one or more independent contractors.
Co-Employment: When you are considering using temporary staffing or have questions about joint employer issues or when you have been sued as a joint employer.
 
HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION LAWSUITS
Our lawyers have successfully represented employers in wrongful termination, discrimination, failure to accommodate, and wrongful termination lawsuits. We have defended employers of different sizes and from various industries in emotionally charged cases where an employee is seeking significant damages. We can provide the big-firm experience and acumen to defend companies in these high-stakes employment disputes at a lower price and with an approach that is customized for your business.

 

EMPLOYEE HANDBOOK AND POLICY DRAFTING
Employee handbooks, policies, and procedures often take center stage in individual employment and class action lawsuits.  A good policy can mean the difference between being held liable or getting the case dismissed.  Our attorneys can bring their knowledge of California employment law and their experience in employment litigation to bear in helping you create, revise, or modify your employee handbook or employment policies.
 

We have also handled many types of general litigation you can view.

Please also visit the What We’ve Done page to see examples of specific cases we’ve handled.