Labor and Employment Law Blog

Defense Attorneys Continue to Drive Employers out of California

There are a couple of things that inevitably come in to my office nearly every week.  The first is a letter form an attorney representing an employer stating that my lawsuit is "frivolous" and that plaintiff's attorneys are driving employers out of California. The second is a question from an employer who is pretending to be an employee so they can get some free legal information. 

I am always a bit curious as to why some defense attorneys waste their time telling me that a lawsuit is "frivolous."  I will point out that these letters generally come from smaller law firms where the attorney does not know the first think about wage and hour law. However, even if they don't know the law, from a common sense point of view, the attorney should know that I take the vast majority of my cases on a contingency basis, as do most other plaintiff's attorneys.  Any lawsuit is going to take a good amount of time and money.  So, why would a defense attorney think that I would take a lawsuit that I have no hope of winning? I will also point out that a skilled attorney can eliminate a frivolous lawsuit with little effort, especially one in the wage and hour area.  If the lawsuit is indeed frivolous, simply respond with the information that the employer is required by law to provide, and I will figure it out soon enough.

There also isn't any basis to the claim that California's employment laws are discouraging employers from doing business here.  California has had significant employment growth for some time.  One defense attorney responded to this by saying that it was not that jobs were leaving California, they simply are not coming in as fast as they would without plaintiff's attorneys such as myself.  He responded that California's growth rate would be "double" what it was, if it were not for these wage and hour laws.

I can only say that if his statement is true, he should be thanking plaintiff's attorneys such as me.  California has one of the best economies in America.  If its growth rate indeed doubled, it would currently employ over 41 million workers as opposed to the 16.7 that it currently employs.  California would have a population of about 83 million people and produce about 1/4 of America's economic output.  We would have approximately 104 representatives in the House of Representatives out of a total of 435. (Using the time period in the above linked report). Needless to say, traffic here would be pretty bad.

I will also point out that even if you feel that the "double" estimate provided by one defense attorney was simply an exaggeration, any smaller number would reach the exact same results -- it would just take more time.  That is, any systematic advantage that one State has over other States, in terms of economic growth, will eventually make that State dominate over all others.  So, there really isn't too much merit to the argument that plaintiff's attorneys are driving any businesses out of California.

However, I do have some evidence that defense attorneys make it difficult for employer to do business here. About each week, I receive an email from an "employee."   It reads something like this, "I work for a large company, and it seems like the company wants to do the right thing.  They are telling me that ....., but I think that ......."  (Insert some current issue of employment law). "Can you tell me which of these is correct?" Now, you can say I am just being paranoid in thinking that employers are posing as employees just to get some free information.  However, in a good number of cases, the person forgets to turn their signature block off.  I received one just his last week that was an "employee" looking for information about the scheduling of the 10 minute break periods.  The signature block was from the V.P. of Human Resources for a major corporation.  It may be that the V.P. of Human Resources of a major corporation is really concerned that she is not personally receiving a proper 10 minute break, but I suspect that she was really looking for some information on how to pay her employees. 

Of course, it is good that an employer is genuinely interested in paying their employees properly, but it would be even better if the defense bar could properly and economically educate their clients about these laws.  I am certain that the company mentioned above could afford competent defense counsel -- in fact they were probably working with several different ones.  However, they still found it easier to surreptitiously pose as an employee and ask a plaintiff's attorney for advice than to pick up the phone and talk to one of their defense attorneys that they deal with all the time.

Now it may be that employers really just hate plaintiff's attorneys and would rather ask the devil himself for advice rather than a plaintiff's attorney.  But given that I get so many questions from employers, this really makes me wonder what their opinion of defense attorneys is.          

$1.1 Million in Attorneys Fee for $30,300 in damages

Many readers of my blogs and the gotovertime website know that a major tool that employees have in getting employers to comply with the law is that the employee can frequently recover attorneys fees if they prevail.  Frequently, defense attorneys discount this by stating that judges "never" award attorneys fees in excess of the amounts that are recovered.  However, a recent case illustrates that this is simply not the case.  In Harman v. City and County of San Francisco, 158 Cal. App. 4th 407, the Plaintiff was awarded $30,300 in damages for racial discrimination.  The appellate court then upheld an award of $1,113,905 in attorneys fees. In particular the Court held that "[t]he law does not mandate, however, that attorney fees bear a percentage relationship to the ultimate recovery of damages in a civil rights case." 

This is an extremely useful case because frequently, defendants can make mountains out of mole hills.  If plaintiffs were limited to recovering only a percentage of the amount recovered, it would eliminate effective representation for any claims less than a couple hundred thousand dollars.  Many employment cases simply will not amount to over $100,000, so plaintiffs' attorneys are reluctant to take them.  Hopefully, this case will set a good precedent that plainitffs are entitled to their full attorney fees, even if the actual value of the case is small. 

I will point out that to many individual plaintiffs, such as many of the ones I represent, $30,000 is no small amount.  Without the proper award of attorneys fees, many of these people would not be able to receive adequate legal representation.

It is also interesting to note that the attorneys fees in the Harman case were paid largely to a conservative legal foundation, The Pacific Legal Foundation.  The Pacific Legal Foundation lists its goals as representing individuals who have "grown weary of overregulation by big government, overindulgence by the courts, and excessive interference in the American way of life." (See http://www.pacificlegal.org/?mvcTask=about).  Hopefully, they will put the $744,756.75 that they were awarded to use in insuring that the courts are open to all employees who rights have been violated.