Minami Tamaki LLP Partner Minette A. Kwok recently joined the American Immigration Lawyers Association’s (AILA) Business Immigration Committee.
AILA is the national association of over 11,000 attorneys and law professors who practice and teach immigration law. AILA Member attorneys represent U.S. families seeking permanent residence for close family members, as well as U.S. businesses seeking talent from the global marketplace. AILA Members also represent foreign students, entertainers, athletes, and asylum seekers, often on a pro bono basis. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides continuing legal education, information, professional services, and expertise through its 38 chapters and over 50 national committees.
The AILA Business Immigration Committee works to address business immigration needs and concerns through a variety of outlets. The committee works closely with national staff to provide analysis, ideas, and recommendations to members of Congress working on business immigration issues. The committee also provides recommendations to various government agencies on ways to improve business immigration matters.
The committee’s focus this year will be on guiding AILA with regard to business immigration provisions of comprehensive immigration reform, and helping draft the regulatory language for any law that passes.
Minette previously served on the national AILA Board of Governors and as Chair of AILA’s Northern California Chapter.
This new role reinforces Minette’s leadership in the immigration law sector. She currently serves on the national Board of Trustees of the American Immigration Council (AIC) in Washington D.C., whose mission is to lead and develop wide reaching and forward thinking national policy on behalf of immigrants through its litigation, education and advocacy. She has also served as a Commissioner with the State Bar of California’s Board of Legal Specialization, Immigration and Nationality Law Advisory Commission; and as a liaison to the Department of Labor, Region IX and U.S. Citizenship and Immigration Services.
Minette heads the immigration practice group at Minami Tamaki LLP, which focuses primarily on business immigration, representing startups and Fortune 500 companies in the IT, engineering, clean energy, and manufacturing industries, guiding employers through mergers/acquisitions, reduction in force, and phenomenal growth.
Minette has been named a Northern California Super Lawyer by Law & Politics Magazine for ten consecutive years, was selected as one of the Top 50 Female Northern California Super Lawyers, and has been awarded an AV rating by the Martindale-Hubbell Law Directory, the highest rating for competence and ethics issued by that publication, reserved for attorneys designated as outstanding in their field.
Partner Don Tamaki and Associate Phil Zackler of Minami Tamaki LLP’s Corporate & Nonprofit Counseling Group recently assisted AnonyMouse with its web privacy and user policies.
AnonyMouse is a new website that seeks to revolutionize the way people seek anonymous help with an initial focus on the LGBT community and aspirations to expand to other demographics to assist in other causes.
Aaron Moy, one of the co-founders of AnonyMouse, approached Don for assistance. “I’ve known Don for many years through our church,” said Aaron. “I shared with him what I was working on and asked him if he could help.”
Aaron and his team were launching AnonyMouse on a shoestring budget, but did not want to cut corners on critical website policies related to user and privacy agreements.
Don, together with Associate Phil Zackler and legal assistant Atticus Lee, set out to help Aaron with this innovative site.
“Don and his team provided three essential things for us. The first was the user agreement for the mentors, to define and document their roles in the service. The second was the agreement for users and the terms of service. The last item was the privacy policy, which describes the site’s use of information, our intentions, security, and other important legal terms.”
“It was great working with Don, Phil, and Atticus. We couldn’t have launched the site without their help. We’ve been working on AnonyMouse for more than two years and we absolutely needed the site’s legal policies in place, or our launch wouldn’t have happened.”
Clients of Minami Tamaki count on Don, Phil, and Minami Tamaki’s Corporate & Nonprofit Counseling practice group to provide practical, effective counseling on the issues they face every day. From start-ups in the early stages of development to non-profit organizations with hundreds of millions of dollars under endowment, we have the experience counseling management on a wide array of subject matters.
Minami Tamaki LLP Partner Minette A. Kwok recently engaged in national immigration policy in Washington, D.C., in her roles as a member of the national Board of Trustees of the American Immigration Council, and as a member and former national board member of the American Immigration Lawyers Association (AILA).
The American Immigration Council plays a leading role in the national debate over immigration reform. Minette joined the AIC national board in June 2012. The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Minette was in D.C. in early April as part of an effort to put pressure on Congress to take a forward thinking stand on comprehensive immigration reform. She joined a 400-person AILA delegation to meet with and educate Members of Congress on AILA’s positions related to immigration reform.
At an AIC reception, Minette had the chance to meet former Secretary of State Colin Powell, who was being honored at the event.
“Sec. Powell spoke about his history growing up in Harlem as the son of Jamaican immigrants, bring denied entry to West Point because he was black, but later becoming the Chairman of the Joint Chiefs of Staff and then Secretary of State,” said Minette. “He touted his current work in venture capital in Silicon Valley, and highlighted Bloom Energy, a company founded by an immigrant and one that he is very proud of.” [Bloom Energy is a client of Minami Tamaki’s Immigration Practice Group.]
At a meeting of the AIC board of trustees, Minette and the other trustees heard from experts about the history surrounding the current immigration reform debate, on the the role of the Latino community, and some prognostications on what is to come. The AIC national board also hammered out its priorities for immigration reform.
“It was both illuminating and impressive to see the respect and recognition that AIC has developed on the Hill,’ said Minette. “I’m proud to be serving on the national board of an organization with a strong national voice on immigration issues.”
As of this writing, the “Border Security, Economic Opportunity and Immigration Modernization Act” is pending a vote by the full Senate. If it passes both houses of Congress, it would be the federal government’s first major change in immigration laws since 1986.
In the April 2013 issue of Plaintiff Magazine, Seth I. Rosenberg of our Personal Injury Group shares how his love of quotes can be an advantage in practicing law.
Plaintiff, an independently-owned magazine, bridges the gap between small association magazines and newsletters that reach only a limited membership and the big legal magazines that are sent to law firms of every size and specialty.
LexisNexis Martindale-Hubbell has selected Minami Tamaki LLP as one of California’s Top Ranked Law Firms. Only 222 law firms in California – out of nearly 43,000 considered – received this recognition. Only 32 firms in San Francisco made the list.
Our firm achieved this recognition by having at least a third of our practicing attorneys achieve the AV Preeminent rating, the the highest rating in legal ability and ethical standards. The AV Preeminent is a significant rating accomplishment, a testament to the fact that a lawyer’s peers rank her or him at the highest level of professional excellence.
California’s Top Ranked Law Firms will be published as a standalone magazine and distributed statewide with The Wall Street Journal and The Recorder, as well as The American Lawyer, Corporate Counsel, and The National Law Journal, on May 31, 2013. The publication will also be featured on law.com throughout the year.
LexisNexis Martindale-Hubbell is an authoritative resource for information on the worldwide legal profession. With a history spanning more than 140 years, the Martindale-Hubbell Legal Network is powered by a database of over one million lawyers and law firms in over 160 countries. The network is used to find local attorneys, confirm their credentials and select firms that provide services for their personal and professional legal needs.
The National Asian Pacific American Bar Association (NAPABA) honored Minami Tamaki with its inaugural APA-Owned Law Firm of the Year Award in Nov. 2012.
NAPABA established the APA-Owned Law Firm of the Year Award to recognize NAPABA’s law firms—solo, small, and large—that have achieved prominence and distinction, and have demonstrated a strong commitment to the Asian Pacific American community.
The Award celebrates law practices that embrace the APA community while maintaining the highest ethical and legal standards in our profession. The Award also recognizes firms that have advanced the goals and ideals of NAPABA and APA legal advocacy groups.
“What You Should Know About The Private Attorney General Act” by Minami Tamaki LLP attorney Kevin R. Allen was originally posted on the Contra Costa Lawyer website. The text of the article is cross-posted here with footnote references, but please visit the original post for the citations.
Although most California employment attorneys are no doubt familiar with the Private Attorney General Act of 2004 (PAGA), they may not fully understand what the PAGA is or grasp how it works. This article summarizes what every California employment attorney should know about PAGA, regardless of whether they are actively litigating such claims.
About PAGA
PAGA provides employees with a private right of action against an employer in order to collect penalties on behalf of the state’s Labor and Workforce Development Agency (LWDA). PAGA requires that 75 percent of any penalties collected be paid to the LWDA, with the remaining 25 percent distributed to the aggrieved employees.[1] It provides for attorney’s fees to the employee who successfully brings the suit.[2] It is subject to a one-year statute of limitations.[3]
PAGA groups violations into three categories and provides for slightly different procedures for each category.
Category 1: Violations of Labor Code Provisions Specifically Listed in Labor Code section 2699.5
Most PAGA claims fall within this first category. It encompasses violations of those Labor Code sections identified in section 2699.5. There are over a hundred different Labor Code sections listed. They include section 203 on waiting time penalties, section 226.7 on meal and rest break premiums, as well as section 1198, which makes it illegal to employ an employee “under conditions prohibited by the wage order.” The inclusion of section 1198 greatly expands the scope of the PAGA since it allows claims to be predicated on sections of the wage order which may not otherwise provide for a private right of action. These “new” wage and hour claims have been in the news recently. They include failure to provide employees with suitable seating (Section 14 of most wage orders) or to maintain comfortable temperatures at work (section 15 of most wage orders).[4]
Before commencing a category 1 PAGA claim, an employee must satisfy certain notice requirements.[5] He or she is required to give written notice, by certified mail, to both the LWDA and the employer describing the “specific provisions … alleged to have been violated, including the facts and theories to support the alleged violation.”[6] An employee can only proceed with the PAGA claim if LWDA either declines to investigate or neglects to respond to the notice within 33 days.[7]
PAGA was enacted because the LWDA did not have adequate resources to police employers’ compliance with the Labor Code. It is, therefore, not surprising that the LWDA rarely initiates an investigation as a result of a PAGA notice. However, this does not mean that the PAGA notice requirements should be taken lightly. Since the notice is a jurisdictional prerequisite, a PAGA claim can be dismissed outright if the notice is deficient.[8] One court recently dismissed PAGA claims due to an insufficient notice even though the employer raised the sufficiency of the notice for the first time at the final pretrial conference.[9] For these reasons, it is very important to determine whether notice was served properly and contained sufficiently specific facts about the alleged violations.[10]
Category 2: Health and Safety Violations (Labor Code 6300 et seq.)
The second category of PAGA claims is for health and safety violations predicated on any section of Labor Code sections 6300 et seq. (other than sections 6310, 6311, and 6399.7 which are specifically listed in Labor Code section 2699.5. and, therefore, fall under category 1).[11]
In addition to sending notice to LWDA, a plaintiff bringing a health and safety-based PAGA claim must also send notice to the Division of Occupational Safety and Health, which is then required to investigate the claim.[12] If the Division issues a citation, the employee is precluded from commencing an action under the PAGA. In the alternative, if the Division does not do so, the aggrieved employee may proceed to Superior Court.
Category 3: All Other Labor Code Violations
The third PAGA category applies to violations of the Labor Code other than those covered by the first two categories.[13] The notice requirement is the same as category 1 claims. However, unlike category 1 claims, an employer is provided with a safe harbor and can avoid a category 3 PAGA claim if it cures the violation within 33 days of the notice.[14] An employer who wishes to take advantage of this cure provision sends notice to LWDA and the employee describing the actions taken to cure the violation.[15] The employee can then submit arguments to LWDA as to why those actions did not actually cure the violation.[16] An employee may appeal the agency’s determination that a violation has been cured by filing an action with the Superior Court.[17]
Class Certification
For the first five years under PAGA, it was an open question as to whether a plaintiff had to have a class certified in order to pursue PAGA claims on behalf of other aggrieved employees. However, in 2009, the California Supreme Court held that a plaintiff is not required to have a class certified in order to pursue PAGA claims on behalf of aggrieved third parties. The court in Arias v. Superior Court in 2009 decided that class certification “requirements need not be met when an employee’s representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004.”[18]
While this clarified the issue in state court, there remains a split in California’s federal District Courts. Some district courts have adopted Arias and allow PAGA claims to be pursued without requiring Rule 23 class certification.[19]
Other district courts view the PAGA as a state procedural statute. Since district courts must follow federal civil procedure, some district courts have held that a plaintiff must first obtain Rule 23 class certification before having standing to pursue PAGA claims on behalf of absentee third parties.[20] Regardless of whether a particular court requires Rule 23 certification, a PAGA plaintiff needs to be cognizant of additional difficulties they may face establishing liability and proving damages at trial. The California Supreme Court is currently considering whether using representative testimony and sampling for purposes of proving group liability deprives an employer of its constitutional due process rights.[21] If the court limits or precludes representative testimony and sampling as methods of proof in group actions, this will greatly impact how PAGA claims are tried.
Penalties
PAGA penalties are calculated differently depending on the predicate violation. If the Labor Code provision underlying the PAGA claim already provides for a civil penalty, then an employee can seek to collect that penalty on behalf of other aggrieved employees.[22] Where the underlying Labor Code section does not already provide a civil penalty, the PAGA penalty is equal to $100 per employee per pay period for the initial violation and $200 for each employee per pay period for each subsequent violation.[23]
One interesting aspect of the PAGA is that it allows a trial court to reduce the civil penalty amount if, “based on the facts and circumstances of a particular case, to do otherwise would result in an award that is unjust, arbitrary or oppressive, or confiscatory.”[24] Although there is currently scant case law defining what is unjust or oppressive in regards to PAGA penalties, this will likely change as more PAGA cases are litigated to judgment and reviewed on appeal.
Settlements
A court must review and approve any proposed settlement that purports to release PAGA claims.[25] Often times, PAGA claims are released as part of a wider class action settlement that includes causes of action for other Labor Code violations. In such cases, a portion of the total settlement amount is typically allocated towards the PAGA claims. In years past, perhaps due to the lack of precedent, it was not unusual to see courts approve class action settlements that allocated nominal amounts to PAGA claims. However, recently courts are scrutinizing the amount allocated to PAGA claims more closely to ensure that the allocation is reasonable in light of the maximum penalties that could have been collected had the case been successfully tried to verdict.
Conclusion
As PAGA claims are a relatively new addition to the Labor Code, the case law is still developing. In the next few years, we can expect to receive additional direction from the appellate courts, especially with regard to how a plaintiff can prove group liability and damages. For these reasons, attorneys representing employees and employers alike are well advised to carefully track developments in the case law or to seek counsel from lawyers who routinely handle such claims.
Kevin R. Allen lives in Lafayette and is a trial attorney at San Francisco-based Minami Tamaki, LLP. He is a member of the firm’s Consumer and Employee Rights Group and his practice focuses primarily on class actions involving wage and hour and consumer protection laws. Minami Tamaki, LLP Paralegal George Rafal contributed to this article.
The United States District Court for the Southern District of California has granted final approval to a class action settlement reached by the parties in Ollendorff v. Dalton Trucking, Inc., Case No. 2:11-cv-05189-DMG-SP.
The plaintiffs and class members were represented by class counsel Jack W. Lee and Kevin R. Allen of Minami Tamaki LLP.
The settlement class consists of approximately 280 truck drivers in California who plaintiffs allege were not provided with overtime compensation owed under the Fair Labor Standards Act (“FLSA”) and off-duty meal and rest breaks as required by California law. The parties’ settlement, which received final approval from the court on January 8, 2013, requires the defendants to pay $275,000 to settle all claims brought on behalf of the class.
Please contact us for more information about this case or with questions about your entitlement to overtime pay and off-duty meal and rest breaks.
The United States District Court for the Northern District of California has granted final approval to a class action settlement reached by the parties in Akaosugi v. Benihana National Corp., Case No. 11-cv-01272 (WHA). The plaintiffs and class members were represented by Kevin R. Allen, Brad Yamauchi, and Glicel Sumagaysay of Minami Tamaki LLP.
The Court previously certified two subclasses (May 2012), consisting of current and former employees of Benihana-branded teppanyaki-style restaurants in California, based on allegations that Benihana had a “use-it-or-lose-it” vacation policy which required employees to forfeit vacation without pay in violation of California wage laws. Minami Tamaki LLP was appointed to act as class counsel on behalf of those subclasses.
The settlement, which received final approval from the court on January 24, 2013, provides over $440,000 to a class of over 1,600 employees – this is nearly equal to the total amount of lost wages the class could have recovered had they prevailed at trial on their vacation pay claims.
Please contact us for more information or to speak with Minami Tamaki LLP about other employers who may have similar vacation policies.
Minami Tamaki LLP Partner Minette A. Kwok recently joined the American Immigration Lawyers Association’s (AILA) Business Immigration Committee.
