Friday, March 26, 2010

Pearl Law Firm Wins Summary Adjudication of Independent Contractor, Exemption Defenses in Nursing Case

On March 25, 2010, Los Angeles Superior Court judge Conrad R. Aragon granted summary adjudication in favor of two licensed vocational nurses (LVNs) represented by The Pearl Law Firm. The Court found that the undisputed evidence showed that the LVNs were neither independent contractors nor exempt employees.

The action alleges that the employer, a home health agency, failed to pay the LVNs overtime and missed meal and rest period compensation, failed to provide them with timely and accurate wage and hour statements, and failed to pay them all earned wages on separation. The defendant asserted in its answer that the LVNs were either independent contractors or exempt employees.

The Court first held that the LVNs were not independent contractors as a matter of law. The Court held that the employer had not only the right to control the LVN's work, but also the duty to do so under California's home health agency regulations. Further, the Court found that the employer exercised control over the LVNs "on a pervasive, continual basis throughout their employment." As such, the LVNs were employees, not independent contractors.

The Court also held that the exemption defense did not apply for several reasons. First, the employer paid the LVNs on an hourly basis, not a salary. Second, the Court held that the LVNs were not engaged in a "learned or artistic profession" within the meaning of the exemption. Instead, the Court found that the LVNs were "primarily engaged" in work that "either required no particular skill and knowledge, such as bathing and changing diapers, or that required only the limited education and clinical training of an LVN [high school diploma, plus one year of combined classroom instruction and clinical rotation]." Third, the LVNs did not "customarily and regularly exercise discretion and independent judgment" as defined in the regulations. Instead, they "applied [their] knowledge in following prescribed procedures." As such, they could not be exempt employees.

The Court's ruling on summary adjudication establishes liability against the employer. The case will now go to trial on damages.

Thursday, March 18, 2010

Steven G. Pearl to Speak at Advanced Wage and Hour Seminar

Steven G. Pearl will speak at the California Employment Lawyers Association (CELA) Sixth Annual Advanced Wage and Hour Seminar on Friday, April 30, 2010, in Oakland, at the Oakland Marriott City Center. Mr. Pearl will speak on current developments, with an emphasis on pending legislation and cases currently pending before the California Supreme Court and the Ninth Circuit Court of Appeals. Mr. Pearl will speak with Kevin Kish, Director of the Employment Rights Project at Bet Tzedek Legal Services, and Mariko Yoshihara, Political Director of CELA.

Thursday, March 4, 2010

Steven G. Pearl Offers Services as Mediator

Steven G. Pearl announced today that he will offer his services as mediator. In more than 17 years of legal practice, Mr. Pearl has litigated and resolved thousands of lawsuits involving wage and hour and employment law, class actions, unfair competition, consumer protection, personal injury, professional malpractice, business litigation, and real estate litigation.

Mr. Pearl is a recognized authority on wage and hour law and a co-author of
California Wage and Hour Law and Litigation, published by Continuing Education of the Bar (CEB). He also authors the California Wage and Hour Law Blog and the Mediation and Negotiation Blog.

To retain Mr. Pearl's services as mediator, please contact The Pearl Law Firm at (818) 995-8300.