A defendant that successfully compels arbitration of a FEHA claim may not recover its attorney’s fees unless the plaintiff’s opposition was frivolous, unreasonable, or groundless.
October 18, 2021, Second District Court of Appeal, Michael Patterson v. Superior Court: The issue before the appellate court was whether an employer’s arbitration agreement can authorize the recovery of attorney’s fees for a successful motion to compel arbitration of a FEHA case even if the employee’s opposition to arbitration was not frivolous, unreasonable, or groundless. The Second District concluded no because a fee-shifting clause directed to a motion to compel arbitration risks chilling an employee’s access to court in a FEHA case.
Regular rate of pay calculation for commission worker did not apply because employer failed to provide records regarding the commission payments and actual hours worked.
October 14, 2021, Second District Court of Appeal, Byron Jerry Morales v. Factor Surfaces LLC: Morales sued his former employer and its managing agent for several wage and hour violations and wrongful termination. The trial court found in Morales’s favor and awarded $42,792 in unpaid overtime wages. On appeal, the Second District affirmed the amount of the award after concluding that the calculation of Morales’s regular rate of pay was correct. The trial court divided Morales’s weekly salary by the number of overtime hours worked. Although Morales received commissions, Factor Surfaces failed to provide records showing the portion of each weekly paycheck attributable to commissions and the actual number of hours worked by Morales. As a result the calculation for commission workers (divide total commission payments for the week by the actual number of hours worked) was not possible.