California Correctional Employees Wage and Hour Cases:
With the backing of the California Correctional Supervisors Organization (CCSO), filed and litigated two class actions (Shaw et. al. v. state of California et. al. and Kuhn et. al. v. state of California et. al.) and later worked with attorneys Gregg Adam and David Godwin and their staff at two other law firms (Messing Adam and Jasmine and Squire Patton Boggs) with their two other coordinated class actions to obtain a historic $155 million dollar settlement against the state of California for overtime pay for pre and post shift time spent by correctional Sergeants (Sgts) and Lieutenants (Lts) performing required tasks outside their paid eight-hour shifts. The litigation of these class actions took over 15 years to complete, and required going all the way to the California Supreme Court on appeal to determine legal questions.
The class actions involved complex issues stemming from the ‘contract right’ to pay for time incurred performing required, compensable work tasks – – and in turn these contractual rights flowed from provisions in the California Constitution, together with the CalHR overtime policy and the California Department of Corrections and Rehabilitation (CDCR) policies governing the work by Sgts and Lts at over 30 adult institutions throughout the state. The claims were difficult to assert and litigate since for the most part California wage law does not apply to public employees, and the lawsuits could not be based on the federal wage law (the Fair Labor Standards Act (FLSA)) due to the state having 11th Amendment Immunity- – meaning the state can’t be sued under federal law by its own employees. Further, California correctional Sgts and Lts, while hourly employees, do not have collective bargaining rights and therefore no claims existed under a collective bargaining agreement. Ultimately the California Supreme Court ruled that the state may be responsible for paying the Sgts and Lts for all ‘Duty-Integrated Walk Time’ or DIWT for required Pre and Post shift Work Activities (PPWA). With this ruling, and under a specific CDCR policy, the Sgts and Lts had to be treated as being ‘on pay’ status from the time they started their first required pre-shift duty-integrated work task until they finished their last required post-shift duty-integrated task.
So after the Supreme Court ruling, aggressive litigation, including additional written discovery, depositions, and detailed fact-gathering occurred for three more years, during which ‘example’ adult institutions were micro-analyzed to determine how, when and where the Sgts and Lts at all the various assigned ‘posts’ at the institutions performed required work tasks either before and/or after the designated start and end times of their paid 8.0 hour shifts. Such tasks typically included picking up and dropping off keys and tools (handcuffs, batons, pepper spray, etc.), signing in and out on time sheets, engaging in debriefing with Sgts and Lts ending the prior shift, and managing staff accountability for the upcoming shift.
After detailed summaries of the facts gathered, along with overtime pay and interest damages estimates done by an expert were provided to the attorneys for the state, the two sides reached the tentative $155 million settlement after a third day of mediation in July of 2022. Then, even the detailed settlement process for the four coordinated class actions took almost two years, since both preliminary and final approval of the settlement had to be obtained from the Court, all class members had to be notified of the settlement, and over 10,000 class members had to be provided the checks for their shares of the settlement – – including the beneficiaries of deceased class members.
After 15 years the litigation of these class actions successfully provided covered Sgts and Lts significant back damages. Further, while not part of the settlement agreement approved by the Court, the litigation ultimately led the state to start paying the correctional Sgts and Lts an extra 30 minutes of pay per day to cover the time spent on their required pre and post shift work tasks, making the historic settlement even more valuable.