Right to Administrative (Berman) Hearing before the Labor Commissioner under Attack in Light of Concepcion: Employee's Right to Jury Trial in the Cross Hairs of the US Supreme Court

November 20, 2011


The conservative US Supreme Court's activist agenda is in full throttle in the mandatory arbitration arena. In the AT&T v. Concepcion case (see prior blog of July 6, 2011), the US Supreme Court planted its thumb squarely on the employer's side of the scales of justice by overturning past law and holding that there is no per se invalidation of class action arbitration provisions (Concepcion is a consumer class action case). Now the US Supreme Court apparently wishes to tip the scales at the opposite end of the spectrum: by applying this class action holding to individual Berman hearings brought by California workers for the payment of wages. The US Supreme Court has reached out and vacated (as well as remanded) the California Supreme Court's holding in Sonic-Calabasas v. Moreno (2011) 51 Cal.4th 659. Why can't the US Supreme Court stay out of our backyard?
The holding which the US Supreme Court vacated was quite modest. It simply upheld an employee's right to a "Berman hearing" before the California Labor Commissioner, pursuant to California Labor Code, section 98, for the payment of unpaid wages. Berman hearings are a streamlined administrative procedure for employees to recover unpaid wages--including overtime, meal and rest period pay, and waiting time penalties--without having to go to court, allowing many employees who cannot afford a lawyer the ability to stand up for their workplace rights. The right to a Berman hearing protected by the California Supreme Court in Sonic-Calabasas was limited to the first instance only; the California Supreme Court permitted the employer to enforce a mandatory arbitration of the employee's next step appeal, which would have otherwise taken place in the superior court.
The US Supreme Court vacated this opinion in light of Concepcion. See, Sonic-Calabasas, Inc. v Moreno (October 31, 2011) No. 10-1450. Does the US Supreme Court really believe that this minor right to an administrative hearing in the first instance should be wiped out? Does it really believe that an employer has a right to hijack a benign administrative process to entitle an employee to obtain his or her basic wages?
The US Supreme Court ought to keep its tentacles out of California' s modest procedural apparatus for an employee to obtain his or her wages. It is downright hypocritical for the Court to pay lip service to states' rights when it serves conservative interests, and ignore states' rights when it might be used to protect an employee.
We can only hope that the California Supreme Court, on remand, stands its ground. This may be high hope given the recent argument before the California Supreme Court in Brinker Restaurant v. Superior Court, 85 Cal.Rptr.3d 688 (Oct. 22, 2008) (petition for review granted; case argued November 8, 2011), which addressed meal and rest break issues and in which all the justices uniformly appeared not to understand the fundamental role of the law in providing employees with basic rights, such as meal and rest periods.

Jody LeWitter

November 20, 2011