Class Certified for Loggers Who Were Paid on a Daily Basis Instead of Hourly

Down in Alabama, the law firm Hardin & Hughes LLP is cleaning up the logging industry’s illegal pay practices. Apparently, it is a common practice to pay loggers by the day, instead of by the hour, as required under the law. Hardin & Hughes LLP is on its way to changing all that. Another lesson in valuing employees' time. After all, that's the point to overtime laws.

Just recently, the firm won a class certification motion against Johnny Kynard Logging Inc., where the class plaintiff says he regularly worked from 5 a.m. to 6 p.m. without getting paid overtime. (Maudlin v. Johnny Kynard Logging, Inc., case no.: 08-307 (S.D. Ala.). I admire the firm for taking on the very powerful logging industry. Hopefully, all loggers will get their time properly honored.

That case was brought under the federal Fair Labor Standards Act, because Alabama does not have its own wage and hour law. California does and it's much better for employees than its federal counterpart.

California's respect for workers time is sprinkled throughout the California Labor Code. As an example, here's section 552, “No employer of labor shall cause his employees to work more than six days in seven.” The following provision, at section 553 states, “Any person who violates this chapter is guilty of a misdemeanor.” California law criminalizes working employees too hard! Not so under the federal law.

At least once a year, I read the Labor Code from beginning to end. As an East Coast native, and someone who organized unions for seven years on the East Coast, I find California labor and employment philosophy a fascinating reflection of West Coast values. I believe one of the reasons California protects workers time is because it is so beautiful here and collectively we all want to get out and enjoy the land. Also, rested, well-rounded workers, are more productive. I believe California workers, in part, are so productive because of our commitment to honoring free time.

I had a case a couple years ago that raised this very issue. My client was fired for refusing to work these exceptionally long hours. He had a clear right under the Labor Code to do so. They even told him the reason they were firing him was because he refused to work unlawfully long shifts. So, we filed suit. It seemed like a straight forward case. Within a week, I received a letter from opposing counsel, letting me know that because the employer was physically located in the Presidio, a federal enclave inside of San Francisco, it did not have to comply with the state's Labor Code. Furthermore she stated, the applicable federal law does not prevent employers from requiring unlimited consecutive hours of work. I was shocked.

I thought this was really creative lawyering, but I checked it out. When state land is ceded to the federal government, the State law at the time the land is ceded governs. Of course, the Presidio has been a federal enclave for decades. I suppose I can see how this would make sense for private employers on military bases, but allowing this rule on the Presidio. a unique Trust, made no sense to me. Even more galling, this employer has nothing to do with the government. They do special effects for movies.

So here was a situation where an employer reaps the benefits of the highly skilled San Francisco workforce, but does not abide by the very California law that helped create the highly skilled workforce. It felt like they were cheating. I thought, "Man, these Presidio employers are really sneaky. They need some attention for what they are doing." So, I contacted the San Francisco Bay Guardian which ran a story about it. I also contacted three members of the Board of Supervisors, none of whom were even aware that Presidio employers were intentionally skirting the California Labor Code.

We settled the case. It was clear that the employer did not want to litigate their position. I told the attorney that I was going to amend the complaint and add retaliation for federal health and safety violations. I wanted them to take the bait. Instead, they paid the entire demand and then some. I think they didn’t want exposure, but I would love to do more of these cases. So, if you are an employee of a private company in the Presidio, maybe we should talk. Call me.