May 23, 2017

McDonald’s intentionally processed overnight shifts at its company-run stores so as to stiff thousands of workers on overtime, counsel for several former employees told a California judge during opening statements Tuesday in a damages trial following the judge’s ruling that McDonald’s violated state labor law.

Los Angeles Superior Court Judge Ann Jones ruled last month that the company's practice of assigning all hours in an overnight shift to the day in which the shift started meant workers who had an overnight shift followed by a daytime shift often worked over eight hours in a 24-hour period but received no overtime pay.

Before the certified class of McDonald’s workers heads to a potential jury trial to determine their damages for unpaid overtime under California labor law, however, the parties have come before Judge Jones for a bench trial to settle several preliminary issues. These issues include whether McDonald’s is liable for statutory penalties under California’s Private Attorney General Act, whether it can assert a “legal good faith” affirmative defense to avoid paying labor code penalties, and what 24-hour “workday” will be applied to calculate the overtime owed by the company.

Joseph M. Sellers of Cohen Milstein Sellers & Toll PLLC, representing named plaintiffs Maria Sanchez, David Cruz, Ines Mendez Merino and Jonathan Valentin and the certified class, told Judge Jones that the evidence is clear that McDonald’s owes penalties under PAGA because it willfully and intentionally set up its payroll system as a way to short its workers on overtime. Sellers pointed to the decades-long history of the shift-assigning practice, and the wage orders and court cases that should have made McDonald’s realize its practice was unlawful along the way.

“I couldn’t be clearer in our view that the company repeatedly had opportunities to change this policy when questions could have been raised about its lawfulness and it didn’t do so,” he said.

Sellers also suggested that McDonald’s “workday” be calculated as starting at 8 to 10 p.m., as that is when the majority of the class members actually started their respective shifts. He added that the company's assertion of a workday starting at 4 a.m. is a “post hoc position” meant simply to minimize the amount of overtime it ends up owing.

The workers are represented by Joseph M. Sellers and Miriam Nemeth of Cohen Milstein Sellers & Toll PLLC; Matthew J. Matern and Launa Adolph of the Matern Law Group; and Michael Rubin, Barbara J. Chisholm, Kristin Garcia and Matthew J. Murray of Altshuler Berzon LLP.

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