Neal J. Fialkow

Class actions were the vehicle that led Pasadena employee-side attorney Fialkow to employment cases.

“I liked the class action device and I was looking for things the class action device worked best with,” said Fialkow, who in his 40-year career has practiced criminal and personal cases. “It seemed to work very well with wage and hour cases. I didn’t get into employment because I liked employment. I got it into it because I was really intrigued by the class action device.”

In 2013, Fialkow litigated a piece-rate class action on behalf of car technicians against Downtown LA Mercedes-Benz. Workers were required to stay on-site and do non-repair tasks without pay, even when they weren’t repairing cars. Legally, the piece rate cannot go below the minimum wage, Fialkow said.

The 2nd District Court of Appeal, in upholding the trial court’s decision, ruled that workers who worked at a per case basis fixing cars were entitled to minimum wage when waiting for other cars to come in for repair. Gonzalez v. Downtown LA Motors LLP, 13 S.O.S. 1662 (Cal. App. 2nd Dist. 2013).

“That defined piece rate and kind of changed everything in California,” Fialkow said.

Now Fialkow is handling Private Attorneys General Act cases, where plaintiffs make civil claims on behalf of the state and other employees. Earlier this year, the 4th District Court of Appeal ruled PAGA-only lawsuits can go straight to a judge instead of an arbitrator first assessing the case. Plaintiff Martina Hernandez alleged that discount department chain Ross Stores Inc. broke wage and overtime laws even though Hernandez signed a contract with Ross to individually arbitrate any employment disputes. Hernandez v. Ross Stores Inc., E064026 (Cal. App. 4th Dist. Jan. 3, 2017).

Court observers predicted the decision would result in more PAGA claims coming forward.

“We’re learning a lot about PAGA cases. They’re not as complicated as we’re making them out to be,” Fialkow said.

The problem is that the action is relatively new with little background, he said. “I do believe because the PAGA cases stand on their own, that there will be more of them. There will be a lot of questions. At the end of the day it’s going to be, who did what to who, and who’s right and who is wrong,” Fialkow said.

Fialkow has a few PAGA cases pending and he hopes to bring his first to trial.

“Courts really are looking for solutions. They tend to follow the solution if it helps everybody make sense [of it],” Fialkow said. “At the end of the day, at least in this office, we look at practical solutions. We look at things that are novel.”

— Justin Kloczko