Thomas R. Kaufman

Kaufman’s clients include Kaiser Foundation Health Plan Inc., Bank of America Corp., Wells Fargo & Co., Cox Enterprises Inc., AT&T and Charter Communications Inc.

In one major wage case last year, the plaintiff filed a potential class action against Kaiser over off-the-clock issues on behalf of a class of home health nurses and other support employees who worked in patients’ homes. The plaintiffs contended that Kaiser knew or should have known about widespread work done after hours to complete paperwork that could not be done during the regular workday. Kaufman argued that California’s statutory overtime requirements do not apply when an employee is covered by a valid collective bargaining agreement. Overtime claims should be addressed in a union grievance, he said.

“Your redress is to sue under your collective bargaining agreement,” Kaufman said. “No one’s suggesting that [the plaintiff] should have to work without pay or that he’s not entitled to redress.” Los Angeles County Superior Court Judge John Shepard Wiley ruled against Kaufman’s summary judgment motion, but Kaufman’s further aggressive defense persuaded Wiley to deny class certification in its entirety. Gonzalez v. Kaiser Foundation Hospitals, BC492725 (L.A. Super. Ct., filed Sept. 28, 2012).

Earlier, Kaufman obtained for the first time a useful published appellate decision in another large off-the-clock potential class action filed against Kaiser. State appellate justices ruled that an employer does not have to pay for time an employee failed to record in the company’s timekeeping system. Wrote Associate Justice Stuart R. Pollak of San Francisco, following Kaufman’s arguments, none of the plaintiff’s evidence “is sufficient to support a finding that Kaiser was aware of his unreported overtime hours.” Jong v. Kaiser Foundation Hospitals, 226 Cal. App. 4th 391 (Cal. App. 1st Dist., filed Nov. 6, 2012).

“We developed good deposition testimony that the employee had taken steps to conceal that he had worked before and after his shift,” Kaufman said. “This was the first state case to follow the federal rules on this issue.”

In the disputed arena of removing class actions filed in state court to federal venues, Kaufman won a significant appellate victory that made it easier for defendants to attain the friendlier federal forum. The dispute was over rest and meal breaks and overtime pay at an automobile auction house. On a second trip the 9th Circuit U.S. Court of Appeals, he prevailed when a panel ruled that defendants have a right to come up with a reasonable theory of alleged violations that could meet the $5 million federal court threshold. The decision rejected a California anti-removal standard. Ibarra v. Manheim Investments Inc., 775 F.3rd 1193 (9th Cir., Jan. 8, 2015).

That win led to Kaufman’s successful motion to deny class certification in June 2016. “It clarifies an important principle,” Kaufman said. “I’ve been using this decision ever since.”

— John Roemer