Monique Olivier

A certified appellate specialist, Olivier serves as lawyer representative at the Northern District and a mediator and neutral evaluator for the district's alternative dispute resolution panel.

And she litigates. For salespeople at internet service provider Cogent Communications Inc., Olivier has obtained class certification on claims that the company commits overtime violations under California law and the Fair Labor Standards Act. "The company has a big sales force in California. It says its pay is based on the outside sales exemption, but we contend the salespeople do not work outside and that is an improper use of the exemption," Olivier said. Ambrosio v. Cogent Communications Inc., 14-cv-01282 (N.D. Cal., filed May 12, 2014)

The case took an interesting twist after U.S. District Judge Richard G. Seeborg of San Francisco certified the class in January. Cogent moved to cut the class size in half by moving to compel arbitration in the case of class members who had signed arbitration agreements. "The company started requiring signature of arbitration clauses after a nationwide class action came along several years ago," Olivier said. "That class was decertified, so we filed the California action. The company's move brings up the question of whether a defendant can make such a move post-certification."

One of Olivier's arguments is based on the fact that the defense never moved to compel arbitration until it lost on the certification issue. "We claim they waived the right to arbitrate. They litigated the case. If you take advantage of the court process, including discovery and everything else, you can't come in at the last moment and switch to arbitration. They've been lying in wait." The question is pending before Seeborg, who has requested supplemental briefing on a related question: whether the National Labor Relations Act precludes arbitration agreements in such cases.

"The 5th and 7th circuits are split on that, and it is currently pending in a different case before the 9th Circuit," Olivier said. "We expect an answer shortly."

Meanwhile, she was planning in early July to file a motion for class certification on behalf of Virgin America flight attendants on claims they are paid only for their hours spent flying and not for their time on the ground. "We have multiple minimum wage and overtime claims under California wage laws," she said. Bernstein v. Virgin America Inc., 15-cv-02277 (N.D. Cal., filed March 18, 2015)

— John Roemer