Barbara J. Miller

Miller, a Morgan Lewis partner, handles complex employment litigation for employer-side clients in the retail, technology, financial services and energy industries.

Lately, Covid-19 counseling duties have taken much of her time. "We were looking at first at trends developing in terms of potential litigation, plus questions around how to shut down and how to arrange the home work environment," she said in late June. "Now it has shifted to reopening plans and the challenges facing our retail clients."

The pivot to getting back to work can be complicated. "We've learned a ton. Retail's challenges include having your employees interacting with the public when you don't have a lot of control over public behavior. You can't screen the whole world. Some high-end retailers can do temperature checks. But given the inflow to outflow patterns at supermarkets and big box stores, that wouldn't likely be effective. Most retailers are trying hard to ensure social distancing and to see that everybody wears masks and that they do a lot of cleaning. On balance, employers really want to create a safe workplace."

In her litigation work, Miller has navigated the tension in Private Attorney General Act cases between the original plaintiffs and the lawyers who take the cases forward even when the plaintiffs lose interest. When a real estate services administrator sued her employer in a potential class action over wage claims, Miller represented the defendant, CBRE Group Inc., the largest commercial real estate services company.

The plaintiff's representative PAGA claim was stayed pending arbitration of her individual claims, which involved the right to maintain medical benefits while on leave at the employer's expense. After returning to work, the employer recovered the benefits payments from the employee's pay--but that unfairly reduced the pay to a figure below the minimum wage under California law.

"Or so their argument went," Miller said. "The arbitrator gave her a nominal award equal to the minimum wage for one pay period. The lawyers claimed that decision governed the PAGA class and was binding, and they proceeded to trial on the PAGA claim without the plaintiff, who was no longer interested in the case." Woods v. CBRE Group Inc., CGC-14-537527 (S.F. Super. Ct., filed Feb. 18, 2014).

Miller's winning argument was that under the Iskanian standard, the state, not the plaintiff, was the real party in interest in the PAGA case but had not been a party to the arbitration award, so the award had no collateral estoppel effect on the state. The court agreed and ruled in CBRE's favor in March 2020.

"It wasn't an intuitive approach, but the judge saw it our way," Miller said.