Ninth Circuit rejects frivolous wage and hour appeals of Nordstrom and Con-Way

Posted on: August 1st, 2013 by Steve Larson
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Blog Wage and HourThe Ninth Circuit rejected “frivolous” bids Thursday from Nordstrom, Inc. and Con-Way Freight, Inc. to overturn district court denials of summary judgment to the companies in wage cases, and ordered Littler Mendelson attorneys to explain why they shouldn’t face monetary sanctions.  

The trio of orders, rejecting two petitions for mandamus on behalf of retailer Nordstrom and one from transportation and logistics company Con-Way, called out a total of six attorneys for labor and employment powerhouse Littler Mendelson and gave them 21 days to show cause as to why they should not be individually slapped with sanctions for lodging frivolous petitions.

“Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus,” the orders said. “Indeed, we find the petition to be frivolous and wholly without merit.”

All three of the petitions were filed at the Ninth Circuit in April. Both of the Nordstrom petitions challenged the same December 2012 lower court ruling and arose from consolidated putative class action minimum wage litigation. 

Nordstrom splits its workdays for “draw commission” employees, like the plaintiffs, into “nonsell” time during which they get an hourly rate above minimum wage, as well as “selling time” where the company pays commissions subject to a guaranteed draw that’s also above minimum wage, the petitions said.   

The plaintiffs claimed it was unlawful for Nordstrom to pay commissions for 40-minute periods before and after stores opened and closed.

The company moved for summary judgment, arguing that it paid the plaintiffs more than the required minimum wage for all their selling hours and that workers can and did make sales during the pre-opening and post-closing periods.

The court denied Nordstrom summary judgment, relying on a California appeals court ruling from 2005 called Armenta v. Osmose Inc. and holding that Nordstrom could only pay commissions for time during which the plaintiffs made threshold number of sales, the petition said.

Con-Way’s April 2 petition stemmed from a class action brought by former driver Jorge Quezada alleging that Con-Way’s piece-rate compensation formula doesn’t comply with California minimum wage law. Piece-rate compensation means paying workers per task.