Thursday, January 20, 2005
S.C. to Decide Whether Model Is ‘Discharged’ After Assignment
Class-Action Ruling Could Result in Large Penalties for Delays in Payment
By KENNETH OFGANG, Staff Writer
The state Supreme Court agreed yesterday to decide whether models who receive flat fees for one-day assignments are “discharged” at the end of the day, thus triggering an obligation on the part of their employer to pay them immediately or face penalties.
At its weekly conference in San Francisco, the court voted unanimously to review the Oct. 19 decision of Div. Five of this district’s Court of Appeal in Smith v. Superior Court (2004) 123 Cal.App.4th 128.
The plaintiff, Amanza Smith, was working as a salesperson in a Beverly Hills boutique and seeking acting and modeling assignments when she was approached four years ago about serving as a hair model at a show featuring L’Oreal products. She accepted the assignment for $500 for one day of work, receiving her pay two months later in the form of a check sent from the company’s main accounting office in New York.
She sued in Los Angeles Superior Court, seeking class action status for her claims that the failure to pay promptly constituted conversion, fraud, unfair business practices, violation of Labor Code sections requiring immediate payment upon discharge, breach of contract, and negligent misrepresentation.
The Labor Code cause of action seeks 30 days’ wages, or $15,000, per class member, under Labor Code Sec. 203, which provides that if an employee is not paid immediately upon discharge, he or she is entitled to a penalty equal to the amount of his or her wages for the number of days that he or she is required to wait for the money, up to 30 days.
Los Angeles Superior Court Judge Frances Rothschild granted summary adjudication on the Labor Code claims, concluding that Smith was not “discharged,” but rather “completed her employment by its terms.”
Justice Margaret Grignon—who has since retired—agreed with the trial judge in her opinion for Div. Five.
The jurist relied on standard dictionaries defining “discharge” to mean “to dismiss from employment” or to “to terminate from employment,” thus implying “an affirmative action by an employer” rather than “a passive expiration of a set term or completion of a set task.”
Other states with similar statutes have specifically held that an employee hired for a fixed term is not “discharged” at the end of the term within the meaning of those states’ labor laws, she noted.
The plaintiff is represented by Kevin Francis Ruf of Century City’s Glancy Binkow & Goldberg LLP, L’Oreal by the San Francisco firm of Morgenstein & Jubilerer. The state labor commissioner urged depublication in the event review was not granted, as did Bet Tzedek Legal Services.
Copyright 2005, Metropolitan News Company