Furry v. East Bay Pub’g, LLC, 30 Cal. App. 5th 1072 (2019)

Terry Furry worked as a sales and marketing director for the East Bay Express (a weekly newspaper based in Oakland) and alleged that East Bay failed to pay minimum and overtime wages, meal and rest breaks, provide properly itemized wage statements, etc. Following a bench trial, the court determined that East Bay failed to meet its burden of proving that Furry was exempt from overtime and related wage and hour requirements. However, because Furry “failed to present sufficient evidence regarding the amount and extent of his [overtime] work” and because his testimony was “uncertain, speculative, vague and unclear,” the court declined to award recovery for uncompensated overtime hours because “even a rough approximation of said hours would be pure guess work and unreasonable speculation on the court’s part.” As for meal and rest breaks, the trial court determined that East Bay provided Furry with uninterrupted meal and rest breaks.

The Court of Appeal reversed the judgment as to the overtime claims because East Bay failed to keep proper records and so “the imprecise nature of Furry’s testimony was not a bar to relief.” The Court affirmed the judgment as to the meal and rest breaks because Furry failed to prove that East Bay knew or should have known he was working through authorized meal breaks.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.