Robert Tollen Quoted in The Recorder

An article entitled "Trial Judge’s Authority an Issue in Kenneth Cole Overtime Pay Case" in the November 4 issue of The Recorder details an oral argument hearing that was conducted in the San Francisco First District Court of Appeal in the case Murphy v. Kenneth Cole Productions, Inc. The article frequently quotes the arguments put forth by Kenneth Cole attorney Robert Tollen, a partner in our San Francisco office.

John Murphy, a store manager for Kenneth Cole, claimed that he was misclassified as an exempt employee. The California State Labor Commission concurred and set an award for Murphy which was, when appealed by Kenneth Cole attorneys to Superior Court Judge Anne Bouliane, increased and augmented with other awards for claims which were brought up for the first time. Tollen is quoted as arguing that Bouliane had no right to "jump into something that was never considered by the Labor Commission." The article then describes a debate between Tollen and plaintiff’s attorney regarding the statute of limitations and the privileges of a pro per plaintiff. "Uninformed, nonlawyer plaintiffs are subject to the statute of limitations just like anyone else," Tollen says. "They aren’t excused just because they aren’t attorneys."

The article continues, "Tollen summed up by arguing that letting trial courts hear new claims not raised during administrative proceedings provides `a disincentive for employers to pursue meritorious claims.’

"`Who knows,’ he said, `what’s hiding out there in the woodwork as far as other claims?’"