Total Articles: 244
Carothers DiSante & Freudenberger LLP • June 24, 2015
Next week, on July 3, 2015 the ordinances collectively known as the “Retail Workers Bill of Rights” - passed unanimously by the San Francisco Board of Supervisors in November 2014 - will go into effect in the City of San Francisco and the City will begin enforcing its provisions. The ordinances require the covered employers to ensure that they meet five major requirements.
Vedder Price • June 11, 2015
Store managers are typically classified as exempt from overtime based on what is known as the "executive" exemption. The California Wage Orders set out a six-part test for this exemption, but in basic form, the test asks whether the employee: manages a department or unit; directs the work of other employees; has authority over personnel decisions; exercises discretion or independence in making decisions; spends a majority (more than 50 percent) of his time engaged in managerial duties; and makes a salary above a certain level. Pretty clear that a senior management person in a retail environment would fit the bill, right? Not necessarily.
Jackson Lewis P.C. • June 10, 2015
In a wage-and-hour class action filed by food and beverage vendors working in California entertainment arenas, the California Court of Appeal has ruled that a state Labor Code provision making it unlawful for any employer to “engage” in the willful misclassification of an individual as an independent contractor applies not only to the employer actually making the misclassification, but also to any employer who is aware that the co-employer has willfully misclassified their joint employees and fails to remedy the misclassification. Noe v. Superior Court (Levy Premium Foodservice Ltd. P’ship), No. B259570 (Cal. Ct. App. June 1, 2015). However, the Court also held that an employer could not be held jointly liable under Labor Code Section 226.8 based solely on the acts of a co-employer and that the law does not provide a private right of action for enforcement.
Ogletree Deakins • June 08, 2015
As of this week’s vote, the small California city of Emeryville, which is located in San Francisco’s Bay Area, is slated to have one of the highest minimum wage rates in the country. As expected, on June 2, 2015, the Emeryville City Council voted unanimously in favor of a minimum wage ordinance that will raise Emeryville’s minimum wage rate to over $16.00 per hour by 2020.
Ogletree Deakins • June 08, 2015
In addition to implementing a minimum wage rate increase, the ordinance that the Emeryville City Council unanimously approved on June 2, 2015 will provide paid sick leave to employees in Emeryville—over and above what is already provided to employees under state law. The “Minimum Wage, Paid Sick Leave, And Other Employment Standards” ordinance includes a provision—similar to that of the San Francisco and Oakland paid sick leave laws—requiring employers to allow employees to designate a non-family member for whom they may use their sick leave. It also permits employees to take leave to care for an ill guide dog, signal dog, or service dog. Below are the key components of the new law.
Shaw Valenza LLP • June 01, 2015
Employers are always looking for innovative ways to streamline their businesses and cut costs. One area many employers want to target? The cost of providing paper payroll checks to employees. The savings associated with eliminating paper checks are potentially significant. According to a recent survey, a business with 100 employees who are paid bi-weekly could save as much as $4,200 each year. A business with 500 such employees could save more than $21,000 each year.
Ogletree Deakins • May 26, 2015
On May 19, 2015, the Los Angeles City Council voted, 14-to-1, to raise the minimum wage to $15.00 per hour in increments over the next five years. As a result, the city council will draft a proposal to raise the wage rate from $9.00 per hour to $15.00 per hour by 2020.
Ogletree Deakins • May 26, 2015
This week, the California Supreme Court agreed to review the decision in Gerard v. Orange Coast Memorial Center, No. G048039 (February 10, 2015), where the California Court of Appeal partially invalidated the Industrial Welfare Commission (IWC) wage order provision that allows employees in the health care industry to waive one of two required meal periods on shifts longer than eight hours.
Los Angeles is on track to have one of the highest minimum wages in the nation.
Littler Mendelson, P.C. • May 21, 2015
On May 19, 2015, the Los Angeles City Council approved a proposal for a gradual establishment of a citywide minimum wage of $15.00 per hour by July 1, 2020. Once adopted, Los Angeles will join other large U.S. cities, including Chicago, Seattle and San Francisco, to establish local minimum wage ordinances that far exceed the federal minimum wage of $7.25. The State of California has already raised the statewide minimum wage to $9.00 per hour effective July 1, 2014, with an increase to $10.00 per hour set to go into effect on January 1, 2016.
California employers face a host of unique employment law issues at both the state and local levels that must be taken into account when developing, implementing and enforcing employee handbooks. Littler Mendelson employment attorneys Chris Cobey and Ben Emmert, of the firm’s San Jose office, explored those challenges during a recent XpertHR webinar. After the webinar, Emmert provided answers to some key California-specific questions.
Shaw Valenza LLP • May 18, 2015
The Federal Arbitration Act preempts state law that would preclude arbitration of claims. California has such a law, which prohibits arbitration of wage claims. See Lab. Code section 229. So, if the FAA applies, it preempts that law. The U.S. Supreme Court has so held.
Shaw Valenza LLP • April 30, 2015
I posted about Augustus v. ABM here. The California Supreme Court has granted review of the case.
Fisher & Phillips LLP • April 02, 2015
California leads the nation in vigilantly regulating the conditions which constitute “hours worked.” Definitions are established, modified, and expanded by the California Labor Code, its Wage Orders, and decisions by appellate courts. The California Supreme Court recently made clear that California’s standard defining “hours worked” is more protective of employees than the rules set forth under the federal Fair Labor Standards Act (FLSA).
Shaw Valenza LLP • March 23, 2015
When non-exempt employees are performing their “regular” duties, employers typically understand their responsibility to pay for the time. But in some circumstances, it is unclear whether an employee’s time is compensable. Recently, in Mendiola v. CPS Security Solutions, Inc., the California Supreme Court addressed two such situations: on-call time and sleep time.
Carothers DiSante & Freudenberger LLP • March 23, 2015
Earlier this week, Secretary of Labor Perez announced that her agency is still working hard on revising the regulations governing the existing white collar overtime exemptions. These regulations were originally expected to be published in early 2015. However, that did not happen. Secretary Perez now expects that the regulations will be finalized and published this spring.
Vedder Price • March 18, 2015
As the number of services offered to consumers through applications ("app" or "apps") on their tablets and smartphones continue to expand, the companies that are profiting from them are facing a series of lawsuits that may redefine how they (and others) do business. These cases are not the first instance—and will undoubtedly not be the last—where wage and hour laws lag behind technological advances. Mobile apps such as Uber, Lyft and Sidecar have taken a number of markets by storm, revolutionizing the way consumers request, track and pay for taxi and "black car" rides. TaskRabbit, meanwhile, is an app attempting to redefine the way consumers complete their "to do" lists by enabling them to arrange for someone else (the "Tasker") to perform a number of different tasks such as cleaning, shopping or making deliveries. With an ever-growing number of people earning a living by serving as someone else's "private driver" or errand runner, the question being asked is whether these companies should be classified as employees or independent contractors. The answer may well determine whether certain businesses survive and/or prosper.
Shaw Valenza LLP • March 09, 2015
California law requires employers to provide non-exempt employees paid rest periods of at least 10 minutes during each four-hour work period, or major fraction thereof. Because these rest periods are short and paid, they are fundamentally different from legally mandated meal periods. For example, may an employer require employees to be “on call” during a rest break? Or must a rest break, like an unpaid meal period, be entirely free from the employer’s control?
Shaw Valenza LLP • February 20, 2015
If only I could ask the California Supreme Court to answer some wage and hour questions for my clients and me. Fortunately, the federal Ninth Circuit Court of Appeals has that authority.
FordHarrison LLP • February 17, 2015
Executive Summary: A new California Court of Appeal decision has invalidated a 22-year-old healthcare industry exception that had given the industry some flexibility with respect to how it provided its employees working extra-long shifts with meal breaks. The decision is expected to have serious and immediate ramifications for employers in the patient care industry not only because of its invalidation of a long-standing exception but also because of its retroactive effect on previously existing practices.
Shaw Valenza LLP • February 17, 2015
Here's one of those cases where California's labyrinth of employment laws conflict, the employer chooses to rely on one of them, and the employer finds out it made the wrong choice. The lesson arises in the context of a meal break class action.
Jackson Lewis P.C. • February 11, 2015
Reversing a trial court’s awarding of a $90 million judgment in a class action case for alleged rest period violations under California law, the California Court of Appeal has ruled that a security company had provided its security guards with proper rest periods, even though they were required to remain “on call” during those breaks. Augustus v. ABM Sec. Services, Inc., Nos. B243788 & B247392 (Cal. Ct. App. Jan. 29, 2015). Significantly, the Court ruled that remaining on call during rest breaks does not “constitute performing work” under Section 226.7 of the Labor Code, which mandates that during rest breaks, an employee not be required “to work,” and the corresponding wage order.
FordHarrison LLP • February 02, 2015
Executive Summary: On January 29, 2015, a California appeals court published a modified version of an opinion examining, in part, an employer's obligation under the state's rest break requirements. Critically, the opinion concludes that the rest break requirement only prescribes that an employee not be required to work on a rest break, not that he or she be relieved of all duties. The opinion provides much needed guidance to employers in understanding the distinction between California's meal and rest break requirements.
Shaw Valenza LLP • January 30, 2015
The Court of Appeal ruled that security guards' rest periods were lawful, even though employees might have to respond to an emergency call during a rest period. We're especially happy about this decision because we wrote an amicus curiae brief supporting the employer on behalf of the California Chamber of Commerce.
Shaw Valenza LLP • January 26, 2015
On December 5, 2014, the city and county of San Francisco enacted two ordinances, collectively known as the “Retail Workers Bill of Rights” (“RWBR”). The ordinances are aimed at giving chain store employees more predictable work schedules and the opportunity to work more hours.
Jackson Lewis P.C. • January 21, 2015
Holding that “hours worked” under California Labor Code and Industrial Welfare Commission (“IWC”) Wage Order No. 4-2001 (“Wage Order 4”) include all time spent at the employer’s workplace and under the employer’s control, such as sleep time, the California Supreme Court has ruled that security guards were entitled to compensation for all on-call time, including sleep time. Mendiola v. CPS Security Solutions, Inc. et al., No. S212704 (Cal. Jan. 8, 2015). Significantly, the Court refused to incorporate into Wage Order 4 the federal regulation allowing exclusion of sleep time from hours worked and disapproved prior California case law applying the federal regulation to employees working 24-hour shifts.
Ogletree Deakins • January 12, 2015
On January 8, 2015, the California Supreme Court issued a decision holding that the on-call hours for security guards who work 24-hour shifts constituted compensable hours worked. Further, the court ruled that the guards’ employer could not exclude “sleep time” from the guards’ 24-hour shifts and in doing so rejected the analysis under earlier California decisions, Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16 and Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361. Mendiola v. CPS Security Solutions, Inc., No. S212704, California Supreme Court (January 8, 2015).
Shaw Valenza LLP • January 09, 2015
The California Supreme Court (unanimously) affirmed the Court of Appeal's decision in Mendiola v. CPS Security Solutions, Inc. We posted about the Court of Appeal's decision here. However, the Supreme Court actually went farther than the Court of Appeal in deciding that security guards' on-premises, on-call time is compensable as hours worked.
Fisher & Phillips LLP • November 24, 2014
The San Francisco Board of Supervisors has voted unanimously to approve a city ordinance, which will create a number of obstacles for many businesses – including retail stores, restaurants, and banks. The ordinance, referred to as the “Retail Workers Bill of Rights,” will severely limit employers’ flexibility and discretion in hiring and allocating work hours among employees. In addition, employers will be penalized if they fail to meet the burdensome and intricate requirements established by the ordinance.
Fisher & Phillips LLP • November 21, 2014
Todd Scherwin and Jonathan Liu’s article “Beware of How you Pay Your Employees You May Pay More” was featured in California Clubs of Distinction’s Third Quarter Newsletter.
Shaw Valenza LLP • November 17, 2014
This is not a class action post, bored blog readers. Read this one if you are interested in meal and break issues.
Jackson Lewis P.C. • November 13, 2014
A City of Oakland ballot measure increasing the minimum wage for most employees, requiring paid sick leave and mandating payment of employer-levied service charges to employees has passed with over 80 percent of the vote. Measure FF’s provisions raising the minimum wage and requiring paid sick leave will go into effect March 2, 2015; the provision tendering payment of service charges takes effect 10 days after the Oakland City Council formally declares the election results.
Shaw Valenza LLP • November 12, 2014
The San Francisco minimum wage will increase as follows in the years to come:
Fisher & Phillips LLP • November 10, 2014
For those of us who work with employees in highly specialized fields, it is important to never lose track of the recurring issue of whether exempt classification of employees for overtime purposes is appropriate. While all employers should make it a practice to evaluate the classification of employment positions, employers in the professional and technical industries, such as engineers, architects and contractors, should pay close attention to whether the professional exemption correctly applies to certain skilled employees.
Ogletree Deakins • November 07, 2014
In Godfrey v, Oakland Port Services Corp., which was decided on October 28, 2014, the California Court of Appeal issued a published decision holding that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt California’s meal and rest period requirements. The case is significant because it is the latest California decision holding that the FAAAA does not preempt California’s wage and hour laws
Fisher & Phillips LLP • November 06, 2014
On Tuesday, San Franciscans overwhelmingly voted to raise the City’s minimum wage to $15.00 over the next few years. The San Francisco current minimum wage of $10.74 is already higher than both the federal minimum wage of $7.25 and California’s minimum wage of $9.00. Under the new law, wages will rise to $11.05 on January 1, 2015, then to $12.25 in May 2015, before increasing every year until they reach $15.00 in 2018.
Fisher & Phillips LLP • October 02, 2014
As class actions continue to plague employers in California, one area that is often overlooked is expense reimbursement. The California Labor Code makes clear that employers must indemnify employees for all necessary expenditures or losses incurred as a direct consequence of discharging their duties, or obedience to the directions of the employer. This is so even if the duty is unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
Fisher & Phillips LLP • October 02, 2014
Three years ago, the California Supreme Court addressed the scope of California’s overtime regulations contained in the California Labor Code and Wage Orders promulgated by its Industrial Welfare Commission. Sullivan et al v. Oracle Corporation. The Supreme Court held that work performed in California by nonresident employees of Oracle was covered by the California Labor Code.
Ogletree Deakins • September 22, 2014
On August 27, 2014, the California Court of Appeal issued its decision in the long-anticipated Russ-Will case, Sheet Metal Workers’ International Association, Local 104 v. Duncan; Russ Will Mechanical, Inc., Court of Appeal of the State of California, First Appellate District, Division Three, No. A131489 (August 27, 2014). The court held that the California prevailing wage law does not apply to employees who fabricate materials for a public works project at a permanent, offsite manufacturing facility that is not exclusively dedicated to the project. It is a published decision, which means it is binding upon the California trial courts, the California Department of Industrial Relations (DIR), and the Division of Labor Standards Enforcement.
Ogletree Deakins • September 15, 2014
On Monday, September 1 in a Labor Day speech, Los Angeles Mayor Eric Garcetti announced his proposal to increase the city’s minimum wage to $13.25 per hour by 2017, and to tie the minimum wage to the Consumer Price Index going forward. California’s minimum wage increased this summer to $9 per hour, and will increase again to $10 per hour in January of 2016.
Shaw Valenza LLP • September 08, 2014
Allstate re-classified its adjusters to be non-exempt some years back. Rather than require employees to keep their work time on time sheets or use a time clock, the employees were paid a standard eight hours per day / 40 hours per week.
Shaw Valenza LLP • September 04, 2014
The California Division of Labor Standards Enforcement, or DLSE, is the state agency responsible for enforcing state wage-and-hour laws. In conjunction with its enforcement duties, the DLSE issues “opinion letters” at the request of the public, opining as to the legality of a wage-and-hour practice that an employer has implemented, or plans to implement. The DLSE has also developed an “Enforcement Policies and Interpretations Manual,” consisting of guidelines to assist its staff in investigating and adjudicating wage claims.
Ogletree Deakins • August 21, 2014
Cell phones are ubiquitous. At some companies, employees use their personal phones to make business calls. Does an employer need to “pay” for that use of the phone, even if the employee did not incur any extra expenses for doing so? Yes, according to an appellate court in a recent California case, Cochran v. Schwan’s Home Service, Inc., Court of Appeal of California, Second Appellate District, Division Two, No. B247160 (August 12, 2014).
Constangy, Brooks, Smith & Prophete, LLP • August 14, 2014
Starting August 13, 2014, San Francisco's "Ban the Box" ordinance (the Fair Chance Ordinance) imposes strict rules on certain private employers regarding applicants' and employees' arrest and conviction records and related information.
Ogletree Deakins • July 30, 2014
Harris v. Pac Anchor Transportation, Inc., No. S194388 (July 28, 2014): In a unanimous decision, the California Supreme Court has held that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt an action brought under California’s Unfair Competition Law (UCL) when the action does not relate to the prices, routes, or services of a motor carrier with respect to the transportation of property. As a result, the state of California can proceed with its action against a trucking company and its owner for allegedly misclassifying their drivers as independent contractors and for other alleged violations of California’s labor and unemployment insurance laws.
Shaw Valenza LLP • July 23, 2014
Basic wage-hour principle: With some exceptions, an employee classified as "exempt" under the federal Fair Labor Standards Act is entitled to a full salary for any week in which she / he performs any work. There are some exceptions allowing for salary deductions. For example, an employer can deduct from an exempt employee's salary for full-day absences for personal pursuits, or full day absences for illness if the employer has a bona fide paid sick leave plan.
Jackson Lewis P.C. • July 22, 2014
Employers with at least 50 full-time employees in the San Francisco Bay Area must offer commuter benefits, such as payments for commuter transit passes made with employees’ pre-tax earnings, to any employee who works at least 20 hours per week no later than September 30, 2014.
Shaw Valenza LLP • July 15, 2014
The California Supreme Court unanimously decided the following: "an employer may not attribute commission wages paid in one pay period to other pay periods in order to satisfy California?s compensation requirements."
Shaw Valenza LLP • July 14, 2014
Trucking companies subject to the Federal Aviation Administration Authorization Act have litigated a number of cases concerning whether federal law preempts California wage-hour requirements concerning meal and rest periods. The FAAAA provides: “States may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).
Fisher & Phillips LLP • July 07, 2014
Existing law requires that California’s minimum wage for all industries be no less than $9 per hour effective July 1, 2014 and $10 per hour effective January 1, 2016. Even before the second-tier increase goes into effect, new legislation has been introduced seeking to further increase California’s minimum wage.
Ogletree Deakins • June 30, 2014
Salas v. Sierra Chemical Co., S196568 (June 26, 2014): On June 26, the California Supreme Court issued a decision holding that federal immigration law does not preempt a California law that extends state law protections to all workers regardless of their immigration status. However, the court held that federal law does preempt state law on the issue of liability for lost wages for any period after an employer discovers that an employee is not authorized to work in the United States.
Shaw Valenza LLP • May 23, 2014
Kaiser won summary judgment against an employee who claimed he was working off the clock, contrary to Kaiser policy and procedures for reporting time worked.
Vedder Price • April 02, 2014
Effective January 1, 2014, SB 435 expanded the scope of Cal. Labor Code Section 226.7 (known for providing premium pay for missed meal and rest periods) to require employers of outdoor workers to provide premium pay to employees who missed "recovery periods." A recovery period is defined as a "cooldown period afforded to employee to prevent heat illness."
Fisher & Phillips LLP • April 01, 2014
California employers are acutely aware of the typical schedule worked by employees: eight hours a day, five days a week. As we have become accustomed to doing, California law generally requires employers to pay employees overtime wages for hours worked in excess of eight hours during any 24-hour period. But in many cases, limiting employees to working only eight hours a day is not the most convenient for either the employee or the Company. End of the story? Not so fast.
Jackson Lewis P.C. • February 27, 2014
Private sector employers in the City of San Francisco will have to comply with new “ban the box” legislation restricting questions about applicants’ criminal records on applications for employment and during job interviews.
Ogletree Deakins • February 25, 2014
San Francisco has “banned-the-box” on employment applications and has added other restrictions on private employers’ ability to obtain and use criminal history information. The City and County of San Francisco Board of Supervisors passed Ordinance number 131192 on February 11, 2014, and the mayor signed it on February 14, 2014. The ordinance will become effective on August 13, 2014. San Francisco joins Buffalo, Newark, Philadelphia, and Seattle as the fifth major municipality to “ban the box” on employment applications for private employers. Four states “ban the box”: Hawaii, Massachusetts, Minnesota, and Rhode Island.
Shaw Valenza LLP • February 11, 2014
"Ban the box" means to get rid of boxes on employment applications asking for criminal history. The idea is so that employers don't automatically reject applicants with criminal convictions if they might otherwise be qualified to hold a job.
Shaw Valenza LLP • January 14, 2014
The San Francisco Family Friendly Workplace Ordinance is set to take effect on January 1, 2014. The new law will require employers to consider workers’ requests for flexible work arrangements and predictable work schedules due to caregiving responsibilities.
Jackson Lewis P.C. • January 13, 2014
The California Division of Labor Standards Enforcement (DLSE) is taking aim at employers for wage theft. In the latest example of the Division’s aggressive stance, it claimed Little Lopez Corporation, a janitorial services provider, owed wages to 41 current and former employees and, following an investigation, has issued citations to the company totaling $332,675.
Fisher & Phillips LLP • January 09, 2014
As the new year begins, California employers, already weary from added wage and hour laws and regulations enacted over the past several years, have yet more to comply with. Here are the highlights.
Shaw Valenza LLP • January 02, 2014
The Ninth Circuit is considering several class action appeals over California's "suitable seating" requirement contained in its wage orders.
Jackson Lewis P.C. • December 18, 2013
Announcing that “class-wide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof,” the California Court of Appeal reversed an order denying certification of a class of restaurant managers who claimed they were misclassified as exempt employees and denied overtime pay in violation of California law. Martinez et al. v. Joe’s Crab Shack et al., No. B242807 (Cal. Ct. App. Dec. 4, 2013). The Court found that the trial court incorrectly focused on factual disputes regarding how the managers spent their time, rather than on the employer’s policies the managers alleged resulted in their misclassification. In so doing, the trial court improperly shifted the burden of proving the exemption to the employees, the Court noted.
Shaw Valenza LLP • December 16, 2013
Sorry. I meant "Pabulous!" Looks like I almost ran out of F-words to describe the new San Francisco Flexible Family Friendly Ordinance.
Jackson Lewis P.C. • December 12, 2013
Employees who alleged they remained in their jobs after the employer made oral promises of a bonus upon completion of the sale of the company, which bonus was never paid, had adequately pled claims for promissory fraud (concealment), breach of contract and promissory estoppel, the California Court of Appeal has ruled, reversing dismissal of those causes of action. Moncada et al. v. West Coast Quartz Corp. et al., No. H036728 (Cal. Ct. App. Nov. 22, 2013). However, the Court affirmed the dismissal of the employees’ claims for intentional infliction of emotional distress, negligent misrepresentation, and equitable estoppel.
Jackson Lewis P.C. • December 12, 2013
As common issues predominated regarding whether the employer had a policy of denying compensation for certain pre-shift work in violation of California’s wage and hour laws, denial of class certification is not appropriate, the California Court of Appeal has ruled, reversing the lower court. Jones et al. v. Farmers Ins. Exchange, No. B237765 (Cal. Ct. App. Nov. 26, 2013). However, the Court also ruled that the named plaintiff was not an adequate class representative and allowed the employees to amend their complaint to name a new class representative.
Shaw Valenza LLP • November 18, 2013
Sales commissions can lead to wage-hour disputes. Commissions are wages. Wages are due when they are earned. Employees naturally want to be paid as soon as possible. Employers desire control over when a commission is “earned” to avoid premature payment. Some sales transactions take time to complete. Products can be returned and payment refunded.
Shaw Valenza LLP • November 04, 2013
Most California employers know they must pay non-exempt employees for all their work hours. However, understanding pay and related obligations can be significantly more complicated when an employee’s workday does not begin and end in a single location—for example, if the employee services several clients throughout the workday.
Fisher & Phillips LLP • November 01, 2013
Under the San Francisco Family Friendly Workplace Ordinance signed on October, 30, 2013 by Mayor Edward Lee, parents and caretakers have been afforded the right to request modified work schedules, such as a change in start times, part-time and part-year schedules, telecommuting and schedule predictability.
Ogletree Deakins • October 31, 2013
In 2013, Governor Jerry Brown signed into law approximately 9 out of 10 bills presented to him. This three-part blog series summarizes the new legislation and captures the key employment law related bills that are likely to affect the most private employers in California. The first part of this series focuses on the newly-signed wage and hour legislation in California. Parts two and three will focus on the EEO, disability, leave, and immigration-related bills that the governor recently signed. Unless otherwise specified, all of the newly enacted legislation will become effective on January 1, 2014.
Jackson Lewis P.C. • October 21, 2013
San Francisco Mayor Edwin M. Lee (D) has signed an Ordinance allowing employees working in the City to request flexible work arrangements to care for a child, family member with a serious health condition, or parent over age 65 without retaliation. Employers must consider employees’ requests and must provide business reasons for denying them. San Francisco joins the State of Vermont, which enacted similar legislation in May 2013, in adding another dimension to employee leave management. The Ordinance becomes operative January 1, 2014.
Jackson Lewis P.C. • October 16, 2013
Effective January 1, 2014, private individuals employing domestic workers in California, such as childcare providers and caregivers, must pay such employees overtime at a rate of time-and-a-half for all hours worked in excess of nine in one day or more than 45 hours in one week. The new law will expired on January 1, 2017, unless it is extended.
Shaw Valenza LLP • October 14, 2013
We posted about San Francisco's newest ordinance here. Here's an update.
Fisher & Phillips LLP • October 07, 2013
On September 26, 2013, Governor Jerry Brown signed into law a bill which entitles personal attendants in California to overtime pay. Previously, Industrial Welfare Commission Wage Order 15 provided a complete overtime exemption for all such workers. Beginning January 1, 2014, AB 241 mandates that personal attendants be paid one and one-half times their regular rate of pay for all hours worked in excess of nine hours in any workday and 45 hours in a workweek. Personal attendants include any persons employed by a private householder or by any third-party employer recognized in the healthcare industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.
Shaw Valenza LLP • October 04, 2013
The San Francisco Board of Supervisors passed an ordinance requiring an employer to consider employees' requests for "flexible or predictable" working arrangements to assist with care giving responsibilities. The employer can deny the request for legitimate reasons. But there will be another poster, and the city's Office of Labor Standards Enforcement will enforce its anti-retaliation provisions.
Fisher & Phillips LLP • October 02, 2013
With the increasing focus on wage-and-hour litigation, the issue of an employee’s “regular rate” arises in most every case involving alleged unpaid overtime. It also factors into an employer’s payroll, each and every pay period. Here’s a brief roadmap through this sometimes rocky terrain.
Fisher & Phillips LLP • October 02, 2013
Governor Jerry Brown recently signed into law a bill that will increase California’s minimum wage in two phases. Beginning July 1, 2014, the minimum wage for California employees will rise from the current $8 per hour to $9 per hour. On January 1, 2016, the minimum wage will increase to $10 per hour.
Shaw Valenza LLP • September 30, 2013
The Ninth Circuit Court of Appeals decided that an employer's "on duty" meal period program for security guards was susceptible to class action treatment.
Jackson Lewis P.C. • September 26, 2013
California Governor Jerry Brown on September 25, 2013, signed into law a bill that increases the state’s hourly minimum wage rate from $8.00 an hour up to $10.00 an hour by January 1, 2016. The new law (AB 10) amends Section 1182.12 of the California Labor Code and does not automatically increase the wage rate annually based on inflation. The rate increase will take effect in two stages: a $1.00 increase on July 1, 2014, to $9.00 an hour, and another $1.00 increase on January 1, 2016, to $10.00 an hour. The last time California increased its minimum wage was on January 1, 2007.
Ogletree Deakins • September 26, 2013
Minimum wage earners across the state are celebrating.
Shaw Valenza LLP • September 25, 2013
The Governor will sign AB 10 on 9/25. The new bill will raise the California minimum wage from its current $8.00 per hour to $9.00 on January 1, 2014. Then it will go up to $10.00 on January 1, 2016.
Shaw Valenza LLP • August 29, 2013
Governor Jerry Brown signed SB 462 (here). This law amends Labor Code Section 218.5, which allows attorney's fees to be awarded to the prevailing party in lawsuits over unpaid wages, fringe benefits, or pension fund contributions.
Fisher & Phillips LLP • July 22, 2013
The California Supreme Court denied review of a California Court of Appeal case, which held that piece-rate-paid employees are entitled to separate hourly pay for “waiting” time. Gonzalez v. Downtown LA Motors.
Jackson Lewis P.C. • July 15, 2013
Security guards who worked 24-hour weekend shifts were not entitled to compensation for eight hours of sleep time, the California Court of Appeal has ruled. Mendiola v. CPS Security Solutions, Inc., No. B240519 (Cal. Ct. App. July 3, 2013). Reversing a preliminary injunction ordering the employer to compensate its guards for all nightly on-call time, the Court found that excluding eight hours of sleeping time during weekend shifts from the guards’ compensation was proper under California law. However, the Court found the guards’ weekday nightly on-call hours were compensable.
Shaw Valenza LLP • July 08, 2013
CPS guards construction sites. Some of the security guard employees sleep in on-site trailers. CPS compensated them for the time they were required to investigate potential problems at the sites, such as break ins. Otherwise, the employees were considered "on call," but were uncompensated.
Shaw Valenza LLP • July 01, 2013
Some organizations pay employees by the piece rate, that is, based on certain tasks completed rather than based on the number of hours worked. Piece rate compensation is particularly common in the automotive repair industry. In Gonzalez v. Downtown LA Motors, LP, the California Court of Appeal decided that auto technicians paid a piece rate for work performed must be paid by the hour for all time spent on tasks not specifically included in the piece rate (referred to by the court as “waiting time”).
Constangy, Brooks, Smith & Prophete, LLP • June 07, 2013
A state appellate court in Los Angeles recently addressed the "multi-tasking" responsibilities of managerial employees and interpreted California's wage and hour laws in a manner different from FLSA regulations. In Heyen v. Safeway, Inc., the Court of Appeals for the Second Appellate District affirmed an advisory jury and court decision in favor of a grocery store assistant manager whom the jury and court found did not qualify for the executive exemption from overtime compensation under California law because the assistant manager regularly spent more than 50 percent of her work hours doing "non-exempt" tasks such as bagging groceries, bookkeeping, and stocking shelves.
Shaw Valenza LLP • May 28, 2013
Safeway compensated truck drivers based on a compensation formula rather than a straight hourly rate:
Shaw Valenza LLP • May 28, 2013
Safeway stores employ assistant managers who supervise many employees and have responsibility for hiring, supervising, budget compliance, etc. But the stores' "operating budgets" and other policies allegedly require assistant managers to work the cash register and perform bookkeeping duties at times. The assistant managers can supervise associates while "multi-tasking" / working the checkout line.
Jackson Lewis P.C. • May 23, 2013
Is an insurance adjuster who is paid $29 for every hour worked an employee exempt from overtime pay under California law?
Jackson Lewis P.C. • May 23, 2013
Reversing the denial of class certification in an action for meal and rest period violations and unpaid overtime under California law brought by private security guards, the California Court of Appeal has ruled that the plaintiffs’ claims were amenable to class treatment because they alleged that the employer had unlawful, uniform policies regarding meal and rest periods. Faulkinbury v. Boyd & Associates, Inc., No. G041702 (Cal. Ct. App. May 10, 2013). Likewise, the Court held the employees’ claims that the employer incorrectly excluded certain reimbursement payments and bonuses from the calculation of overtime also were subject to common proof and could be resolved on a class basis.
Shaw Valenza LLP • May 17, 2013
The plaintiff was an insurance adjuster. He was paid $29 / hour for every hour worked, including overtime. He always worked more than 40 hours per week. In a wage-hour lawsuit, he claimed he was not properly classified as exempt because he was not paid on a salary basis. (He challenged the duties test as well it appears). The employer argued that he was never paid less than 40 X $29 because he always worked overtime. Therefore, he earned the equivalent of a salary. The trial court bought that argument.
Fisher & Phillips LLP • April 04, 2013
On March 20, 2013 a California Appellate court reinforced the fact that employees who attempt to certify class claims of “misclassification” of exempt employees (and related meal- and rest-period claims) face an uphill battle. William Dailey v. Sears, Roebuck and Company.
Fisher & Phillips LLP • April 04, 2013
As most California employers know, the state generally requires that all employees who work more than five hours must be provided an unpaid, duty-free meal period of no less than 30 minutes, to commence before the end of the fifth hour of work, and a second meal period of similar length if employees work more than 10 hours, to commence before the end of the tenth hour of work. In most cases, the employee must be free to leave the premises, and the meal period must be documented on the employee’s time record.
Shaw Valenza LLP • April 03, 2013
An auto dealership compensated its mechanics based on a "piece rate" system. For repairs, the company would pay the employees based on a standard period of time allowed for a repair (flag hours). The pay rate was significantly higher than minimum wage. So, if the job took longer than standard hours, there was enough wages to ensure the mechanic earned more than minimum wage.
Fisher & Phillips LLP • January 04, 2013
Effective January 1, 2013, a new California law requires that employees entering into employment agreements which involve compensation, even in part, on a “commission” basis must be provided a written contract which sets forth the method by which the commission is computed and paid. Employers must provide the employee with a signed copy of the commission agreement and obtain a signed acknowledgment of receipt of the copy. We first reported on this in a Legal Alert, which you can access here.
Fisher & Phillips LLP • December 14, 2012
Beginning January 1, 2013, a new California law requires that employees who are paid on commission must be provided a written contract which sets forth the method by which the commission shall be computed and paid. This new law further requires that the employer provide a signed copy of the commission agreement to the employee and obtain a signed receipt for it.
Fisher & Phillips LLP • December 03, 2012
For many years, some employers have chosen to "round" non-exempt employees' time entries in computing their wages. News items in recent days have reported on a California appellate court's ruling in See's Candy Shops, Inc. v. Superior Court and Silva that a properly administered "rounding" practice does not violate California wage-hour law.
Jackson Lewis P.C. • November 27, 2012
Under California law, employers’ timekeeping policy that rounds employee punch-in and -out times to the nearest one-tenth of an hour is permissible, the California Court of Appeal has ruled. See’s Candy Shops, Inc. v. Superior Court, No. D060710 (Cal. Ct. App. Oct. 29, 2012). Previously, no California statute or case law expressly permitted this common employer practice, though the practice is permissible under federal law, which is followed by the California Division of Labor Standards Enforcement (DLSE). The Court reversed summary judgment for the plaintiff in the certified wage and hour class action. Jackson Lewis’ David S. Bradshaw, James T. Jones, and Paul F. Sorrentino represented the employer in this case.
Shaw Valenza LLP • November 21, 2012
"LA is a great big freeway. Put a hundr"...oh, is this on? Oops.
Shaw Valenza LLP • November 07, 2012
The San Francisco Office of Labor Standards Enforcement announced that the San Francisco minimum wage will increase to $10.55 per hour, effective January 1, 2013. The statewide minimum is $8.00 per hour.
Jackson Lewis P.C. • November 07, 2012
Amendments to the California Labor Code impose new wage reporting requirements on “temporary services employers” and allow all employees to recover statutory penalties for violations, even where they suffer no actual loss in wages as a result of a deficiency in a wage statement.
Shaw Valenza LLP • November 02, 2012
I posted about the Court of Appeal's opinion in Harris v. Superior Court here. That decision, on remand from the California Supreme Court, would have severely limited the administrative exemption. Fortunately, the California Supreme Court has now de-published the decision (here), so it is no longer good law. The bad news is that the Supreme Court's guidance on the administrative exemption is rather vague and remains open to lower courts' interpretations.
Shaw Valenza LLP • October 18, 2012
There are state and federal law provisions that exempt certain employees from laws requiring overtime pay. The various exemptions apply only to those workers who meet the exemptions’ particular criteria. These criteria may differ under state and federal law. As a result, an employee may be entitled to overtime under federal law, even if his job qualifies for an exemption under state law (and vice versa).
Jackson Lewis P.C. • October 09, 2012
Ruling a recruiter was a commissioned salesperson because his job involved sales and his compensation was based on those sales, the California Court of Appeal, Fourth Appellate District, has rejected an employee’s claims for unpaid overtime and meal period premium pay against his employer on behalf of himself and a class of current and former employees. Muldrow v. Surrex Solutions Corp., No. D057995 (Cal. App. 4th Dist. Aug. 29, 2012). The Court found the employees were subject to California’s commissioned employee exemption and affirmed the judgment in favor of the employer.
Fisher & Phillips LLP • October 02, 2012
Employers in California have been perplexed by various state regulations that have confusing and inconsistent provisions. One regulation addresses the "reporting-time" premium which requires employers to pay a minimum amount of hourly wages when employees report to work. Different standards apply depending on whether an employee reports for the first or second time within a single calendar work day.
Fisher & Phillips LLP • October 02, 2012
Employers who have commission-sales employees working under two California Wage Orders recently received good news from a California appellate court which essentially clarified and strengthened the commission-sales exemption contained in Section 3D of Wage Orders 4-2001 (certain listed occupations) and 7-2001 (mercantile). Muldrow et al v. Surrex Solutions Corporation.
Shaw Valenza LLP • September 24, 2012
We first blogged about Aleman v. Airtouch Cellular here. I was pretty excited because I'm a dork. Oh, and because the Court of Appeal addressed two issues that come up all the time for clients, but never in court: "reporting time" and the "split shift" premium. You remember.
Jackson Lewis P.C. • September 17, 2012
In a long-awaited ruling, the California Supreme Court held in April 2012 that employers need not ensure that their workers take meal and rest periods required by California law, but only that workers are provided the breaks. One effect of Brinker Restaurant Corp. v. Superior Court, welcomed by many California employers, was to make it harder for plaintiffs to get classes certified. Several meal-and-rest-period cases were returned to the state Courts of Appeal for reconsideration in light of Brinker. Thus far, the courts have affirmed dismissal of claims for meal-and-rest period violations in one case (Muldrow v. Surrex Solutions, Inc., No. D057955 (Cal. Ct. App. Aug. 29, 2012)) and affirmed denial of class action certification for such violations in two cases (Hernandez v. Chipotle Mexican Grill, Inc., B216004 (Cal. Ct. App. Aug. 30, 2012), and Lamps Plus Overtime Cases, No. B220954 (Cal. Ct. App. Sept. 5, 2012)).
Shaw Valenza LLP • September 04, 2012
Tyrone Muldrow and a class of recruiters sued their employer, Surrex Solutions Corporation, for unpaid overtime, meals and breaks.
Shaw Valenza LLP • July 25, 2012
Harris v. Superior Court (discussed here and article here) is the California Supreme Court's recent interpretation of the administrative exemption. The Supreme Court reversed the lower court's decision, saying the court of appeal mis-applied the law. Of note, the court insisted that the court of appeal apply the relevant standards in the wage order, which includes reliance on certain federal Department of Labor Regulations. The court sent the case back down for the court of appeal's re-consideration.
Shaw Valenza LLP • July 11, 2012
Verizon paid certain employees on commission. The commissions were paid on wireless subscriptions. However, if customers canceled their service, Verizon would charge back commissions advanced to employees, under the assumption that the customer would pay for the entire subscription. Here is the court of appeal's description of the commission plan:
Shaw Valenza LLP • July 09, 2012
Many employers who do business with the government have heard of the "prevailing wage."
Fisher & Phillips LLP • July 03, 2012
On April 12, 2012, the California Supreme Court decided Brinker Restaurant Corporation v. Superior Court (Hohnbaum), pending since 2008. We reported on the decision in a Legal Alert, and in an extended webinar, which you can access here and here. Because it's such a significant decision, more remains to be said.
Fisher & Phillips LLP • July 03, 2012
On April 12th, 2012, the California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court. The decision finally determined that employers do not need to ensure that their employees take advantage of legally-mandated meal and rest periods. Employers need only provide employees the opportunity to do so. An employer is not liable for a missed meal or rest period if such a break is provided but the employee voluntarily chooses not to take one – or voluntarily chooses to work during the break or end the break early. We reported on the decision in a Legal Alert, which you can access here.
Shaw Valenza LLP • June 05, 2012
Governor Brown signed legislation amending Labor Code sections 98 and 1194.2 effective January 1, 2012. The new provisions allow the Division of Labor Standards Enforcement (DLSE) to award "liquidated damages" to employees who file administrative claims with the agency. Previously, liquidated damages were available only in court actions.
Jackson Lewis P.C. • May 29, 2012
A car wash was liable for unpaid wages and penalties owed by a separate and unrelated business that had operated a car wash at the same location before the property owner evicted it, the California Court of Appeal has held under Section 2066 of the California Labor Code, which applies exclusively to the car washing and polishing industry. People ex rel. Harris v. Sunset Car Wash, LLC, No. B233915 (Cal. App. Dist. 2 Div. 5 May 16, 2012). Affirming a $120,000 judgment against the new car wash operator, the Court concluded it was a “successor” within the meaning of Section 2066 of the California Labor Code because it operated in the same location and performed the same services. Justice Orville A. “Jack” Armstrong issued a vigorous dissent, declaring the Court’s decision violated the precepts of statutory interpretation, misapprehended legislative intent, and visited a gross injustice on the new car wash operator.
Jackson Lewis P.C. • May 09, 2012
The California Supreme Court has reversed an award of attorney’s fees to an employer that successfully defended a claim for failure to provide rest periods mandated under Section 226.7 of the California Labor Code. Kirby v. Immoos Fire Protection, Inc., No. S185827 (Cal. Apr. 30, 2012). In a seminal decision, the Court ruled the California Labor Code does not permit an attorney’s fee award to a prevailing party on such a claim. This ruling follows on the heels of the Court’s decision that employers need not ensure that their workers take meal periods required by California law, but only that workers are provided the meal periods. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Calif. Apr. 12, 2012). For more on Brinker, see our article, California High Court Clarifies California Meal-and-Rest Rules.
Shaw Valenza LLP • May 03, 2012
Under California law, employers are required to make available to nonexempt employees meal and rest breaks. Employers that fail to do so must pay certain premium wages. After years of litigation over these seemingly simple requirements, the California Supreme Court on April 12, 2012, issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court. The Court provided welcome guidance to the bench and bar regarding class certification law and meal and rest period requirements.
Jackson Lewis P.C. • April 19, 2012
In welcome news for many California employers facing class actions based on the state break rules, the California Supreme Court has held that employers need not ensure that their workers take meal periods required by California law, but only that workers are provided the meal periods. The employer’s obligation “is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done,” the Court explained. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 (Calif. Apr. 12, 2012). Should the employee choose to work after being relieved of duty, however, he or she must receive pay for the time worked, but is not entitled to the one hour of premium pay under California law for working during a meal break.
Constangy, Brooks, Smith & Prophete, LLP • April 17, 2012
Yesterday morning, the California Supreme Court issued its long awaited decision in the case Brinker v. Superior Court (Hohnbaum), S166350. The Brinker decision involved a class action against a number of restaurants operated by Brinker Restaurant Corporation, alleging that Brinker failed to provide meal and rest periods required by California law and required employees to work off the clock, and seeking to certify a class of approximately 60,000 restaurant employees.
Shaw Valenza LLP • April 16, 2012
I have taken more time to read Brinker. Here are some thoughts to add on to yesterday's post.
Shaw Valenza LLP • April 16, 2012
Effective 4/12/12, the DLSE updated its templates and FAQs to help employers comply with the Wage Theft Prevention Act. You can find the page of forms here. I guess they couldn't wait until the Brinker hoopla died down a little?
Fisher & Phillips LLP • April 13, 2012
On April 12, 2012 the California Supreme Court clarified the meal- and rest-period laws, as well as standards for class certification for these claims, and for off-the-clock claims. This case has been pending before the court since 2008, and its legal impact of the decision is far reaching. Brinker Restaurant Corp. v. Superior Court of San Diego.
Shaw Valenza LLP • April 13, 2012
I will digest the Court's unanimous Brinker opinion a bit later. Those of you waiting to read it, it is here.
Ogletree Deakins • April 13, 2012
Today, the California Supreme Court finally issued its opinion in Brinker v. Superior Court, a case that had been on its docket since 2008. In what has generally been acknowledged as a major victory for California employers, the court issued clear rules on how and when meal and rest periods must be provided. In addition, the justices provided additional important comments on the standards to be applied by trial courts in considering motions for class certification in cases generally. Brinker Restaurant Corp. v. The Superior Court of San Diego County
Shaw Valenza LLP • April 12, 2012
I think we're finally going to find out what the law is on meal periods in California. But I have no idea if employers are going to like it or not.
Fisher & Phillips LLP • April 03, 2012
The California Court of Appeal, Fourth Appellate District, handed employers a mixed blessing in a recent case, holding that employees cannot make a Private Attorneys General Action (PAGA) claim based upon alleged violations of Industrial Wage Commission (IWC) Wage Orders. Rather, PAGA claims can only be based upon statutory rights.
Shaw Valenza LLP • March 23, 2012
California employersâ€™ decisions to classify workers as â€œexemptâ€ from overtime and other wage-hours laws are among the most commonly litigated claims. There is ample ground for disputes between lawyers and their clients. Determining whether an employee is properly classified as exempt is fact-specific and requires applying vague and confusing laws and regulations.
Shaw Valenza LLP • March 23, 2012
The California Industrial Welfare Commissionâ€™s (â€œIWCâ€) wage orders describe the circumstances under which California employers must pay employees for â€œreporting timeâ€ and â€œsplit shifts.â€ A â€œsplit shiftâ€ is â€œa work schedule that is interrupted by non-paid non-working periods established by the employer,â€ other than meal or rest breaks. â€œWhen an employee works a split shift, one . . . hourâ€™s pay at the minimum wage shall be paid in addition to the minimum for that workday.â€
Jackson Lewis P.C. • February 16, 2012
Ruling a recruiter was a commissioned salesperson because his job involved sales and his compensation was based on those sales, the California Court of Appeal, Fourth Appellate District, has rejected an employeeâ€™s claims for unpaid overtime against his employer on behalf of himself and a class of current and former employees. Muldrow v. Surrex Solutions Corp., Nos. D057995 & D058958 (Cal. Ct. App. Jan. 24, 2012). The Court found the employee was exempt from overtime pay under California Industrial Welfare Commission Wage Order No. 7-2001 and affirmed judgment in favor of the employer.
Shaw Valenza LLP • January 25, 2012
The California Supreme Court directed the Fourth District Court of Appeal to review a case involving whether "rounding" time clock entries is lawful under California law. Federal law permits rounding, and the California Division of Labor Standards Enforcement has permitted as a matter of policy, so long as the "rounding" evens out or favors the employee. A trial court recently ruled that a class action involving rounding could proceed against an employer, See's Candies. See's sought a writ in the Court of Appeal, which summarily denied the Petition. The Supreme Court, however, unanimously voted to Order the Court of Appeal to hear See's petition on the merits
Jackson Lewis P.C. • January 10, 2012
In a case of first impression, the California Court of Appeal has clarified the scope of an employerâ€™s obligation to pay reporting time and split shift premiums under the California Industrial Welfare Commissionâ€™s Wage Order No. 4-2001 (â€œWage Orderâ€). The Court ruled that an employee was not entitled to reporting time pay for attending scheduled meetings that ran shorter than expected because he worked at least half the scheduled time, even though the employee worked less than two hours. This is contrary to the long-held enforcement position of the California Division of Labor Standards Enforcement. The Court also held an employee was not entitled to split shift pay because the employeeâ€™s total compensation exceeded the minimum wages required under the Wage Order. Aleman v. AirTouch Cellular, No. B231142 (Cal. Ct. App. Dec. 21, 2011). Finally, the Court dismissed a second employeeâ€™s claims as barred by a prior release agreement with the employer.
Fisher & Phillips LLP • January 05, 2012
California law mandates that employers provide employees who work more than five hours with a 30-minute meal break prior to the sixth hour of work, and a second 30-minute meal period for employees who work more than 10 hours. Employees are also entitled to a 10-minute rest period for every four hours, or major portion thereof, worked. A recent court ruling held that these regulations are preempted by a federal law which covers motor carriers. Dilts v. Penske Logistics.
Jackson Lewis P.C. • January 05, 2012
Sidestepping its first opportunity to address Californiaâ€™s overtime exemption for administrative employees, the state Supreme Court has ruled that although the court of appeal misapplied the â€œadministrative/production worker dichotomy,â€ the case should be remanded for analysis under the applicable Industrial Welfare Commission wage order. In Harris v. Superior Court (Liberty Mutual), No. S156555 (Dec. 29, 2011), the unanimous Court reversed a determination that insurance adjusters were non-exempt production workers because â€œthe Court of Appeal misapplied the substantive law.â€
Shaw Valenza LLP • January 04, 2012
I posted about the Division of Labor Standards' Enforcement's template Notice here and about the FAQs here. The DLSE apparently has thought better of its requirement that even current employees receive a notice (because that plainly was not in the statute). So, the agency revised its FAQ's, here. Slightly concerned employers I spoke with ... please take note.
Ogletree Deakins • January 03, 2012
On December 29, 2011, the California Supreme Court issued its long-awaited decision in a case involving the application of the â€œadministrative/production dichotomyâ€ in determining if an employee meets the requirements for the administrative employee exemption from overtime under the California Wage Orders.
Shaw Valenza LLP • January 02, 2012
Here are some FAQs regarding the new notices that must be provided to employees "at the time of hire."
Shaw Valenza LLP • January 02, 2012
The Supreme Court issued a unanimous decision rejecting the lower court's interpretation of the "administrative exemption."
Jackson Lewis P.C. • January 02, 2012
The California Division of Labor Standards Enforcement has released a form notice that is compliant with the new California Wage Theft Prevention Act of 2011. Effective January 1, 2012, the Act requires employers to provide many new employees with written notice that details their rates of pay, employer name and address, workersâ€™ compensation carrier, and other information specified in the Act. Since Governor Jerry Brown signed the law in October, California employers have struggled to develop notices that are compliant.
Shaw Valenza LLP • December 27, 2011
The Court of Appeal issued a ruling that may change the way us employment lawyers advise clients. But WARNING, this decision is not yet final and cannot be relied upon just yet.
Fisher & Phillips LLP • December 23, 2011
A California appellate court has just handed down a major decision on reporting-time pay in California, limiting situations where such pay would be due, and rejecting an enforcement guideline used by the California Labor Commissioner. The court also clarified the law regarding split-shift premiums. Michael Aleman, et al v. AirTouch Cellular.
Shaw Valenza LLP • December 22, 2011
Employers operating in SF - couple of things to note.
Fisher & Phillips LLP • December 22, 2011
A recently-passed piece of California legislation that will impact employers is the Wage Theft Prevention Act of 2011 (WTPA), which takes effect January 1, 2012. This law adds a new section to the Labor Code and is similar to a law passed in New York this year.
Jackson Lewis P.C. • December 22, 2011
Nonresidents of California are entitled to overtime pay under California law for work performed in California, the U.S. Court of Appeals for the Ninth Circuit has ruled, following the California Supreme Courtâ€™s responses to its questions on state law. Sullivan v. Oracle Corp., 2011 U.S. App. LEXIS 24625 (9th Cir. Dec. 13, 2011). The Ninth Circuit reversed summary judgment in favor of the employer on claims for unpaid overtime under the California Labor Code (â€œLabor Codeâ€), as well as on claims under the California Unfair Competition Law (â€œUCLâ€), which were predicated on the Labor Code violations. However, the Court held that the UCL did not apply to alleged violations of the federal Fair Labor Standards Act occurring outside of California.
Shaw Valenza LLP • December 20, 2011
The Supreme Court is considering even more briefing in the Brinker case re meal and rest periods. So, they are going to delay the opinion past the normal 90 days from argument. Here is the order...
Ogletree Deakins • December 19, 2011
One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state. In today's mobile world that is a lot of folks, especially employees located near state borders.
Jackson Lewis P.C. • December 09, 2011
The required compensation levels for employees exempt from overtime under the California computer professional exemption will increase by 2.5 percent from the current levels beginning January 1, 2012, the California Department of Industrial Relations (DIR) has announced.
Jackson Lewis P.C. • December 09, 2011
San Franciscoâ€™s Health Care Security Ordinance has been amended to require more of certain employers with workers in the City and County of San Francisco. The amendments will take effect January 1, 2012.
Shaw Valenza LLP • November 21, 2011
Under Labor Code Section 515.5, some computer software employees are considered exempt if they meet certain duties and compensation criteria. The compensation rate is supposed to vary with the rate of inflation.
Shaw Valenza LLP • November 10, 2011
I am told there are lawyers who waited hours to get a seat at the California Supreme Court's hearing on Brinker v. Superior Court. It's called "Youtube." Look into it.
Shaw Valenza LLP • October 24, 2011
One of several employment laws recently signed by Governor Jerry Brown, AB 469 takes effect on January 1, 2012. Titled the â€œWage Theft Prevention Act of 2011,â€ AB 469 modified a number of current laws 10and created several new Labor Code provisions.
Shaw Valenza LLP • October 13, 2011
When I covered some of Governor Jerry Brown's last minute bill signings, I left out perhaps the most obnoxious new law. That's what I get for hurrying.
Shaw Valenza LLP • October 10, 2011
Governor Brown has mercifully vetoed many of the loony ill-conceived employment law bills that the legislature passed this term. But he signed AB 1396, which is going to impose a serious burden on employers who pay employees via commission.
Shaw Valenza LLP • October 05, 2011
The California Supreme Court will hear arguments in Brinker v. Superior Court (see a bunch of posts here) regarding employers' obligations to provide meal periods. Argument is November 8 in San Francisco. I'm so excited, I need a rest period. Docket is here.
Fisher & Phillips LLP • October 03, 2011
California's Sixth Appellate District recently issued a decision upholding an employer's right to modify the compensation terms of an at-will employment agreement where the employee never made a written protest to the modification and the employee continued to accept the modified compensation offered. Foust v. San Jose Construction Company, Inc.
Fisher & Phillips LLP • October 03, 2011
Employers continue to be challenged with claims from terminated employees who received payroll deductions for debts they owed the employer. In a recent case employees brought a collective action in a California federal court seeking remedies for violations of California law and the federal Fair Labor Standards Act (FLSA) for deductions taken from their final pay checks for debt balances. The federal court ruled in favor of the company on all claims.
Shaw Valenza LLP • August 22, 2011
Matthew Zelasko-Barrett graduated law school and obtained a job with Brayton-Purcell, a large, Marin County firm. Before passing the bar and becoming a licensed lawyer, he was designated a Law Clerk II; after admission he became an associate. After quitting, he decided to sue Brayton-Purcell, claiming he was "mis-classified" as exempt during his time as a Law Clerk II.
Ogletree Deakins • August 19, 2011
A unanimous California Supreme Court recently held that California-based employers must pay out-of-state resident employees pursuant to the more restrictive provisions of the California Labor Code even if these employees only visit the state on a limited, temporary basis. The unanimous decision held that the state's overtime laws were intended by the California legislature to apply broadly to "protect" workers visiting California (even temporarily); therefore, California's laws trump the laws of states in which employees actually reside and primarily work.
Jackson Lewis P.C. • August 17, 2011
Nonresidents of California are entitled to overtime pay under state law for work performed in California, the California Supreme Court has held, answering questions about California law at the request of the U.S. Court of Appeals for the Ninth Circuit. Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (Cal. 2011).
Shaw Valenza LLP • August 15, 2011
What counts as paid â€œvacationâ€ that vests as it is earned and cannot be forfeited under California law? The distinction between leave that is and is not deemed vacation is significant. The law generally requires payment of unpaid wages, including unused, earned vacation pay, on the employeeâ€™s termination date. Untimely payment of wages can result in significant â€œwaiting timeâ€ penalties under Labor Code Section 203.
Fisher & Phillips LLP • August 10, 2011
Almost five years ago, in April 2006, nearly 59,000 employees obtained class certification in a lawsuit claiming that Brinker Restaurant Group violated California labor laws by failing to ensure that its non-exempt employees took meal and rest breaks. In July of 2008, the appeals court vacated the class certification based upon a finding that employers need not ensure that meal and rest breaks are taken. The California Supreme Court then vacated the decision and granted review on October 22, 2008. Much to the chagrin of California employers and employees seeking clarity on the issue, the Supreme Court has yet to issue its ruling in Brinker Restaurant Group v. Superior Court.
Jackson Lewis P.C. • July 21, 2011
The California Court of Appeal has held that employees who work overnight shifts that begin on one day and conclude on the next, but which are not interrupted by unpaid, non-working periods, do not work â€œsplit shifts,â€ as defined in the applicable Industrial Welfare Commission Wage Order. Securitas Security Services USA, Inc. v. Superior Court (Holland), No. B227950 (Cal. Ct. App. July 7, 2011). As fact questions existed whether the employees, in other circumstances, had performed split shift work, the Court remanded the case to the trial court.
Shaw Valenza LLP • July 08, 2011
Under California's Wage Orders -
â€œSplit shiftâ€ means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.
And "when an employee works a split shift, one (1) hourâ€™s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment."
Constangy, Brooks, Smith & Prophete, LLP • July 08, 2011
While California is mired in a $25 billion budget deficit, and companies are leaving for greener, business-friendlier pastures like Arizona, Texas, Georgia and North Carolina, the California Supreme Court is doing its best to pile on the regulatory burdens that hurt this stateâ€™s ability to compete on a national and global scale. In Sullivan v. Oracle Corporation, the California Supreme Court held that non-resident employees who perform work in this state, even for periods as short as a single day, are protected by Californiaâ€™s overtime laws.
Fisher & Phillips LLP • July 06, 2011
On June 30, 2011, the California Supreme Court ruled that work performed in California by nonresident employees for California-based employers is covered by the California Labor Code and its unfair competition laws. That means that employees residing in states outside California but working (even occasionally) in California may bring lawsuits against their California employers for unfair competition based on violations of California's generous overtime requirements. This is not good news for employers.
Shaw Valenza LLP • July 05, 2011
Sullivan v. Oracle is a wage hour class action we addressed here. If you don't remember, you're forgiven. This was back in 2008. I had more and darker hair; Lehman Brothers was a functioning company. You could buy a Pontiac. Remember?
Fisher & Phillips LLP • July 05, 2011
California Industrial Welfare Commission (IWC) Wage Orders exempt from California's overtime-compensation requirement "any employee whose earnings exceed one and one-half (1 Â½ ) times the minimum wage if more than half of that employee's compensation represents commissions." State courts have looked to the Labor Code section that addresses automobile dealers, in defining "commissions," as: "compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount or value thereof." (Italics added.)
Fisher & Phillips LLP • July 05, 2011
California law regulates meal and rest periods, requiring employers to provide their employees an unpaid 30-minute meal period after working for five hours, and a second meal period after 10 hours, with a 10-minute rest period for each four hours of work or major fraction thereof. Employees required to work through their breaks are entitled to a premium payment subject to a limit each day.
Fisher & Phillips LLP • July 05, 2011
A recent California appellate decision precludes California employers from defining workweeks under a recurring work schedule that avoids payment of the "seventh day" premium. Seymore v. Metson Marine.
Franczek Radelet P.C • July 05, 2011
Do you have employees who visit California for business? If so, now may be a good time to brush up on California wage and hour law. On June 30, 2011, the California Supreme Court ruled that the California Labor Code's overtime provisions applied to three non-resident employees of Oracle Corporation who performed work within the state.
Ogletree Deakins • July 05, 2011
On June 30, 2011, a unanimous California Supreme Court ruled that California-based employers must pay out-of-state resident employees pursuant to the more restrictive provisions of the California Labor Code even if these employees visit the state on a limited, temporary basis. The unanimous decision held that the stateâ€™s overtime laws were intended by the California legislature to apply broadly to â€œprotectâ€ workers visiting California even temporarily and, therefore, this stateâ€™s laws trump the laws from the states in which employees actually reside and primarily work. Sullivan v. Oracle Corp., No. S170577, California Supreme Court (June 30, 2011).
Jackson Lewis P.C. • July 01, 2011
Reversing summary judgment for more than 2,000 unlicensed junior accountants in a class action lawsuit, the U.S. Court of Appeals for the Ninth Circuit (San Francisco) has held that the plaintiff-accountants were not â€œcategorically ineligibleâ€ to be exempt from overtime under Californiaâ€™s professional and administrative exemptions. Campbell v. PricewaterhouseCoopers, LLP, No. 09-16370 (9th Cir. June 15, 2011). The Court ruled the district court erred in determining the unlicensed accountants, who were required by law to work under the supervision of a licensed accountant, could never meet the requirements for exempt employees. The Court warned against categorically excluding entire classes of employees from overtime exemption analyses.
Shaw Valenza LLP • June 17, 2011
The definition of "commission" can mean the difference between an employee who is entitled to overtime pay and one who is exempt from overtime and other wage-hour laws. Both federal and California law exempt retail salespersons who earn at least 50% of their wages via commissions (along with other requirements). An incentive payment that does not qualify as a "commission" is not counted towards the 50% threshold.
Shaw Valenza LLP • April 19, 2011
We previously wrote about Seymore v. Metson Marine here. Then we wrote an article covering it and other new wage-hour cases here. This was the case in which the court held that the employer could not set a workweek to start on a day when the employees did not begin the week.
Fisher & Phillips LLP • April 06, 2011
Earlier this year, a case reinforced yet again the need for employers to pay close attention to the specific requirements of the California Labor Code â€“ this time, the itemized wage statement requirement in Labor Code section 226(a). Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement.
Fisher & Phillips LLP • April 06, 2011
The Labor Code gives aggrieved employees the right to file a claim for unpaid wages and other similar violations with the Division of Labor Standards Enforcement. These claims are decided by a deputy labor commissioner in an administrative hearing, sometimes called a "Berman" hearing. The process is more streamlined than a proceeding in court, and is "designed to provide a speedy, informal, and affordable method of resolving wage claims." If either party does not agree with the deputy labor commissioner's decision, they can appeal to the superior court in a process called a "trial de novo."
Fisher & Phillips LLP • April 06, 2011
A California appellate court ruled that Labor Code section 515 does not outlaw clear wage agreements that provide for salaries that include fixed amounts of overtime. Arechiga v. Dolores Press, Inc.
Ogletree Deakins • March 08, 2011
In the past few weeks, appellate courts in California have issued a number of opinions in wage and hour cases, which have been helpful to employers. As all too many of our clients are aware, we have seen an explosion in the number of such cases filed in our trial courts. And, as these cases make their way through the litigation process, we also are seeing this subject predominate at the appellate level. While it seems we mostly bring you bad news on this topic, in this issue we recap four cases that will be helpful to employers as they mount their defenses to wage and hour claims.
Shaw Valenza LLP • February 28, 2011
Did you know the Labor Code permits employers to recover attorney's fees when the employer wins certain wage claims? It's true.
Jackson Lewis P.C. • February 25, 2011
A California employer did not owe overtime to an employee because it had entered into an explicit mutual wage agreement that provided for base compensation and overtime in one lump sum, the California Court of Appeal has ruled. Arechiga v. Dolores Press, Inc., No. B218171 (Cal. Ct. App. Feb. 7, 2011). Affirming the dismissal of the employeeâ€™s claim, the Court upheld the validity of explicit mutual wage agreements for non-exempt employees under California law.
Shaw Valenza LLP • February 24, 2011
The Court of Appeal addressed California's "reporting time" pay requirement in the context of discharge.
Shaw Valenza LLP • February 24, 2011
The Court of Appeal in UPS v. Superior Court decided that when an employee claims to have been denied both meal AND rest periods in a single day, s/he may recover two of the one-hour penalties made available under Labor Code Section 227.6.
Shaw Valenza LLP • February 24, 2011
While the world waits for the California Supreme Court to issue the fabled Brinker decision on meal periods, the courts of appeal continue to find that employers need only make available meal periods, and not force them.
Shaw Valenza LLP • January 27, 2011
So, several employees of Heritage Residential Care, Inc. lacked social security numbers. Naturally, the employer immediately fired them.
Fisher & Phillips LLP • January 05, 2011
Employers with a California presence already know that they need to monitor their wage and hour practices carefully. Now that many employers have reached compliance in areas such as meal- and rest-period laws, plaintiff attorneys are on the prowl for new battlegrounds for litigation. For example, two recent California appellate decisions added yet another hurdle for California employers to leap and additional fuel for employees (and their lawyers) looking to file class actions.
Fisher & Phillips LLP • January 05, 2011
On September 30, 2010, Gov. Arnold Schwarzenegger signed a bill providing an additional exemption to the current meal-period requirements. Existing law requires that all employees in California, with certain exceptions, receive a meal break of at least 30 minutes beginning before the fifth hour of work. The new exemption will apply to employees in certain occupations or industries who are covered by collective bargaining agreements.
Shaw Valenza LLP • January 03, 2011
In the Golden State, most private employers must grapple with no fewer than six major sources of wage and hour laws when one considers statutory, regulatory, and case law in both the state and federal systems. The state Industrial Welfare Commission Wage Orders are part of this web of wage and hour laws and rules.
Shaw Valenza LLP • December 20, 2010
San Francisco has its own minimum wage law. It is indexed to inflation. It did not rise in 2010. However, it's rising as of 1/1/2011.
Shaw Valenza LLP • November 19, 2010
I know, sounds obvious. But folks were claiming that waiting time penalties, like meal period penalties, are a form of wage. They were making this argument to permit claims for waiting time penalties under California's unfair competition law, because that law has a four year statute of limitations.
Ogletree Deakins • November 10, 2010
Most employers with business operations in states outside of California are generally aware of the employment practices that can lead to collective actions under the federal Fair Labor Standards Act (FLSA). These include:
Shaw Valenza LLP • November 08, 2010
What does it mean to “provide” employees with required meal and rest breaks? That employers must “ensure” or “force” employees to take them, or simply make them “available”å to employees? While the law is relatively settled that employees need only be given the opportunity to take rest breaks, it is not clear whether this same standard applies to meal periods. Indeed, California employers eagerly await the California Supreme Court’s determination of this question in Brinker Restaurant v. Superior Court (Hohnbaum) and Brinkley v. Public Storage. In the interim, the Court of Appeal recently decided a case addressing the meal period issue, Hernandez v. Chipotle Mexican Grill, Inc.
Shaw Valenza LLP • October 29, 2010
Everyone is waiting for the California Supreme Court to issue its decision in Brinker or Brinkley or both regarding whether meal / rest periods must be ensured or merely provided under California law. Well, nearly everyone.
Fisher & Phillips LLP • October 04, 2010
Employees and their attorneys have good reason to be more cautious in filing certain wage claims against employers. If they lose, they could be ordered to pay an employer's defense costs and attorneys' fees. California Labor Code § 218.5 permits prevailing employers to recover their fees and costs for any "action brought for the nonpayment of wages.…"
Fisher & Phillips LLP • October 04, 2010
Most of us who know the work history of our ancestors appreciate the gains made over the past 100 years with regard to fewer hours of work, a higher standard of living, and the opportunity to enjoy family time. However, many employees and their advocates, and some judges, are promoting causes calculated to further help workers but which actually are job killers. This creeping activism is destroying business across the country and, if not checked, could lead to greater unemployment, lower wages, and increased homelessness.
Fisher & Phillips LLP • July 02, 2010
California wage/hour law is governed by the California Labor Code, the Industrial Welfare Commission's Wage Orders, and appellate or California Supreme Court decisions which interpret these laws. These laws are enforced by the California Labor Commissioner. Any employer doing business in California must be familiar with the Labor Commissioner's enforcement agency, the Division of Labor Standards Enforcement (DLSE). This article takes a closer look at an employer's dealings with the Labor Commissioner.
Fisher & Phillips LLP • June 22, 2010
Recently the California Supreme Court held that third-party merchants were not "employers" as defined by the Industrial Welfare Commission, in part because they did not control the conditions of employment for the subject agricultural employees (strawberry pickers), i.e., did not hire them, fire them, or even have a right to tell them what to do or direct their work. The practical effect in this litigation was that the employees could not obtain unpaid wages from third-party merchants after the uncontested employer became insolvent. Martinez v. Combs.
Shaw Valenza LLP • April 08, 2010
Although wage and hour litigation continues to keep California courts busy, employers receive much day-to-day guidance about administration of wage and hour issues not from court decisions, but from the Department of Labor Standards Enforcement (DLSE). This agency, part of the Department of Industrial Relations, enforces wage and hour requirements in the state. As part of this duty, the DLSE occasionally issues opinion letters interpreting provisions of California wage and hour law. These opinions are not binding on the courts, but are very instructive as to how the DLSE will rule on particular issues. In the past several months, the DLSE issued a number of important opinion letters, each of which is summarized below.
Fisher & Phillips LLP • April 05, 2010
Many employers question whether annual bonuses must be considered in overtime compensation. Although California law has more protective overtime laws than most states, it sticks with federal law with regard to what is included in the "regular rate" when calculating overtime. Federal law requires "all remuneration" to be included in the regular rate except for seven specified types of payments. Among these excludable payments are discretionary bonuses, gifts and payments in the nature of gifts on special occasions, contributions by the employer to certain welfare plans and payments made by the employer pursuant to certain profit-sharing, thrift and savings plans.
Fisher & Phillips LLP • April 05, 2010
In California, conditions of employment, including standards governing compensation, are set forth in the Wage Orders promulgated by the Industrial Welfare Commission. These Wage Orders are generally given legal effect to the extent that they are consistent with the California Labor Code. Unfortunately, many of these provisions go unheeded by employers despite the fact that they are published in the California Code of Regulations and have been in effect for many years.
Fisher & Phillips LLP • January 04, 2010
On November 28, 2009, the Division of Labor Standards Enforcement (DLSE) issued an opinion letter which should help shed some light on an area of the law which has long plagued California employers due to its ambiguity -- namely, under what circumstances may employers make deductions from exempt employees' salaries without running afoul of the law?
Shaw Valenza LLP • November 24, 2009
When it comes to properly paying employees, California law presents a minefield for the unwary employer. For example, wages must be paid in cash or in a form “negotiable and payable in cash” (e.g.., by check), without discount, within a specified time period after they are earned. Employees who quit or are terminated typically must be paid their final wages on their last day of employment or significant penalties may accrue. Once earned, wages cannot be forfeited, and it is illegal for an employer to recoup or collect from employees any part of wages already paid. Private agreements circumventing these rules are strictly prohibited.
Shaw Valenza LLP • November 24, 2009
Some people leave their jobs at the end of the day and do not even think about work until the next shift begins. Then, there is the rest of us. California's wage and hour laws are tricky, even as applied to workers on a traditional 9-5 schedule. The rules that apply to commuting, working at home, on-call time, and other incidental work performed during what is otherwise "free" time, vex even the wonkiest of employment lawyers.
Shaw Valenza LLP • October 23, 2009
Employers looking to gain a foothold in San Francisco should carefully survey the terrain. San Francisco businesses are subject to local employment ordinances in addition to the many federal and state requirements. Even small businesses must comply with the host of mandates that do not apply outside the county borders. Here are the principal San Francisco ordinances that generally govern private-sector employers. Employers in specific industries may be subject to additional or different requirements.
Fisher & Phillips LLP • October 01, 2009
An employer recently found itself in the unenviable position of defending a lawsuit brought by a former sales employee, who alleged that the employer owed him a commission of 20% on a $12 million deal he brokered with AT&T. After three and a half years of litigation, an appellate court ruled in the employer's favor because the salesperson's employment agreement contained two critical provisions. Would your company's commission plan pass the same test? Nein v. HostPro, Inc.
Fisher & Phillips LLP • October 01, 2009
California employers continue to learn the hard lessons resulting from the failure to adequately keep time records or monitor off-the-clock activities. Timekeeping errors that occur systematically and continue unchecked can accumulate hundreds of thousands of dollars in liability, not to mention potential penalties and attorneys' fees in defending class action complaints addressing such deficiencies. The failure to keep accurate time records almost certainly is the direct result of an employer's failure to train, retain, and monitor effective first line supervisors.
Shaw Valenza LLP • August 17, 2009
Managers generally may do their jobs without fear of personal liability for employees' claims under California law. But a recent Ninth Circuit decision is a reminder to managers that they may not be entirely immune to claims for unpaid wages.
Shaw Valenza LLP • August 04, 2009
With summer in full swing, many employees are taking vacations with their families. Meanwhile, Human Resources managers are checking leave balances. As the Court of Appeal recently reiterated in the case of Owen v. Macy’s, the law does not require that an employer provide its employees with any paid vacation. Any right to vacation benefits must come from the employer’s policies, an employment contract, or a collective bargaining agreement.
Fisher & Phillips LLP • July 01, 2009
Most employers doing business in California are familiar with wage claims brought by current or former employees before the Division of Labor Standards Enforcement (DLSE), which is the state agency charged with enforcing the California Labor Code and the state's wage-hour laws and regulations. This article highlights the rules and procedures in defending a wage claim in California.
Shaw Valenza LLP • April 21, 2009
Maybe like your morning, the controversy over tip pooling perked up over a cup of coffee. A little over a year ago, a court awarded over $85 million dollars to Starbucks “baristas,” finding a Starbucks tip pooling policy allowed shift supervisors to unlawfully share in the pooled tips. While many employers may be familiar with other wage and hour issues, such as overtime and meal and rest breaks, tip pooling is one of those issues that has gone undisturbed for many years. Now that the sleeping giant is awake, employers in applicable industries should become fully aware of the current rules in California governing tip pooling.
Fisher & Phillips LLP • April 06, 2009
Whether the economy is still declining or on the rebound, one thing is clear: the storm of wage & hour litigation continues to buffet employers, an increasing trend that began long before the current recession and plague of unemployment in California. Two key historical facts have contributed significantly to the rise of such litigation in California beginning this decade.
Fisher & Phillips LLP • April 06, 2009
As we reported in our last issue (California Wage/Hour Update, No. 1, January 2009), the U.S. Court of Appeals for the 9th Circuit recently ruled that the overtime provisions of California's Labor Code apply to work performed in California by non-resident employees. Sullivan v. Oracle Corporation.
Shaw Valenza LLP • January 30, 2009
Our economic recession has wrought hiring freezes, lay offs, business closures, etc. Both employers and employees are suffering. To keep afloat and perhaps avoid layoffs, employers are seeking creative ways to save money and conduct business more efficiently. One option is to reduce employer liability for payment of overtime. The adoption of an “alternative workweek” may be a means to accomplish this goal.
Fisher & Phillips LLP • January 26, 2009
A new San Francisco Ordinance went into effect January 20. It requires employers with 20 or more employees (regardless of where they are located) to provide incentives for their San Francisco employees to use public transportation. The San Francisco based employees must work at least 10 hours per week to qualify.
Fisher & Phillips LLP • January 06, 2009
A federal appeals court recently handed down a significant decision addressing the application of the overtime provisions of California's Labor Code to work performed in California by non-resident employees. The case has important consequences for employers who hire non-residents to perform work in California Sullivan v. Oracle Corporation.
Fisher & Phillips LLP • January 06, 2009
In our last issue we looked at some of the most important timekeeping problems that employers should be aware of, in order to keep from being engulfed in the virtual tsunami of overtime claims being filed in recent years.
Fisher & Phillips LLP • December 09, 2008
On December 3, 2008, in a long-awaited decision, the California Court of Appeals for the Fourth Appellate District addressed the issue of punitive damages in the context of a wage-and-hour lawsuit. This case represents a victory for employers in an area where the laws and penalties in California tend to be draconian.
Fisher & Phillips LLP • December 04, 2008
In what may become a trend statewide, or even nationwide, the San Francisco City Council passed what is called the Health Care Security Ordinance (HCSO). The purpose of the ordinance is to require employers to pay certain monetary amounts for health care, based on the number of persons employed.
Fisher & Phillips LLP • November 05, 2008
Last July we reported on Brinker Restaurant Corp. v. Superior Court, an employer-friendly decision by a California Appeals court which addressed the legal standards under California's laws on meals and rest periods for employees.
Fisher & Phillips LLP • October 09, 2008
Last week Gov. Arnold Schwarzenegger approved an amendment substantially changing the law concerning overtime pay for certain computer software professionals. The law amends the California Labor Code and restores the overtime exemption for qualifying computer programmers, analysts and engineers who are paid a monthly salary equivalent to at least $75,000 per year, or who continue to be paid at least $36 per hour for all hours worked. The bill was passed as urgency legislation and took effect on September 30, 2008.
Fisher & Phillips LLP • October 06, 2008
Employers in California are still being pummeled with claims by current and former employees seeking compensation for allegedly unpaid overtime. Employers should tackle this problem by conducting self-audits and improving internal procedures for eliminating overtime complaints. The fact is, many overtime claims have identifiable causes and are completely avoidable.
Fisher & Phillips LLP • October 03, 2008
There is a California law which costs employers millions of dollars each year, all of which could be avoided with almost no effort on the employer's part – no lengthy training, no notices to post, and no changes to employee handbooks.
Ogletree Deakins • August 19, 2008
The California Court of Appeal recently overturned a class certification order in a lawsuit brought by a group of hourly, non-exempt employees who claimed that they were denied rest and meal periods and were forced to work off the clock. In a key ruling, the court held that employers “need not ensure meal breaks are actually taken, but need only make them available.” The court also held that the employer’s practice of providing an “early lunch” within the first hour of an employee’s shift did not violate California law, even where the employee might then have to work in excess of five consecutive hours without an additional meal period. The court found such “rolling five-hour” meal periods to be inconsistent with the plain meaning of the Labor Code. In addition, the court found that employers are liable for off-the-clock work only if they “knew or should have known” employees were working.
Ogletree Deakins • August 19, 2008
On July 22, Governor Arnold Schwarzenegger signed into law Senate Bill 940 which will change payroll practices applicable to "temporary service" workers. Under the new law, which will go into effect in January of next year, temporary service agencies must pay temps every week instead of every other week. The law also requires agencies to pay temps daily when they work for a client on a “day-to-day basis.” The new legislation creates another exception for workers on an assignment “for over 90 consecutive calendar days.” The weekly payment requirement does not apply to these employees unless their employers pay them weekly.
Shaw Valenza LLP • August 13, 2008
The California Court of Appeal recently rendered an opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) which addresses several heavily litigated meal/rest period issues. While employers obviously welcomed the clarification provided by the ruling, lively celebration may be a bit premature. First, the case may find its way to the California Supreme Court. If the Supreme Court grants review as many anticipate, the law pre-Brinker will apply until the high Court rules. Additionally, the Legislature could decide to take a stand on Brinker as part of the continued budget stalemate. In that case, we may end up with compromise legislation and an unanticipated new law.
Fisher & Phillips LLP • August 01, 2008
A California appellate court has handed down a long-awaited decision addressing legal standards for employee claims including meal and rest period violations. The court also overturned legal rulings regarding the employees' "off-the-clock" claims.
Shaw Valenza LLP • July 28, 2008
The Court of Appeal's opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), ___ DJAR ____ (Jul. 22, 2008), addresses several heavily litigated issues regarding meal and rest period claims. If the decision withstands an anticipated petition for review to the Supreme Court, the court's opinion will sharply curtail class action litigation over alleged meal and rest period violations.
Fisher & Phillips LLP • July 03, 2008
In March a California court awarded more than $105 million to Starbucks baristas due to the company's practice of permitting supervisors to share the tips. The case is significant to all California employers that have tip-sharing arrangements.
Fisher & Phillips LLP • July 02, 2008
California law sets out basic overtime requirements for non-exempt employees in California. Among other things, the law requires an employer to pay an employee time and one-half of the employee's regular rate of pay for both 1) more than 8 hours of work in one workday, and2) more than 40 hours of work in any workweek. A double time premium is required for hours in excess of 12 in a work day, or in excess of 8 hours on the seventh consecutive day of work in a work week.
Ogletree Deakins • July 01, 2008
Employers sued in California wage and hour class actions are all too familiar with the State’s “multiplier effect.” What is the California “multiplier effect,” you ask? Simply put, it is a small wage payment violation (e.g., for non-payment of overtime hours or off-the-clock work), that can trigger a range of penalties under the California Labor Code far exceeding the value of the original unpaid wage amount. In wage and hour class actions, minor wage violations can cost employers millions.
Shaw Valenza LLP • May 06, 2008
Effective Jan. 1, 2000, Assembly Bill 60 implemented a number of changes to California's wage and hour laws. Many employers and their lawyers focused on the statutory restoration of daily overtime pay, which the Industrial Welfare Commission previously had abolished in several of its Wage Orders. As it turned out, though, AB 60's sleeper issue was the relatively small section of the law devoted to meal periods. AB 60 codified existing regulations mandating meal periods. However, the Legislature determined that employers were not following the rules because there were no financial consequences. So, AB 60 included a requirement that employers pay one hour's wages to employees who were not given a timely meal period in accordance with the law.
Shaw Valenza LLP • April 07, 2008
Here is something to ponder as you enjoy your next beverage from Starbucks: How many venti, half-caf-half-soy-no-foam-latte-whips does it take to generate $87 million in tips over a seven-year period? It might take more than one refill for you to do that math. But wait, there's more. Consider that the recent and widely reported $100 million-plus award to about 100,000 Starbucks "baristas" compensates them only for a portion of the total tips customers paid (plus interest). That is, just a fraction of what must have been hundreds of millions in total tips wrongfully distributed to shift supervisors. The award, one of the largest reported employment law verdicts, is striking not only because of its sheer size, but also because it is based on optional "gratuities" that are paid by customers rather than the employer.
Fisher & Phillips LLP • April 02, 2008
In California, unless specifically exempted, an employee is presumed to be non-exempt and subject to the provisions of the applicable Wage Order. Perhaps the most frequently mentioned exemptions are the "white collar" exemptions involving executive, professional, and administrative occupations. A white-collar exemption exempts an employee from entitlements under many sections of the Wage Order, including meal & rest periods, recordkeeping, and the minimum wage and overtime provisions.
Shaw Valenza LLP • March 25, 2008
Commissions and bonuses are forms of "wages" in California. The Labor Code imposes on employers a number of obligations regarding payment of wages. For example, wages must be paid within a specified time period after they are earned. Employees who quit or are terminated typically must be paid their final wages on their last day of employment or penalties may accrue. Wages must be included in the "regular rate" of pay, which is used to calculate overtime. They also must be detailed on the "wage statement" that is furnished employees with every paycheck.
Shaw Valenza LLP • January 24, 2008
California's wage and hour laws are more detailed than any other state's. To facilitate education about the myriad requirements, the Legislature has included at least one substantial penalty for each failure to abide. So, employers must be cautious before deviating from the letter of the law.
Fisher & Phillips LLP • January 18, 2008
California employers are increasingly being challenged on whether they properly compensate and reimburse employees for usage of the employee's money or property in the course and scope of the employee's employment. Courts continuously acknowledge the California Legislature's intent that employers should not pass the cost of doing business onto employees such that the employees bear losses or incur expenses in conjunction with their employment.
Ogletree Deakins • December 18, 2007
As the New Year approaches, California employers should be mindful of an important change that will take effect on January 1, 2008, relating to information that can be listed on employee pay statements. Under California Labor Code section 226, employers must include certain itemized information on each employee’s pay statement. (This information must be provided separately for each pay period when the wages are paid by personal check or cash.)
Fisher & Phillips LLP • November 08, 2007
Effective January 1, 2008, the California Minimum Wage will increase from $7.50 to $8.00 per hour, a 6.7% increase. This increase will trigger several automatic changes in your minimum-compensation requirements.
Shaw Valenza LLP • October 25, 2007
The California Supreme Court decided earlier this year, in Murphy v. Kenneth Cole Productions, that the one-hour premium employees receive for violation of meal break or rest period laws is a wage and not a penalty. Because the statute of limitations for unpaid wages is three years (or four years under an unfair competition theory), and the statute of limitations for penalties is only one year, Murphy means that multi-million class actions against state-wide employers are potentially three times more lucrative for plaintiffs and their lawyers. As a result, the plaintiffs’ bar continues enthusiastically to file class actions alleging violations of the meal and break laws.
Shaw Valenza LLP • August 17, 2007
One thing is clear about California wage and hour laws: The rules governing law firms (and all businesses) in California are too numerous to be summarized in just one column. The first installment on this topic ran on July 27, 2007 and is available online at www.dailyjournal.com. In that piece, I discussed potential pitfalls, such as mis-classification of employees as independent contractors or "exempt" employees, minimum wage and overtime laws, independent contractor status, exemptions from overtime, payroll practices and deductions from paychecks. If those topics are not complex and confusing enough, there are many others applicable to California employees.
Shaw Valenza LLP • July 31, 2007
When Shakespeare wrote in Henry IV, "Uneasy lies the head that wears a crown," he could have been describing law firm managing partners. Client development and satisfaction, billable hours, expense control, office leases, hiring and retaining associates and staff, fierce competition, oh, and the practice of law, are just a few of the challenges facing the lawyer who accepts the responsibility of running a law firm or office.
Shaw Valenza LLP • May 08, 2007
California employers must furnish employees with both rest periods, which are paid, and meal periods, which are not paid. These requirements first appeared in the Industrial Welfare Commission's Wage Orders in 1916. But in 2000, the Legislature imposed on employers significant financial consequences for failure to comply with rest and meal period laws.
Fisher & Phillips LLP • April 20, 2007
The California Supreme Court has sent a shockwave through the California business community by ruling that premium pay issued to employees under California Labor Code section 226.7, to compensate them for missed meal and rest periods carries a three-year statute of limitations as opposed to a one-year statute of limitations.
Shaw Valenza LLP • April 17, 2007
California has a narrow exception to the general rules on overtime pay with regard to alternative workweeks.
Shaw Valenza LLP • March 29, 2007
It's been difficult for California employers to determine who is and who isn't exempt from overtime and minimum wage requirements; this article helps you sort it all out.