Total Articles: 254
Jackson Lewis P.C. • November 27, 2018
Since passing the California Fair Pay Act (“CFPA”) on October 6, 2015, California has remained a trailblazer in its efforts to address and decrease gender pay inequity. The CFPA requires all employers pay employees performing “substantially similar work” the same wage regardless of gender, ethnicity or race. The CFPA also requires employers to provide the pay scale for a position to an applicant who makes a reasonable request for it, prohibits employers from requesting an applicant’s prior salary history and from relying on an applicant’s salary history alone to justify a disparity in compensation “based on sex, race or ethnicity.”
Littler Mendelson, P.C. • November 25, 2018
A California court recently issued a decision clarifying when certain commuting time does not constitute work time under state law. In Hernandez v. Pacific Bell Telephone Company, the California Court of Appeal, Third Appellate District, held that an employer's provision of a company vehicle to employees to use in traveling from their homes to their first customer appointments of the day and home from the last appointments of the day did not transform commute time into "hours worked." This decision should come as welcome news to California employers that provide company vehicles for voluntary use.
Jackson Lewis P.C. • November 05, 2018
On September 20, 2018, California Governor Jerry Brown signed into law Assembly Bill 2605. This new law provides that unionized employees at petroleum facilities who hold safety-sensitive positions are exempt from the requirement that employees be relieved of all duties during rest periods. The bill went into effect immediately and will remain in effect until January 1, 2021 with the ability to be extended.
Fisher Phillips • October 31, 2018
As we have covered extensively, the California Supreme Court dropped a proverbial bomb earlier this year in the Dynamex case when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors. A few days ago, a California Court of Appeal held that the new test is limited to claims arising under the California Wage Orders, and that other claims continue to be governed by the prior (and more employer-friendly) standard known as the Borello test. This holding, if it stands, is good news for employers. However, it’s not all treats for employers on this Halloween. The new case has a few tricks of its own, as the good news appears to be tempered by some other less-favorable positions.
Ogletree Deakins • October 31, 2018
On October 1, 2018, San Francisco’s amendments to its Fair Chance Ordinance (FCO) took effect. The FCO is San Francisco’s “ban the box” equivalent that regulates employers’ use of applicants’ and employees’ arrest and conviction information.
Ogletree Deakins • August 06, 2018
Many California employers round employees’ clock-in and clock-out times to the closest quarter hour, tenth of an hour, or five-minute interval. This practice is commonly referred to as “rounding.” On June 25, 2018, California’s Second District Court of Appeal upheld an employer’s rounding system in AHMC Healthcare, Inc. v. Superior Court of Los Angeles County, No. B285655 (June 25, 2018). The decision reaffirms the Ninth Circuit Court of Appeals’ 2016 ruling on the subject and expands on the criteria used to evaluate whether a rounding policy is neutral in practice, and thus lawful.
XpertHR • August 05, 2018
California law requires that employees be relieved of all duty during meal breaks. As a result, an employer typically may not require employees to remain on the premises.
California employers must track small amounts of regularly occurring work time - even as short as four to 10 additional minutes each day - and pay employees for that time, according to the California Supreme Court.
Jackson Lewis P.C. • July 29, 2018
California has enacted new legislation aimed at clarifying its law banning an employer from inquiring about a job applicant’s salary history information
Fisher Phillips • July 27, 2018
Today, the California Supreme Court issued its ruling in Troester v. Starbucks Corporation, and departed from federal law’s more employer-friendly version of the de minimis rule, which it characterized as stuck in the “industrial world.” In holding that Starbucks Corporation must compensate hourly employees for off-the-clock work that occurs on a daily basis and generally takes four to ten minutes after the employee clocks out at the end of their shift, the California Justices announced they were ensuring California law was in line with the modern technologies that have altered our daily lives. De minimis means something is too minor or trivial to take into account, and the Court clarified what is trivial and what is not.
Ogletree Deakins • July 27, 2018
On July 26, 2018, the Supreme Court of California ruled that the state’s wage and hour rules and regulations have not adopted the Fair Labor Standards Act’s de minimis doctrine and that the de minimis rule does not apply to a wage and hour claim brought under a state wage order. The de minimis rule permits employers to disregard “insubstantial or insignificant periods of time beyond the scheduled working hours” when recording an employee’s hours worked for purposes of compensation.
Fisher Phillips • July 25, 2018
s many of you will recall from last year, Governor Brown signed legislation to prevent employers from asking about or relying on salary history information when making hiring decisions. That legislation, Assembly Bill 168 (Eggman) went into effect on January 1, 2018. Check out our recap of that bill here.
FordHarrison LLP • July 23, 2018
Executive Summary: Under California law, employers are required to pay employees for “all hours worked” when subject to the employer’s “control.” This raises the question: if an employer uses a timekeeping system that automatically rounds employee time punches up or down to the nearest quarter hour, is that lawful? The California Court of Appeals recently said “yes”—depending upon whether the rounding policy and practice are both neutral.
Carothers DiSante & Freudenberger LLP • July 20, 2018
Today, the Ninth Circuit issued its opinion in Rodriguez v. Taco Bell Corp., upholding the district court’s grant of summary judgment in favor of Taco Bell on class claims for alleged meal break violations. In this case, Taco Bell authorized and permitted employees to take meal breaks during which they were relieved of duty and free to leave the premises. However, Taco Bell offered employees the option of purchasing a discounted meal at Taco Bell, in which case they had to remain on site to eat it (in order to prevent theft/abuse associated with employees bringing discounted food to third parties outside the restaurant). Because no good deed ever goes unpunished in California, a class action lawsuit was filed against Taco Bell alleging that their practices violated California law by denying employees lawful meal breaks.
Ogletree Deakins • July 17, 2018
California’s meal and rest break rules are extremely technical and nuanced—and a failure to properly comply with them can result in penalties. Here are answers to six frequently asked questions (FAQs) regarding compliance with this intricate area of California labor and employment law.
Ogletree Deakins • July 10, 2018
On July 1, 2018, a number of localities in California saw their minimum wages increase. The chart below summarizes locality mid-2018 minimum wage increases, as well as Berkeley’s impending minimum wage increase, which will occur on October 1, 2018. Note that California employers are prohibited from paying a lesser cash wage payment to tipped employees and offsetting their minimum wage obligations with a tip credit.
Carothers DiSante & Freudenberger LLP • July 08, 2018
Whether you celebrated the Fourth of July with fireworks, hot dogs, hamburgers, or reciting the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness"), remember that many California city and local governments increased the minimum wage hourly pay requirements on July 1, 2018.
Jackson Lewis P.C. • June 21, 2018
It’s summertime in the City of Santa Monica and with sunny days and cool ocean breezes also comes an increase in the minimum wage commencing on July 1, 2018. Each year on July 1, Santa Monica employers must comply with the City’s minimum wage law, which was enacted in 2016 and currently runs through 2021. On July 1, 2018, Santa Monica’s new minimum wage will increase to $12 per hour for employers with 25 or fewer employees; to $13.25 per hour for employers with 26 or more employees; and $16.10 per hour for hotel workers.
Littler Mendelson, P.C. • June 19, 2018
In this podcast, Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, consider the compliance twists and turns of California’s salary history ban, which took effect on January 1, 2018. They look at if and how employers can consider salary history when making employment and salary decisions, even when that pay history has been voluntarily disclosed by applicants. Bruce and Corinn also discuss how the law impacts employers that do not maintain physical locations in the Golden State, and how employers may need to adjust their application and hiring protocols to comply with the new restrictions.
Littler Mendelson, P.C. • June 11, 2018
The California Supreme Court’s adoption of a strict ABC test for purposes of the wage orders is likely to cause significant problems for California businesses that use independent contractors. Of particular concern is the “B” prong of the test and the contours of the putative employer’s business. While at present the ABC test applies only to the wage orders, which means that only non-exempt employees are subject, businesses may find it difficult to implement the ABC test without implicating other aspects of the relationship, such as taxes or workers’ compensation, such that conversion for all purposes may be necessary. Nonetheless, there are many unresolved issues, and it remains to be seen how adoption of the ABC test will play out in California.
Littler Mendelson, P.C. • May 15, 2018
On May 7, 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) published revised rules concerning the city’s generous Paid Sick Leave Ordinance (PSLO). The new rules come more than 10 years after the original groundbreaking rules were published in 2007. In the interim, a statewide paid sick leave law was created,1 effective July 2015,2 and the San Francisco ordinance was amended, effective January 2017.3 Aside from a handful of changes, the final substantive PSLO rules mirror the rules proposed in mid-March. Below we discuss the more notable new rules.
Ogletree Deakins • May 10, 2018
On April 3, 2018, San Francisco amended its Fair Chance Ordinance. The amended ordinance, which will take effect on October 1, 2018, will significantly impact employers that employ, or seek to employ, individuals to work eight hours or more per week in San Francisco. As with the existing ordinance, the amended ordinance will apply to employers that employ full-time, part-time, temporary, seasonal, contract, contingent, and commission-based employees. The amended ordinance, however, will dramatically increase the number of employers to which it applies. While the existing ordinance applies to employers that employ 20 or more employees, the amended ordinance will apply to employers that employ as few as 5 employees worldwide. The amended ordinance will also apply to job placement agencies, referral agencies, and other employment agencies, as well as city contractors and subcontractors.
Littler Mendelson, P.C. • April 24, 2018
In 2010, Massachusetts enacted the Criminal Offender Record Information (CORI) Reform Act, which includes a “ban-the-box” component. Among other things, the law prohibits an employer from requiring an applicant to check a box if he or she has a criminal history.1 The law also prohibits an employer from requiring an applicant (or employee) to disclose the following specific types of criminal information: (i) arrests that did not result in a conviction; (ii) first convictions for certain misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace); and (iii) convictions for misdemeanors where the date of the conviction or completion of incarceration occurred five or more years from the date of the application, unless there was an intervening conviction.2
Ogletree Deakins • March 25, 2018
For decades, many employers across California relied upon established federal law governing the calculation of overtime compensation on bonuses. Under federal law, the same set of rules apply to flat sum bonuses (i.e., set bonus amounts that cannot increase with additional productivity or employee effort) and other bonuses.
Littler Mendelson, P.C. • March 12, 2018
The California Supreme Court recently decided the question of how an employee’s overtime pay rate should be calculated when the employee has earned a flat sum bonus during a single pay period.1 In Alvarado v. Dart Container Corp. of California, there was no dispute that the bonus needed to be factored into the employee’s regular rate of pay. The question addressed by the court was whether the divisor for purposes of calculating the per-hour value of the bonus should be (1) the number of hours the employee actually worked during the pay period, including overtime hours; (2) the number of non-overtime hours the employee worked during the pay period; or (3) the number of non-overtime hours that exist in the pay period, regardless of the number of hours the employee actually worked.
Jackson Lewis P.C. • March 11, 2018
The California Supreme Court has held that, under state law, when an employee earns a flat sum bonus during a pay period, the overtime pay rate will be calculated using the actual number of non-overtime hours worked by the employee during the pay period. Alvarado v. Dart Container Corp., 2018 Cal. LEXIS 1123 (Cal. Mar. 5, 2018).
FordHarrison LLP • March 07, 2018
Executive Summary: On March 5, 2018, the California Supreme Court issued a ruling clarifying how employers must handle flat-sum bonuses (i.e., additional compensation that does not change depending on the number of hours worked by an employee) in the calculation of overtime. Under this ruling, an employer must calculate a non-exempt employee’s additional overtime by dividing the amount of the flat-sum bonus by the actual number of non-overtime hours worked by the employee; then multiplying that per-hour value by 1.5 (or 2, depending on the applicable multiplier to use) and by the number of overtime hours worked. The ruling clarifies an important technical aspect of overtime calculations and upends many employers’ previous understanding of what the law requires. Although this decision is limited to flat-sum bonuses and does not apply to other forms of non-hourly compensation, employers should promptly have their incentive/bonus compensation plans reviewed for compliance.
Fisher Phillips • March 05, 2018
In a unanimous decision, the California Supreme Court today issued a ruling that will have far-reaching effects for employers who pay employees a flat rate bonus and overtime. Specifically, the court ruled that when calculating overtime in pay periods in which an employee earns a flat rate bonus, employers must divide the total compensation earned in a pay period by only the non-overtime hours worked by an employee.
Littler Mendelson, P.C. • January 04, 2018
Dear Littler: We need to hire some key personnel for our new tech company. We intend to offer them equity in the enterprise as compensation. The equity should be very valuable in the long run, and the deal we have in mind is reasonable for our industry. But we figured we should double-check with a lawyer first: this plan is legal, right?
Ogletree Deakins • January 03, 2018
California's minimum wage rate increased on January 1, 2018, to $11.00 per hour for businesses employing 26 or more employees and $10.50 per hour for those with 25 or fewer employees. The increase is a result of California Senate Bill 3, which was signed into law in 2016. The law will increase California’s minimum wage to $15 per hour by 2023. Thereafter, the minimum wage will change based on cost of living increases.
Jackson Lewis P.C. • December 11, 2017
In November 2017, the California Labor Commissioner’s office, Division of Labor Standards Enforcement (“DLSE”), published updated guidance on employer provided paid 10-minute rest breaks.
Jackson Lewis P.C. • November 12, 2017
Beginning with contracts entered into on or after January 1, 2018, direct (general) contractors in California will be held jointly liable for their subcontractors’ unpaid employee wages, fringe benefit or other benefit payments or contributions under Assembly Bill 1701, signed into law by Governor Jerry Brown on October 14th. This joint liability requirement is codified in Labor Code Section 218.7.
Jackson Lewis P.C. • September 15, 2017
California’s legislature is close to passing three bills to expand the state’s fair pay laws. The bills, introduced in early 2017, were designed to expand upon, or clarify, the amended California Fair Pay Act (CFPA).
Ogletree Deakins • August 02, 2017
On June 30, 2017, San Francisco Mayor Ed Lee signed the city’s new Lactation in the Workplace Ordinance. The ordinance will take effect January 1, 2018, and imposes lactation accommodation requirements that go beyond those that federal and California law currently impose.
Ogletree Deakins • August 01, 2017
On July 19, 2017, San Francisco became the latest jurisdiction to enact a law banning employers from asking job applicants about their salary histories. The San Francisco “Parity in Pay” Ordinance will become effective on July 1, 2018. The city will begin assessing penalties for noncompliance on July 1, 2019.
Jackson Lewis P.C. • July 27, 2017
The City of San Francisco (SF) is the latest governmental entity to join the trend towards prohibiting employers from asking job seekers about current or prior salary or wage rate or pegging starting pay to prior pay. The SF Ordinance is based on the following premise:
Littler Mendelson, P.C. • July 21, 2017
Under current California law, employers may ask job applicants about their wages in current or former jobs. A new ordinance in San Francisco, however, will make such inquiries illegal.
Littler Mendelson, P.C. • July 21, 2017
On July 19, 2017, Mayor Ed Lee signed an ordinance that will significantly affect the hiring practices of San Francisco employers. When Ordinance No. 170350 becomes operative on July 1, 2018, it will be illegal for employers to inquire about a job applicant’s salary history or to provide such information about current or former employees.1
Fisher Phillips • July 21, 2017
Joining a growing list of state and local governments, San Francisco Mayor Ed Lee today signed an ordinance which will ban employers from asking job applicants about their salary histories. The new ordinance will go into effect on July 1, 2018.
Fisher Phillips • July 21, 2017
The San Francisco Board of Supervisors has just added two new employment ordinances to the burgeoning list of employment-related ordinances in the City by the Bay. First, the Parity in Pay Ordinance prohibits employers from inquiring about an applicant’s salary history.
Jackson Lewis P.C. • July 13, 2017
On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance” (“Ordinance”), increasing protections for nursing mothers working in San Francisco. The Ordinance becomes effective January 1, 2018, and applies to anyone employed within the “geographic boundaries” of San Francisco.
California is often at or near the forefront when it comes to new developments affecting employers, and that's even more true at the municipal level. San Francisco has become the latest city to pass a measure prohibiting employers from asking prospective employees about their salary history. The new ordinance will ban employers, including city contractors and subcontractors, from considering a job applicant's current or past salary in deciding whether to hire them or what salary to pay them.
Jackson Lewis P.C. • April 24, 2017
A trier of fact can make reasonable inferences about employees’ duties to determine status for overtime pay under California labor law, the California Court of Appeal has ruled, affirming the trial court’s holding. Batze v. Safeway, Inc., No. B258732 (Cal. Ct. App. Apr. 4, 2017).
Jackson Lewis P.C. • April 06, 2017
The sick leave landscape is constantly evolving, and the City of Angeles is no exception to that rule. This past month the City of Los Angeles Office of Wage Standards (“OWS”) revised its rules and regulations (“Revised Rules”) as well the FAQs regarding its Minimum Wage and Paid Sick Leave Ordinance (the “Ordinance”).
Carothers DiSante & Freudenberger LLP • April 03, 2017
The minimum salary to qualify for a "white collar" overtime exemption in California has been higher than that required under federal law for many years. Because California's exempt salary threshold is tied to the state minimum wage (an exempt employee generally must earn a salary of at least two times the state minimum wage), it goes up as California's minimum wage goes up. The current minimum salary for exempt executive, administrative, or professional status in California is $43,680 per year. However, as employers know, last year the federal Department of Labor enacted regulations increasing the minimum salary to qualify for exempt status under the federal Fair Labor Standards Act ("FLSA") to $47,476 per year. California employers would have had to comply with the higher salary threshold under the FLSA, except that the regulations were blocked by a Texas court late last year. The Texas court's ruling is now on appeal, but most believe that the overtime regulations will not be reinstated -- at least in current form -- under the Trump administration.
California is now seeking to accomplish what the Obama administration could not accomplish at the federal level, by proposing to raise the minimum annual salary to qualify for exempt status in California to $47,472. AB 1565 (Thurmond) is a spot bill that was amended on Tuesday to propose the salary hike. Under the bill, the minimum salary for exempt executive, administrative, or professional workers would be $47,472 or twice the state minimum wage, whichever is greater. As California's minimum wage continues to rise, a salary of twice the state minimum wage eventually will be a number greater than $47,472. Until that time, $47,472 would be the minimum salary for exempt status in California.
FordHarrison LLP • March 31, 2017
Executive Summary: The effects of the California Supreme Court’s latest interpretation to provide seating to workers are beginning to show, as the United States District Court for the Central District of California recently approved a $700,000 settlement against a major retail clothing company for failure to provide seating in a representative action involving the Private Attorneys General Act of 2004, California Labor Code Section 2698, et seq., (PAGA).
Fisher Phillips • March 30, 2017
Employers nationwide breathed a collective sigh of relief when a federal district court judge in Texas enjoined the U.S. Department of Labor’s (USDOL’s) implementation of new minimum salary threshold requirements for the executive, administrative and professional overtime exemptions under federal law. However, that respite may be short-lived for employers here in California. Legislation just introduced in the California Legislature would raise the salary thresholds for these overtime exemptions under California law to the same levels that were proposed by the Obama administration.
Jackson Lewis P.C. • March 28, 2017
The California Court of Appeal has held that: (1) the use of payroll service provider generated unique employee file numbers on employee wage statements, in lieu of the employer’s internal employee identification number or last four digits of employee social security numbers, is legally permissible under California law; and (2) employers are not required to state applicable hourly rates for payments of accrued paid time off or vacation on exempt employee wage statements. Blaire v. Dole Food Co., No. B263695, 2017 Wage & Hour Cas.2d (BNA) 46,633 (Cal. Ct. App. Feb. 15, 2017) (unpublished).
Jackson Lewis P.C. • March 15, 2017
The California Fair Pay Act (CFPA) took effect a little over a year ago (January 2016) but already has been expanded to
Jackson Lewis P.C. • March 15, 2017
On February 28, 2017, in Vaquero, et al. v. Stoneledge Furniture LLC, the California Court of Appeal, Second Appellate District ruled that Wage Order 7-2001 (mercantile industry) requires employers to separately compensate non-exempt commissioned employees for rest breaks. It further held that the same analysis applies to “any other compensation system that does not separately account for rest breaks and other nonproductive time.” A link to the opinion can be found here.
Ogletree Deakins • March 14, 2017
San Francisco’s Paid Parental Leave Ordinance (PPLO) became effective on January 1, 2017, for employers with 50 or more employees. Effective July 1, 2017, the PPLO also applies to employers with 35 or more employees and, on January 1, 2018, to employers with 20 or more employees.
Fisher Phillips • March 13, 2017
Last month a California appellate court held that an employer violates California law by paying inside sales employees on a draw against commission. In Vaquero v. Stoneledge Furniture LLC, the court held that such a pay arrangement does not compensate employees for their mandatory paid rest breaks and other non-selling working time.
Ogletree Deakins • March 10, 2017
On December 1, 2016, a California Court of Appeal, in an unpublished decision, issued a ruling addressing the scope of both California Industrial Welfare Commission Wage Order 5-2001’s minimum wage rent credit and California Labor Code Section 226’s wage statement exemption for household employees. Rolfes v. Mei (No. B266929).
Ogletree Deakins • March 08, 2017
On February 28, 2017, the California Court of Appeal issued a significant decision in Vaquero v. Stoneledge Furniture LLC (No. B269657). The decision, which was certified for publication, is the first ruling by a California appellate court requiring employers to separately compensate commissioned employees—as opposed to employees paid by piece rate—for rest periods.
Fisher Phillips • March 07, 2017
In a somewhat unusual ruling last week, a California Court of Appeal announced that its previous February 2015 decision in the case of Gerard v. Orange Coast Memorial Medical Center, which partially invalidated healthcare meal waivers, was wrong. Accordingly, as a result of the March 1, 2017 ruling, healthcare employers in California will not face retroactive liability if they used waivers prior to October 5, 2015.
Fisher Phillips • March 06, 2017
A California appellate court ruled on February 28, 2017, that employees paid on a commission basis must be separately compensated for legally required rest periods (Vaquero v. Stoneledge Furniture LLC). Although this decision did not specifically involve automobile dealerships, this decision could impact any dealerships in California compensating individuals completely or partially on a commission basis (e.g., salespersons, finance managers, service advisors). If your dealership is in this category, you should review this decision to determine whether you need to immediately adjust your pay practices.
Fisher Phillips • March 06, 2017
A California appellate court ruled yesterday that workers paid on a commission basis must be separately compensated for legally required rest periods (Vaquero v. Stoneledge Furniture LLC). When combined with a state Supreme Court ruling late last year requiring employers to provide workers with duty-free rest breaks, this one-two punch of court decisions will force many California employers to alter their pay practices or face potentially devastating financial consequences.
Carothers DiSante & Freudenberger LLP • March 03, 2017
This week, a California Court of Appeal issued its decision in Vaquero v. Stoneledge Furniture LLC, holding that an employer violated California law by failing to pay commissioned employees for rest breaks. California law requires that employees be provided with a paid 10-minute rest break for each four hours, or major fraction thereof, worked. In this case, the employer, which operates retail furniture stores in California, provided rest breaks to its sales associates but the court held that the employer’s commission pay plan did not compensate associates for these rest breaks. The employer’s commission plan provided that associates would be paid a guaranteed minimum hourly rate ($12 per hour) for all hours worked and that this minimum would operate as a draw against commissions.
Littler Mendelson, P.C. • February 13, 2017
Developments at the local and state level have affected what employers must do to comply with the San Francisco Paid Parental Leave Ordinance (“SF PPLO” or the “Ordinance”).1 The SF PPLO took effect on January 1, 2017 (for employers with 50 or more employees), and the San Francisco Office of Labor Standards Enforcement (“SF OLSE”) has also adopted final rules implementing the SF PPLO,2 published a required form and poster, and issued supplemental compensation calculation instructions. Additionally, the California Employment Development Department (“EDD”) has increased the maximum weekly benefit under the California Paid Family Leave (“CA PFL”) insurance program, which impacts the SF PPLO supplemental compensation amount that must be paid to employees.
Jackson Lewis P.C. • February 08, 2017
Under California law, employers’ policies may permit rounding of employee timecard entries to the nearest tenth of an hour (six minutes), the Fourth Appellate District of the California Court of Appeal has affirmed. Silva v. See’s Candy Shops, Inc., No. D068136 (Dec. 9, 2016, published Jan. 5, 2017) (“See’s Candy II”). The Court also offered guidance on the circumstances that comply with the timekeeping standards.
Jackson Lewis P.C. • February 06, 2017
Employers in San José, California, must offer additional work hours to existing qualified part-time employees before hiring new employees beginning March 13, 2017, under the Opportunity to Work Ordinance.
Littler Mendelson, P.C. • January 06, 2017
Starting January 1, 2017, California now has two different minimum wages – $10.00 per hour for “small” employers, and $10.50 for “large” employers. This “two-tier” minimum wage structure will remain in place for the next seven years, and will provide several ongoing challenges for employers in the Golden State. In this podcast, California Littler Shareholder, Bruce Sarchet, breaks down the impact of this two-tier approach on businesses and provides guidance on employer compliance with these new obligations.
Littler Mendelson, P.C. • January 06, 2017
Recently California’s Division of Labor Standards Enforcement (“DLSE”) issued an FAQ concerning 2016 legislative changes that impact the state minimum wage in 2017 and future years. The most notable change was the creation of a two-tier system in which a $10.50 minimum wage rate applies to employers with 26 or more employees and a $10.00 minimum wage rate applies to employers with 25 or fewer employees. The FAQ do not provide concrete guidance as to how employer size is calculated, but do provide a glimpse into how DLSE might interpret the law. The lack of clarity in the FAQ will particularly frustrate some Southern California employers that must also comply with local minimum wage laws which, like their state counterpart, use a 26/25 employee cut-off, but a different test to determine employer size.
Fisher Phillips • January 06, 2017
Time was, answering the question “What is the minimum wage?” was simple. There was the federal minimum wage and the state minimum wage, and for most California employers, only the latter number really mattered. Now the answer to the question is “It depends.” As California employers begin a new year they face a confusing patchwork of laws regarding the minimum wage.
Fisher Phillips • January 04, 2017
The past several years have been a difficult time for many California employers when it comes to wage and hour compliance. But if enterprising plaintiffs’ attorneys have their way, times will get even worse in the coming years. By examining what we have experienced in the recent past along with current trends shaping the future of wage and hour law, you can be ready to handle the expected onslaught of new claims that could be heading your way.
FordHarrison LLP • December 29, 2016
Executive Summary: After a years-long battle, the California Supreme Court finally issued a ruling defining what it means for an employer to provide a rest break to non-exempt employees under California law: rest breaks cannot be “on-duty” or “on-call,” as employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. This includes a prohibition against requiring employees to keep work cell phones, pagers, and walkie talkies on during breaks, but it may also prohibit other policies such as requiring employees to stay on the premises during breaks or single/limited staffing models.
Jackson Lewis P.C. • December 29, 2016
A class of security guards received an early holiday present from the California Supreme Court on December 22.
Carothers DiSante & Freudenberger LLP • December 23, 2016
Today the California Supreme Court issued a surprising and unfortunate decision in Augustus v. ABM Security Services, Inc., holding that employers cannot require employees to remain “on-call” during rest breaks, even though these short breaks are part of the employees’ paid hours worked. The Court held that the same standard that applies to off-duty meal breaks applies to paid rest break time. More specifically, California law requires that during unpaid, off-duty meal breaks, employees must be relieved of all duties and free from employer control as to how they spend their time. The Court today held that this is also true for paid rest break time and that an employer does not comply with this standard if it requires employees to remain “on-call,” i.e. viligant and available for possible interruption during rest breaks. This ruling results in the potential reinstatement of a $90 million verdict against the security company, whose security guards remained on-call during rest breaks and carried radios or other communication devices in the event they needed to return to work. Even though the record showed that breaks were rarely interrupted and that this on-call requirement was tied to the nature of the work as a security guard, the Court held that the on-call requirement invalidated the rest breaks.
XpertHR • December 15, 2016
In a first-of-its-kind criminal conviction in California, a San Diego restaurant owner has been sentenced to two years in jail for promising wages to immigrant workers but paying them only in tips. San Diego County Superior Court also ordered the employer to repay $20,000 in stolen wages and tips to six of the restaurant workers.
XpertHR • December 14, 2016
San Jose, California voters have approved the Opportunity to Work ordinance, which is intended to provide part-time, low-income workers with more job opportunities that will help them increase their earnings and access benefits. Under the new ordinance (aka Measure E on the San Jose ballot), before certain employers may hire new part-time or temporary workers, they will be required to offer additional hours of work to current part-timers who they believe have the skills and experience to do the work. According to Silicon Valley Rising, the group that authored the ordinance, the measure will curtail the practice of large- and medium-sized Silicon Valley employers limiting workers' hours to avoid paying for health insurance and other benefits (like paid sick days).
Jackson Lewis P.C. • December 13, 2016
For several years, California employers have been required to notify employees regarding the federal Earned Income Tax Credit. Beginning January 1, 2017, new California law (AB 1847) requires those same employers to also notify employees that they may be eligible for the California Earned Income Tax Credit (“EITC”).
Ogletree Deakins • December 07, 2016
Starting January 1, 2017, companies of all sizes doing business in California will need to take extra care to ensure they are not paying employees differently based on their race or ethnicity or basing new employees’ compensation solely on their prior salary. California Governor Jerry Brown recently signed two pieces of legislation that significantly expand the state’s recently revamped Fair Pay Act (FPA). Employers seeking to reduce legal risk amid the growing pay equity movement should take note.
Ogletree Deakins • November 29, 2016
The California minimum wage is scheduled to increase on January 1, 2017 to $10.50 per hour for businesses employing 26 or more employees. Small employers with 25 or fewer employees will not see an increase until 2018. The increase is a result of SB-3, which was signed into law earlier this year. The law will increase California’s minimum wage to $15 per hour over 6 years, with cost of living increases scheduled thereafter.
Jackson Lewis P.C. • November 22, 2016
All California employers should know by now that if they have a paid vacation policy, the vacation benefits constitute a form of “wages” under California law. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103; Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784.) California employers are also likely readily familiar with the requirements of Labor Code section 226(a), which require employees’ wage statements to contain certain information, including gross wages earned.
Carothers DiSante & Freudenberger LLP • October 24, 2016
As election day approaches, employers are reminded that California law requires them to post a notice 10 days before the election informing employees of their voting rights under state law. Specifically, employees must be informed that if they do not have sufficient time outside of working hours to vote, they may take off enough working time that, when added to the voting time available outside of working hours, will enable them to vote. Up to two hours of this time must be paid. The employer can require that the time off for voting be taken at the beginning or end of the employee's shift, whichever allows the most free time for voting and the least time off from the regular working shift.
Jackson Lewis P.C. • October 24, 2016
On September 30, 2016, California Governor Jerry Brown signed into law two bills designed to address ongoing concern of pay inequity. A.B. 1676 amends the California Fair Pay Act by prohibiting employers from relying on an employee’s prior salary to justify a disparity between the salaries of similarly situated employees. S.B. 1063 extends the Fair Pay Act by providing additional protections on the basis of race and ethnicity. A.B. 1676 and S.B. 1063 are effective January 1, 2017.
Littler Mendelson, P.C. • October 18, 2016
In this podcast, Littler Shareholder Bruce Sarchet provides historical insight into California’s Fair Pay Act and breaks down the recent major changes in the law. He discusses the impact of those changes on your workplace now, and what specific steps you can be taking to help limit liability in this area. Bruce’s basic, nuts and bolts approach to breaking down the Fair Pay Act will help your team make sense of this otherwise confusing law, and his five action steps will provide guidance to all employers to develop an approach to the challenges presented by this revised law.
Fisher Phillips • October 13, 2016
On October 5, 2016, the Director of California’s Department of Industrial Relations set new minimum pay rates for next year for certain professionals exempt from overtime. Effective January 1, 2017, exempt computer professionals must be paid at least $42.39 per hour, or a minimum salary of $7,359.88 monthly or $88,318.55 annually.
Jackson Lewis P.C. • October 11, 2016
Beginning January 1, 2017, employers with 50 or more employees who have employees in San Francisco will need to begin providing payments to eligible employees who take time off to bond with a newborn child.
Fisher Phillips • October 05, 2016
Meal and rest breaks are important because missed breaks create significant liability. An employee who misses a meal period or takes a late meal period or a short meal period is owed a penalty.
Fisher Phillips • October 03, 2016
On September 30, 2016, California Governor Jerry Brown signed the Wage and Equality Act of 2016 (SB 1063) into law, which will prohibit employers from paying employees of one race or ethnicity a lower wage than employees of different races or ethnicities. The bill is a virtually verbatim extension of the Fair Pay Act’s requirements that apply between workers of opposite genders. It will go into effect on January 1, 2017.
Littler Mendelson, P.C. • September 22, 2016
On September 14, 2016, San Francisco amended its Paid Parental Leave Ordinance (PPLO). The law will go into effect on January 1, 2017 for employers with 50 or more employees.1 The law requires private employers to provide supplemental compensation to employees who use California paid family leave (PFL) benefits for new child bonding. The amendments both respond to changes the California Legislature made to the PFL benefits program and attempt to clarify an employer’s PPLO supplemental compensation obligations.
Fisher Phillips • September 14, 2016
On September 12, 2016, Governor Jerry Brown signed the Phase-In Overtime for Agricultural Workers Act of 2016 (AB 1066) into law, providing more stringent overtime protections for agricultural workers. California law currently requires that employers only pay agricultural workers overtime when they work more than 10 hours in a day, but under the new law, sponsored by the United Farm Workers’ union, employer compensation obligations will increase considerably.
Littler Mendelson, P.C. • September 01, 2016
In this podcast, Littler Shareholder Bruce Sarchet unveils his personal “5-Step Self-Audit” process to help California employers and Human Resources departments avoid wage and hour class actions and related claims. Although Bruce’s process will not guarantee that your company won’t get sued, it will provide an overview of wage and hour litigation along with a very short and simple way to double check your compliance efforts. Bruce’s methodology can help reduce the chance that you are hit with a wage and hour claim in the first place.
Carothers DiSante & Freudenberger LLP • August 23, 2016
Last week, the California Supreme Court agreed to review Troester v. Starbucks, a case involving the issue of whether de minimis work time must be compensated under California law. In Troester, the plaintiff was a former employee of Starbucks who sued the coffee giant because he was not paid for certain closing-related activities such as time spent walking out of the store after activating the alarm and time spent locking the door -- activities that took a minute or two and effectively had to be performed after the plaintiff clocked out on Starbucks' timekeeping software. Plaintiff sued for unpaid wages under California law. A federal district court in California granted summary judgment in favor of Starbucks, ruling that this "work" time was de minimis and that Plaintiff was not owed compensation for it. Plaintiff appealed to the Ninth Circuit.
Jackson Lewis P.C. • August 03, 2016
California S.B. 1342 is a new law which allows cities and counties to work with the California Division of Labor Standards enforcement (“DLSE”) to enforce wage payment laws. The new measure was intended to give local enforcement programs the tools required to conduct wage claim investigations in order to recover unpaid wages including the ability to issue subpoenas. The law encourages cities and counties to develop specific measures to target and remedy wage theft. Many cities have already adopted city minimum wage and paid sick leave laws and the list is growing.
Jackson Lewis P.C. • August 01, 2016
On July 22, 2016, the Governor approved California Assembly Bill 2535 (“AB 2535”), which relates to itemized wage statements (more commonly known as pay stubs). Specifically, AB 2535 revises California Labor Code Section 226. The prior version of Labor Code Section 226 required employers to include on a pay stub total hours worked by the employee unless the employee was paid a salary and exempt from overtime. AB 2535 expands on Labor Code Section 226 and alters reporting requirements by asserting that employers do not need to report total hours worked on a pay stub for employees who are “exempt from the payment of minimum wage and overtime” under specified statutes or any applicable order of the Industrial Welfare Commission.
Jackson Lewis P.C. • July 21, 2016
On July 20, 2016, California Department of Industrial Relations (“DIR”) issued a press release stating DIR enforcement of a contractor and subcontractor’s requirement to submit certified payroll records(“CPRs”) using DIR’s online system will resume on August 1. DIR clarified that the requirement to keep CPRs has not changed. Previously, DIR suspended enforcement of filing CPRs electronically because of problems with the system and improvements.
Jackson Lewis P.C. • July 19, 2016
Nearly all California employment wage and hour class action lawsuits assert a cause of action under California Labor Code Section 226 as plaintiffs’ attorneys almost always automatically include such cause of action when there are other alleged underlying wage violations, i.e. failure to pay overtime.
Carothers DiSante & Freudenberger LLP • July 14, 2016
On July 11, 2016, the results of San Diego’s June election were certified, meaning that the minimum wage and paid sick leave ordinance that was approved by San Diego voters on the June ballot officially took effect on Monday. Our prior post on this new ordinance is here. If you are not already in compliance, you must begin compliance with both the minimum wage increase and the paid sick leave provisions this week. The City has released a FAQ on the new ordinance, available here. San Diego employers should also be aware that the San Diego City Council is already making changes to the paid sick leave requirements. The City is doing so pursuant to a provision in the ordinance that requires the City to create and issue an “implementing” ordinance. Under that implementation authority, the City has determined that it can also revise/clarify the paid sick leave requirements. The City has proposed an implementation ordinance that includes some significant changes to the paid sick leave provisions of the original ordinance.
Ogletree Deakins • July 11, 2016
On June 1, 2016, the Los Angeles City Council passed an ordinance impacting employers in the city of Los Angeles and mandating paid sick leave beyond that which is required under the recently passed California statute (Cal. Labor Code section 245, et. seq.).
Carothers DiSante & Freudenberger LLP • July 04, 2016
Effective this Friday, July 1, 2016, employers with 26 of more employees, must pay employees who perform at least two hours of work within the geographic boundaries of the City of Los Angeles within a particular week at least $10.50 for each hour worked.
Fisher Phillips • July 04, 2016
California employers continue to struggle with how to comply with their obligation to provide meal and rest periods to their non-exempt employees.
Jackson Lewis P.C. • June 17, 2016
Employers in the City of Los Angeles will need to review their current minimum wage and paid sick leave policies to ensure they comply with the new City ordinance increasing the minimum wage and extending paid sick leave benefits to employees working in the City.
Jackson Lewis P.C. • June 13, 2016
Employers in the City of San Diego will need to review their current paid sick leave and minimum wage policies to ensure they comply with a voter-approved ordinance extending paid sick leave and raising the minimum wage for workers in the City.
Two more cities are expected to join the growing ranks of municipalities around the country that have adopted local minimum wage laws.
Vedder Price • June 02, 2016
On April 21, 2016, San Francisco Mayor Ed Lee signed a new ordinance making San Francisco the first municipality in the United States to require employers to provide fully paid leave for new mothers and fathers to bond with their newborn or newly adopted child. The law becomes effective January 1, 2017.
Ogletree Deakins • May 24, 2016
On May 18, 2016, the U.S. Department of Labor (DOL) released its long-anticipated revisions to the federal overtime regulations governing the so-called white-collar exemptions to the federal Fair Labor Standards Act (FLSA). Most notably, the revisions more than double the minimum salary threshold needed to qualify for the executive, administrative, and professional exemptions. The revised regulations also make other significant changes to the amounts that must be paid, including allowing employers to count nondiscretionary bonuses and commissions to satisfy a portion of the salary threshold, scheduling automatic adjustments to the salary threshold every three years, and increasing the annual salary threshold for the “highly compensated employee” exemption. Fortunately, the new regulations do not make changes to the duties tests for the white-collar exemptions. The new regulations will go into effect on December 1, 2016.
Carothers DiSante & Freudenberger LLP • May 03, 2016
Yesterday, the Ninth Circuit issued its decision in Corbin v. Time Warner-Advance Newhouse, rejecting an employee’s claim that he was unlawfully denied compensation for hours worked due to his employer’s poilcy of rounding time entries to the nearest quarter hour. The Ninth Circuit further rejected the employee’s claim that the trial court erroneously denied class certification on the rounding claim.
Littler Mendelson, P.C. • April 22, 2016
On April 21, 2016, Mayor Ed Lee signed an ordinance making San Francisco the first municipality to require private employers to compensate employees while on parental bonding leave. Under the law, when covered employees use California paid family leave (PFL) benefits for new child bonding – bonding with a minor child during the first year after birth or placement through foster care or adoption – covered employers must pay “supplemental compensation.” The new ordinance, operative on January 1, 2017, continues San Francisco’s legacy of progressive employment standards.1
San Francisco will become the first US city to require employers to offer six weeks of fully paid parental leave to new parents. The city's Board of Supervisors passed the groundbreaking ordinance unanimously, which provides covered employees with the opportunity to bond with a child during the first year after the birth of the child or after placement of the child through foster care or adoption. The ordinance will apply to both same-sex and opposite-sex couples.
Fisher Phillips • April 08, 2016
Imagine being sued by every single one of the employees who worked for you over the past four years because your paystubs have an extra comma in your company’s name. Or because the zip code is missing from your company’s address. Or perhaps because the paystub includes the pay period end date but not the beginning date.
Fisher Phillips • April 08, 2016
In a recent decision by the federal 9th Circuit Court of Appeals, a 2011 U.S. Department of Labor (USDOL) regulation that significantly restricts the common practice of “tip pooling” among wait staff and other service employees was revived. As a result, you should now review your tip-pooling practices and procedures to ensure compliance with the regulation, even if you already comply with California state tip-pooling rules.
FordHarrison LLP • April 07, 2016
On April 5, 2016, San Francisco, California's Board of Supervisors approved a measure mandating that San Francisco employers provide six weeks of fully paid leave during a calendar year for new parents, including mothers, fathers, and same-sex couples, who either bear or adopt a child. It is another in a long line of employee-friendly laws recently passed both in California and around the country.
Fisher Phillips • April 07, 2016
The City of San Francisco just became the first city in the country to pass legislation requiring many employers to provide workers with paid parental leave, entitled the “Paid Parental Leave Ordinance.” Starting in 2017, many businesses in San Francisco will be required to provide up to six weeks of fully paid parental leave to most workers after certain conditions are met. This groundbreaking law will force employers to revamp their administrative policies and practices, while adjusting their budgets to foot this new bill.
The following Frequently Asked Questions will assist employers who operate in San Francisco in determining the specifics of coverage under the new law:
Ogletree Deakins • April 06, 2016
On April 5, 2016, the City of San Francisco moved one step closer to imposing paid parental leave on certain employers when the city’s Board of Supervisors passed the “Paid Parental Leave Ordinance.” The Board will vote again at its next meeting and, if it passes, will send the ordinance to Mayor Ed Lee.
Carothers DiSante & Freudenberger LLP • April 06, 2016
Today, San Francisco became the first city in the nation to pass an ordinance requiring employers to provide paid parental leave to employees. To be clear, the ordinance does not require employers to provide 100% of the employee’s pay, but rather requires employers to bridge the gap between the employee’s regular compensation and the wage replacement benefit the employee receives from the State EDD under the state’s paid family leave program. Under that program, employees generally receive 55% of their wages for up to six weeks when they take leave to bond with a new child (and/or for other covered reasons).
Littler Mendelson, P.C. • April 05, 2016
When it wants to, the California Legislature can act with impressive speed. It did so last week on a minimum wage increase bill (SB 3)1 when, in less than 96 hours, it amended the legislation and sped it through two committee hearings and two final floor considerations. On Monday, April 4, 2016, California Governor Jerry Brown signed the bill, which will eventually raise the statewide minimum wage to $15 per hour, into law. The bill’s proponents said that under this measure, nearly six million California workers—more than one-third of the Golden State’s workforce—will receive a raise.2
Fisher Phillips • April 05, 2016
Today California Governor Jerry Brown signed into law a sweeping plan that will eventually increase the statewide minimum wage from $10.00 to $15.00 per hour. While the state of New York announced a deal last week that will also increase the state minimum wage to $15.00 in most areas (while preserving the possibility of a suspension in the rate growth depending on economic factors), California becomes the first state to implement a statewide rate at that level.
Ogletree Deakins • April 05, 2016
On April 4, 2016, Governor Brown—as expected—signed a bill to raise the state minimum wage rate to $15.00 per hour by 2022. The new law will increase the minimum wage for large and small businesses according to two schedules. It will also have the effect of increasing the minimum exempt salary requirement for exempt California employees.
Ogletree Deakins • April 01, 2016
On March 31, 2016, the California legislature approved the nation’s highest statewide minimum wage. SB-3, approved in both the State Senate and Assembly, will increase the state’s minimum wage to $15.00 per hour by 2022. Governor Jerry Brown has already signaled that he intends to sign the bill into law on Monday, April 4, 2016.
California's legislature on March 31 passed a bill that, if signed by the governor as expected, will raise the state's minimum wage to $15 per hour over the next six years.
Fisher Phillips • March 31, 2016
On Monday, March 28, 2016, California Governor Jerry Brown, flanked by union and state government officials, announced an agreement with state legislators to increase the statewide minimum wage from $10.00 to $15.00 per hour.
Carothers DiSante & Freudenberger LLP • March 30, 2016
Last week, we reported on two labor-backed measures to increase California’s minimum wage that may be on the November ballot in California. Now, it appears that California’s lawmakers have struck a deal with labor groups to raise the minimum wage without sending the minimum wage hike proposals to the voters to decide. Governor Brown’s office issued a press release today describing the “landmark agreement.”
Ogletree Deakins • March 29, 2016
In January of 2016, the Santa Monica City Council adopted a wide-reaching ordinance that will raise the city’s minimum wage and impose paid sick leave requirements that exceed the state’s paid sick leave statute. The ordinance also establishes an even higher minimum wage for hotel workers. The city established a minimum wage working group to make further recommendations on the ordinance. Absent working group consensus on specific changes, the ordinance will take effect on July 1, 2016.
Ogletree Deakins • March 29, 2016
On March 14, 2016, the Pasadena City Council adopted an ordinance to increase the city’s minimum wage. Beginning on July 1, 2016, employers with 26 or more employees must pay a minimum wage of $10.50 per hour to all employees who work at least 2 hours per week within the city’s geographic bounds. The minimum wage will increase to $12.00 per hour on July 1, 2017, and $13.25 per hour on July 1, 2018.
Ogletree Deakins • March 28, 2016
According to media and government reports, California lawmakers have struck a deal with labor unions to increase the statewide minimum wage to $15.00 per hour over several years.
Carothers DiSante & Freudenberger LLP • March 24, 2016
An initiative backed by labor union SEIU-United Healthcare Workers West to raise California’s minimum wage is slated to be on the November ballot, after backers gathered more than 400,000 signatures supporting the measure. The measure, dubbed The Fair Wage Act of 2016, proposes increasing California’s minimum wage to $11 per hour in 2017, with further one dollar per hour increases each year thereafter until reaching $15 per hour in 2021. A competing measure backed by another branch of the same labor group, SEIU-State Council, may also make it on the November ballot as the largest labor union in the state continues to gather signatures for that initiative. This rival measure seeks to increase the minimum wage to $15 per hour by 2020 (a year earlier than the SEIU-UHW backed measure) and also seeks to mandate that California employers provide employees with 6 days of paid sick leave per year (double the amount currently required). We will keep you posted of any significant developments related to these measures.
Fisher Phillips • March 14, 2016
A three-judge panel of the 9th U.S. Circuit Court of Appeals recently sent shockwaves throughout the hospitality industry, specifically restaurants, when it decided Oregon Restaurant and Lodging Association v. Perez and consolidated case Cesarz, Ngoc Tang v. Wynn Las Vegas LLC, 14-15243 (Feb. 23, 2016). 2016 DJDAR At issue was the legality of "tip pooling."
Jackson Lewis P.C. • March 09, 2016
California’s City of Santa Monica’s City Council has adopted an ordinance that enacts minimum wage and paid sick leave requirements for covered employees as well as new regulations pertaining to service charges and surcharges. Ordinance Number 2509 became effective on February 25, 2016, although its provisions will not be implemented until July 1, 2016.
Littler Mendelson, P.C. • February 19, 2016
With little fanfare or advance notice, Santa Monica, California, became the latest municipality to enact its own minimum wage and sick leave ordinance (“Ordinance”), proposed by the City Council on January 12, 2016, and approved shortly thereafter on January 26, 2016.
Carothers DiSante & Freudenberger LLP • February 11, 2016
California’s minimum wage increased to $10 per hour effective January 1, 2016. This is the second increase in just 18 months under legislation originally signed by Governor Jerry Brown in 2013. Unfortunately, this latest increase to the statewide minimum wage is not the only one facing California employers. More than a dozen cities across California have already enacted their own minimum wage ordinances requiring employers to pay workers at rates as high as $15.37 per hour – and several other cities are looking to follow suit. It is a hodgepodge environment in our state, when it comes to minimum wage regulation.
Ogletree Deakins • January 05, 2016
California employers are preparing for the effects the Fair Pay Act—the new law signed by Governor Brown last October that significantly changes California’s gender equality pay law. Senate Bill 358 (SB 358), which went into effect on January 1, 2016, requires employers to pay employees of the opposite sex equivalent wages for “for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” This is a significant change from the law’s former requirement that employees of the opposite sex receive equal pay for “equal work.”
Ogletree Deakins • December 16, 2015
On October 10, 2015, California Governor Jerry Brown signed Assembly Bill 1513, which added new requirements with regard to employees who work on a piece-rate basis. The new law, which amends California Labor Code section 226.2, changes the way employers are required to pay employees paid on a piece-rate basis. The new section 226.2 goes into effect on January 1, 2016.
Carothers DiSante & Freudenberger LLP • December 15, 2015
Two new employment decisions were issued today, one by a California Court of Appeal and the other by the Ninth Circuit. In Prue v. Brady Company, the California court held that a plaintiff who suffered a work-related injury and subsequently was fired stated a valid legal claim against the employer for wrongful termination in violation of public policy. The employer argued that the plaintiff’s claim was invalid because it effectively was a Labor Code section 132a retaliation claim that could only be brought before the Workers’ Compensation Appeals Board, not in court. The court disagreed, reasoning that the plaintiff adequately alleged that he was wrongfully terminated for having a disability, in violation of the public policy of the Fair Employment and Housing Act, and therefore the claim was not barred by the doctrine of workers’ compensation exclusivity. The employer argued that even if the claim was based on the public policy of FEHA, the claim would be barred by the one-year statute of limitations applicable to FEHA claims. The court rejected this argument as well, ruling that a wrongful termination in violation of public policy claim is governed by a two-year statute of limitations and not by the statute of limitations applicable to FEHA claims. This decision is not particularly novel, but is a good reminder for employers that employees who believe they have been fired for reasons relating to a work comp injury can sue their employer in court and seek punitive damages (under a disability discrimination theory) and are not limited to the remedies set forth in Labor Code 132a.
FordHarrison LLP • December 15, 2015
Executive Summary: California's amended Fair Pay Act goes into effect on January 1, 2016, and is considered the most stringent law in the nation. The new law received broad support from both Republicans and Democrats in the Legislature. It arises out of their finding that "in 2014, the gender wage gap in California stood at 16 cents on the dollar. A woman working full time year round earned an average of 84 cents to every dollar a man earned. This wage gap extends across almost all occupations reporting in California. This gap is far worse for women of color; Latina women in California make only 44 cents for every dollar a white male makes, the biggest gap for Latina women in the nation." California's equal pay law has been on the books since 1949, and prohibited employers from paying a woman less than a man when they are both doing "equal work" at the same establishment. The amended law requires equal pay for "substantially similar work." (The law specifically prohibits discrimination based on sex, but in light of the Legislature's focus on the gender wage gap, this article addresses pay discrimination allegations made by women.)
Vedder Price • December 03, 2015
California Governor Edmund G. Brown, Jr. recently signed into law the California Fair Pay Act (CFPA) (Senate Bill 358). The CFPA, which takes effect on January 1, 2016, is intended to increase wage transparency and will be one of the strongest equal-pay laws in the country.
Jackson Lewis P.C. • November 17, 2015
Anyone paying attention to national politics knows increasing the minimum wage is a hot topic being debated by employee and business groups. While the debate rages, the Sacramento City Council decided not to wait for the feds or the state to act, and recently voted 6-3 to increase the Sacramento city minimum wage, as follows:
Littler Mendelson, P.C. • November 09, 2015
On November 5, 2015, the House of Representatives approved a transportation funding bill with an amendment that would reverse a 2014 Ninth Circuit decision that California's meal and rest break laws are not preempted under the Federal Aviation Administration Authorization Act of 1994 (FAAAA). This amendment is of critical importance to truck operators in California as well as the rest of the country.
Ogletree Deakins • October 30, 2015
Companies that classify workers as independent contractors are facing increasing scrutiny in court and before administrative agencies. A recent unpublished California Court of Appeal decision in a case titled Garcia v. Seacon Logix, Inc. highlights the factors considered by a court in determining worker status.
Goldberg Segalla LLP • October 19, 2015
With the recent passage of the California Fair Pay Act, California strengthened its existing equal pay law by requiring employers pay men and women the same for not only “equal work,” but also for “substantially similar work.” As a result, employees may now challenge the fairness of their pay by drawing comparisons to “substantially similar” jobs with different titles.
XpertHR • October 19, 2015
California Governor Jerry Brown has signed a flurry of bills into law, but the most notable includes significant changes to the state's equal pay statute. California law and federal law already required equal pay to employees of the opposite sex for equal work. But this new measure goes much further, leading Governor Brown to call it, "The strongest equal pay law in the nation."
Jackson Lewis P.C. • October 14, 2015
Requiring employers to prove an employee’s higher pay is determined on factors other than gender and allowing workers to sue if they are paid less than co-workers of a different gender with different job titles doing “substantially similar” work highlight California’s expanded Fair Pay Act (SB 358), signed by Governor Jerry Brown on October 6, 2015.
Littler Mendelson, P.C. • October 13, 2015
On October 10, 2015, Governor Edmund Gerald Brown, Jr. signed into law legislation that re-writes the definition and rules governing the payment of piece-rate compensation in California. Assembly Bill (AB) 1513 creates new California Labor Code section 226.2 and sets forth requirements for the payment of a separate hourly wage for “nonproductive” time worked by piece-rate employees, and separate payment for rest and recovery periods to those employees.
Jackson Lewis P.C. • October 13, 2015
On October 5, 2015, Governor Jerry Brown signed into law a bill confirming that employees in the health care industry can waive one of their two meal periods when working a shift of over eight hours in a workday. This law clarifies confusion caused by a recently decided appellate case, Gerard v. Orange Coast Memorial Medical Center, 234 Cal.App.4th 285 (C.A. 4th, 2015) (review granted). The Gerard case is currently under review by the California Supreme Court.
Littler Mendelson, P.C. • October 12, 2015
The U.S. Court of Appeals for the Ninth Circuit recently addressed the compensability of commute time under the California Labor Code and the content required in a Private Attorneys General Act of 2004 (PAGA) letter.
Jackson Lewis P.C. • October 08, 2015
On October 6, 2015 Governor Jerry Brown signed Senate Bill 358 (“SB 358”), a law that substantially eases California employees’ burden in proving gender-based pay claims. This law also increases the number of years that employers must retain employee records, and creates additional protections for employees who wish to discuss or disclose their wages.
Carothers DiSante & Freudenberger LLP • October 07, 2015
As California’s current legislative process heads into its final days, we have a few updates on employment-related matters relating to paid sick leave, wage statement violations, meal period waivers in the health care industry, and the Fair Pay Act.
Littler Mendelson, P.C. • October 07, 2015
On October 6, 2015, California's Governor Edmund G. Brown, Jr. signed into law Senate Bill (SB) 358, legislation intended to increase wage transparency and which will make it more difficult for an employer to defend against an equal pay claim. This measure, which amends Section 1197.5 of the California Labor Code relating to private employment, will take effect on January 1, 2016. When it takes effect, California's law on this subject will be one of the strongest equal pay laws in the nation.
Ogletree Deakins • October 06, 2015
On October 2, 2015, Governor Jerry Brown signed into law Assembly Bill 1506 (AB 1506). The new law amends the California Private Attorneys General Act (PAGA) to allow employers the right to “cure” certain commonly litigated defects in employee wage statements within 33 days of notice by the employee in order to avoid litigation. The cure provisions for wage statements, which can be onerous, apply only to California Labor Code section 226(a)(6)—which requires employers to specify the inclusive dates of the period for which the employee is paid—and section 226(a)(8) —which requires employers to state the name and address of the “legal entity” that is the employer. AB 1506 is urgency legislation and therefore effective immediately.
Fisher Phillips • October 02, 2015
There is nothing so central to wage-hour laws than the sacred domain of “hours worked.” The concept is simple: employees record the time they spend working, and from this data employers generate labor budgets and employee pay checks.
Ogletree Deakins • September 01, 2015
A controversial bill to increase California’s minimum wage has failed to pass in the state legislature. The bill would have phased in a $3.00 per hour increase to the minimum wage rate and also would have imposed annual cost of living increases.
XpertHR • August 12, 2015
California Labor Commissioner Julie A. Su issued more than $2.2 million in citations to the owners of three residential care facilities for what were deemed "egregious" wage theft violations.
XpertHR • August 10, 2015
A union's efforts to increase the minimum wage in California to $15.00 per hour by 2021 has cleared a major hurdle.
Brody and Associates, LLC • August 05, 2015
Los Angeles recently took a big step towards becoming the latest city to adopt the $15 per hour band wagon. Draft minimum wage and wage enforcement ordinances made their way through the Los Angeles City Council and City Attorney’s offices in May and June. Eric Garcetti, mayor of Los Angeles, formally signed the ordinances into law on June 13.
Littler Mendelson, P.C. • July 30, 2015
On July 21, 2015, the Los Angeles County Board of Supervisors approved a motion directing County Counsel to prepare a “Countywide Minimum Wage Ordinance” to incrementally increase the minimum wage for Los Angeles County employees and employees working in unincorporated areas within the county. The motion calls for raising the minimum wage in ways that match the recently enacted Los Angeles City Minimum Wage Ordinance.1 If the county follows through, both Los Angeles City and Los Angeles County would require all covered employers to provide a minimum wage of $15 per hour by 2021.
Jackson Lewis P.C. • July 30, 2015
Applying California’s administrative exemption test, the U.S. Court of Appeals for the Ninth Circuit recently concluded an insurance company properly classified its claims adjusters (who handled and processed disability claims) as exempt from the overtime provisions of the California Labor Code, notwithstanding the clerical duties the adjusters performed and their characterization of their work as “routine”. See Bucklin v. Zurich Am. Ins. Co., 2015 U.S. App. LEXIS 12497 (9th Cir. July 20, 2015).
Jackson Lewis P.C. • July 17, 2015
On July 15, Governor Jerry Brown signed into law AB 202, which requires California-based minor or major league sport teams in certain sports to treat cheerleaders as employees, not independent contractors.
Littler Mendelson, P.C. • July 08, 2015
On June 26, 2015, a California appellate court rendered a precedential opinion1 that should hopefully put to rest the issue of whether an employer must withhold taxes on settlements or judgments made to former employees in employment-related litigation. The case, Cifuentes v. Costco Wholesale Corporation, is typical of many of these kinds of employment-related disputes. The plaintiff won a judgment for lost wages against his former employer, which then withheld federal and state payroll taxes from the award. The former employee claimed the judgment was not satisfied, citing to Lisec v. United Airlines.2
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.
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.
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.
Fisher Phillips • 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).
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.
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.
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.
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).
Fisher Phillips • 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 • 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.
Fisher Phillips • 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 • 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 • 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 • 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.
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).
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.
Fisher Phillips • 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.
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 • 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.
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.
Fisher Phillips • 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.
Fisher Phillips • 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.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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.
Ogletree Deakins • September 26, 2013
Minimum wage earners across the state are celebrating.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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 • 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 • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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.
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
Fisher Phillips • 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.
Fisher Phillips • 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.
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.
Fisher Phillips • 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.
Fisher Phillips • 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.
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.
Fisher Phillips • 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 • 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.
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.
Fisher Phillips • 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.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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 • 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).
Fisher Phillips • 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 • 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 • 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.
Fisher Phillips • 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 • 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.
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:
Fisher Phillips • 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 • 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 • 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 • 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.
Fisher Phillips • 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 • 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 • 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?
Fisher Phillips • 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 • 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.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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 • 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 • 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 • 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 • 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 • 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 • 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 • 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 • 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.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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.
Fisher Phillips • 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 • 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.
Fisher Phillips • 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.