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No Arbitration of PAGA Claims

PAGA continues to be an important tool for workers in California seeking to enforce their rights under the Labor Code.  Employers continue to try to force PAGA claims into arbitration, where they think that they have a decisive advantage.  Yet courts continue to block these efforts.  As a result, PAGA claims remain in court where they belong.

The latest case to hold that PAGA claims cannot be arbitrated is Hernandez v. Ross Stores, Inc. (2d DCA Pub. Order 1/3/17) E064026.  There, the plaintiff, a warehouse worker, sought to bring a PAGA-only action against the discount store giant for failure to pay wages, failure to properly itemize hours, and failure to pay overtime.  Ross attempted to compel Hernandez to arbitrate her individual claims, arguing that its arbitration agreement stated that it applied to “any disputes arising out of or relating to the employment relationship” between Ross and an employee.  Ross contended, based upon this language, that before Hernandez could bring a PAGA action, she had to arbitrate the “dispute” over whether she was an aggrieved employee.

Not surprisingly, this too-clever-by-half argument failed.  Both the trial court and Division Two of the Second District Court of Appeal held that Hernandez could not be compelled to arbitrate her PAGA claims.  The trial court grounded its analysis in the seminal case of Iskanian v. CLS Transportation (2014) 59 Cal.4th 348, which held that PAGA actions-whether seeking penalties for one employee or for a group of them-are fundamentally law enforcement actions designed to protect the public.  In PAGA cases, there are therefore no individual claims to arbitrate. Continue reading “No Arbitration of PAGA Claims”

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Rest Period Pay and Overtime Premiums for Piece-Rate Workers

A complicated and developing area of California wage and hour law involves how to calculate wages and premium pay for piece-rate workers. In this post, we will explain the calculations for rest period wages and overtime premiums for piece-rate workers.

Many California workers are compensated on what is known as a “piece-rate” basis. Piece-rate means that a worker’s pay is based on a specific amount paid for completing a particular task or making a particular piece of goods. This could include truck drivers who are paid based on the number or type of loads delivered, factory workers who are paid based on the number of widgets completed, or construction workers, such as plumbers or electricians, who are paid based on the number of installations they do.

Even though piece-rate workers are not paid by the hour, they are still entitled to the protections provided by the California Labor Code. These protections include overtime premium pay for more than eight hours of work in a day or 40 hours in a week, meal periods before the end of fifth hour of work, separate compensation for required rest periods, and wage statements showing, among other things, the number of pieces completed, the applicable piece rates, and overtime and rest period pay.

But if someone is paid by the piece, how is their hourly wage calculated for the purpose of determining the amount of wages for paid rest periods and overtime premiums?

Continue reading “Rest Period Pay and Overtime Premiums for Piece-Rate Workers”

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No On Call or On-Duty Rest Periods in California

On December 22, 2016, the California Supreme issued a blockbuster opinion in the case of Augustus v. ABM Security Services, Inc. (S224853).  As described more fully below, the Court held that California law prohibits both “on call” and “on duty” rest periods.  On call rest periods are those in which an employee is available by phone or by radio.  On duty rest periods are those in which the employees continue to perform some job duties.  For example, the plaintiffs in Augustus claimed that:

ABM required guards to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The holding in Augustus means that employers must relieve their workers of all duties, and relinquish all control over them during their breaks.  As such, Augustus is consistent with the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  Like BrinkerAugustus is a huge win for workers.

Continue reading “No On Call or On-Duty Rest Periods in California”

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Is your California employer paying you on time? If not, it may face significant penalties under PAGA.

Employers in California have to pay their employees by a certain date.  That date depends on whether the payments are made every two weeks (bi-weekly), twice a month (bi-monthly), or otherwise.  If an employer does not make its payments on time, it can face significant liability under the Private Attorneys General Act, as described below. Continue reading “Is your California employer paying you on time? If not, it may face significant penalties under PAGA.”

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Another Win for Workers in the War over Sampling and Damages in Class Actions

As workers have increasingly turned to class actions in order to combat wage theft and other unlawful actions in the workplace, employers have fought back on a number of fronts.  Two issues that have Gear-and-Gavel_dark-bluegotten a lot of attention lately are (1) the use of sampling and (2) the role of individualized damages.

How courts rule on the issue of sampling is important because it is often an effective way for workers to manage issues that arise in the class context.  How courts rule on the issue of individualized damages is critical because sometimes employers have unlawful policies or practices, but not all employees are damaged by them.  Under those circumstances, should the employees who have been damaged be able to bring a class action to vindicate their rights?

On November 21, 2016, workers in California won a significant victory with respect to both sampling and damages.  In Lubin v. Wackenhut (Second App. Dist.,  case no. B344383), the court of appeal reversed an order decertifying the class in a case brought by private security officers.  As a result, those workers will be able to proceed to trial and to bring their claims on a class-wide basis. Continue reading “Another Win for Workers in the War over Sampling and Damages in Class Actions”

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California Fair Pay Act Expands State Law Against Pay Inequality

gavel-952313-mThe California Equal Pay Act prohibits employers from paying men and women differently for equal work.  On October 6, 2015, Governor Jerry Brown signed the California Fair Pay Act, which expanded and strengthened the Equal Pay Act in several respects.  Under the California Fair Pay Act, employers are required to pay men and women equally for “substantially similar work” rather than merely “equal work.”  “Substantially similar work” refers to work that is similar in skills, effort, and responsibility, and performed under similar working conditions.

Continue reading “California Fair Pay Act Expands State Law Against Pay Inequality”

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Can California Employers Combine Rest Breaks into One Break?

One common source of PAGA penalties occurs when employers fail to authorize and permit the rest breaks that are required under California law.   When this happens, workers can recover one hour of pay at their regular hourly rate for each day they are deprived of one or more rest breaks.  They can also seek penalties […]

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Workers Who Sue for Unpaid Wages in California and Attorney’s Fees

California law provides many different ways for workers to recover attorney’s fees in wage and hour claims.  Some of these avenues include prevailing on a claim for failure to pay the minimum wage (see Labor Code section 1194), prevailing on a claim for unreimbursed business expenses (see Labor Code 2802), and prevailing under California’s Equal […]

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New Law Prohibits Employers From Forcing Workers To Bring Claims In Other States and Countries

On September 26, 2016, Governor Jerry Brown signed Senate Bill 1241, which addresses choice of law Gear-and-Gavel_dark-blueand choice of forum clauses in employment contracts.  Simply put, some employers try to force workers to bring any claims they might have (for discrimination, failure to pay wages, etc.) in other states.  The most aggressive seek to force workers to bring their claims in other countries.  See, for example, Petersen v. Boeing Co. (9th Cir. 2013) 715 F.3d 276, in which the employer attempted to compel the plaintiff to litigate his claims in Saudi Arabia.

Choice of forum clauses are particularly burdensome for low wage workers.  It is often a challenge for these workers to find an attorney to represent them, in part because their claims are generally thought to be worth less money.  A choice of forum clause requiring a worker to litigate in another state renders it even more difficult to find an attorney willing to take the case.

Beginning on January 1, 2017, California workers will have an important tool to combat choice of forum clauses.  The new Labor Code section 925 will prohibit employers from requiring employees who primarily reside and work in California to agree that they must bring employment-related claims outside of California, provided that the employees’ claims arise in California.  Under section 925, such contractual provisions are voidable, and any dispute over them must be heard and decided in California.  Additionally, section 925 provides for attorney’s fees to an employee who is enforcing rights under that section. Continue reading “New Law Prohibits Employers From Forcing Workers To Bring Claims In Other States and Countries”

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