Blog

PAGA and Arbitration: The Growing Conflict between State and Federal Court

In earlier posts, we have explored the question of whether arbitration agreements that are broad enough to include claims under California’s Private Attorneys General Act (Labor Code section 2698), or PAGA, should be enforced.  As of March 2017 there is a growing split between state and federal courts on this issue.  As a result, which court a case winds up in may very well determine how the court rules on this critical question. Continue reading “PAGA and Arbitration: The Growing Conflict between State and Federal Court”

Read more...

If Someone Hugs me in the Workplace, Can that be Considered Sexual Harassment?

If you feel uncomfortable when a boss or colleague hugs you in the workplace, do you have a valid claim for sexual harassment? Possibly. If a co-worker hugs you on several occasions and engages in other inappropriate conduct, you may have a claim. There is no magic number of incidents needed in order to establish liability. Continue reading “If Someone Hugs me in the Workplace, Can that be Considered Sexual Harassment?”

Read more...

Rest Periods Must be Separately Compensated for Commissioned Employees

In Vaquero v. Stoneledge Furniture LLC (Feb. 28, 2017, B269657) __ Cal.App.4th __ (“Slip Op.”), the Court of Appeal explained that an employer’s obligation to separately compensate employees for rest periods extends to employees who are paid on a commission basis. This decision is in accord with other Court of Appeal decisions that require employers to separately compensate rest periods for employees who are paid on a piece-rate basis. (See Bluford v. Safeway Stores, Inc. (2013) 216 Cal.App.4th 864; Gonzalez v. Downtown L.A. Motors, LP (2013) 215 Cal.App.4th 36; see also Labor Code § 226.2.)

In Vaquero, the court analyzed IWC Wage Order No. 7, which applies to the Mercantile Industry, including retail and wholesale salespeople. Section 12 of Wage Order No. 7 says that employees must receive 10 minutes of rest time for every four hours worked, or major fraction thereof, which must be counted as hours worked for which there shall be no deduction from wages.

Continue reading “Rest Periods Must be Separately Compensated for Commissioned Employees”

Read more...

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”

Read more...

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”

Read more...

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”

Read more...

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.”

Read more...

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”

Read more...

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”

Read more...