The Equal Pay Act prohibits employers from paying men and women differently for equal work. However, is it unlawful for an employer to have a policy that offers its new hires a salary that is five percent higher than their previous salary if the policy results in a female worker getting paid less than all her male colleagues?
In a 1982 decision, Kouba v. Allstate Insurance, the Ninth Circuit held that an employer can take prior salary into account when deciding an employee’s pay rate if the prior salary effectuated a business policy and was reasonable. 691 F.2d 873 (9th Cir. 1982). In a decision last month, the Ninth Circuit provided further guidance on the extent to which employers can rely on prior salary in determining its employees’ pay. Rizo v. Yovino, No. 16-15372 (April 27, 2017). Continue reading “The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act”
California’s Wage Orders provide as follows:
Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
The Wage Orders require employers to pay the employee for one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided and for an additional hour of pay at the employee’s regular rate of compensation for each workday that a meal period is not provided. See also California Labor Code Section 226.7.
In a recent case addressing an employer’s obligation to relieve its employees of all duties during a rest period, the California Supreme Court held that “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.” Augustus v. ABM Sec. Servs., Inc. (Mar. 15, 2017) 2 Cal.5th 257, 260. The Court clarified that an employers’ obligation to relieve an employee of all duties applied not only to meal periods, but also to rest periods. Id. at 265. Continue reading “On-Call Rest Periods Not Permitted in California”
Many California laws provide for injunctive relief, such as a court order prohibiting the defendant from continuing to engage in the acts of practices that gave rise to the lawsuit. One example is the unfair competition law, Business & Professions Code § 17200 et seq, which is referred to as the UCL. In the employment law context, workers sometimes bring claims under the UCL in part because it has a longer statute of limitations (4 years) than many wage and hour laws.
The UCL provides that an injured person can seek an order preventing future conduct:
Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments…as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. (Bus. & Prof Code, § 17203.)
Injunctive relief is both critical and powerful. In some cases it prevents defendants from getting away with a slap on the wrist. It also allows courts to stop defendants from engaging in illegal conduct now and into the future.
In recent years, however, many companies have implemented arbitration agreements that bar anyone who sues them from seeking injunctive relief. Some of these agreements go so far as to prevent people from seeking injunctive relief in any forum, including court. The California Supreme Court recently reviewed such agreements, and held that provisions in arbitration agreements that waive the right to seek public injunctive relief in any forum are contrary to public policy and unenforceable. This ruling should allow workers who are forced into arbitration to at least be able to pursue their claims for injunctive relief. Continue reading “Arbitration Agreements Cannot Ban Injunctive Relief in California”
Gilberto Santillan will have another opportunity to demonstrate that his employer of 32 years, USA Waste of California, Inc., wrongfully terminated him on the basis of his age and retaliated against him. On April 7, 2017, the Ninth Circuit Court of Appeal held that Mr. Santillan established a prima facie case under his claims for age discrimination and retaliation in Santillan v. USA Waste of California, Inc. (No. 15-55238, 2017 WL 1289971 (9th Cir. Apr. 7, 2017)). The Court further held that USA Waste failed to provide any evidence that it had a legitimate reason for firing him. Continue reading “Ninth Circuit Finds in Favor of Plaintiff’s Age Discrimination and Retaliation Claims”
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”
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?”
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”
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”
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”
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 Brinker, Augustus is a huge win for workers.
Continue reading “No On Call or On-Duty Rest Periods in California”