California’s “Day of Rest” Requirements

In an important decision for California employees and employers, the California Supreme Court issued its opinion in Mendoza v. Nordstrom, 2 Cal. 5th 1074, 393 P.3d 375 (2017) clarifying the Labor Code’s “day of rest” requirements.  The Court was addressing questions posed by the Ninth Circuit Court of Appeals regarding how to interpret California Labor Code sections 551 and 552. See Mendoza v. Nordstrom, Inc., 778 F.3d 834 (9th Cir. 2015). Labor Code section 551 states that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Labor Code section 552 prohibits employers from “causing their employees to work more than six days in seven.”  However, Labor Code section 556 provides that employers do not have to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

Continue reading “California’s “Day of Rest” Requirements”

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...

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...

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...

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 […]

Read more...

California Wage Statements and Exempt Employees

Gear-and-Gavel_dark-blueCalifornia Labor Code section 226 requires that an employer provide its employees with wage statements, sometimes known as pay stubs, when it pays their wages.  Section 226(a) provides a list of the specific information that must be included in wage statements.  Employers that ignore these requirements face liability both under section 226(e), and, through PAGA, under section 226.3.

One of the requirements of section 226(a) is that the employer state the total number of hours that an employee worked.  This requirement is important for most employees, because it is the most effective way to figure out whether you are paid for all hours worked.  But what about employees who are not paid by the hour, like salaried employees or employees who are paid on a commission basis? Continue reading “California Wage Statements and Exempt Employees”

Read more...

Some Real Data Regarding the Gig Economy-and What It Tells Us About the Future of the U.S. Economy

It feels like the “gig economy” (also referred to euphemistically as the “sharing economy”) has taken Gear-and-Gavel_dark-blueover.  Uber, Grubhub, TaskRabbit, wherever you look, it seems like employees are being replaced by independent contractors or temporary workers who are being exploited by internet-based companies.  This perception is stoked by predictions in the tech industry, such as Intuit’s recent claim that by 2020, 43 percent of workers will be employed in the on-demand labor market.  (Of course, Intuit markets its products to “on-demand employers,” so such predictions should be taken with a grain of salt.)

A tectonic shift of this nature would upend the way that we think about work and wages.    Among other things, independent contractors are not subject to many wage and hour requirements, such as overtime and the minimum wage.  And temp workers often struggle to piece together a livable income from multiple sources of employment. Continue reading “Some Real Data Regarding the Gig Economy-and What It Tells Us About the Future of the U.S. Economy”

Read more...

Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods

Over the past decade or so, higher court rulings regarding class actions have tended to dramatically favor either corporations or workers.  Corporations have arguably scored the most significant victories.Gear-and-Gavel_dark-blue  However, with the recent exit of Justice Antonin Scalia from the United States Supreme Court, there are some indications that this tide has begun to turn.  At the same time, it is clear that a Republican victory in November 2016 would return a conservative majority to the Court, and devastate any positive momentum in terms of workers’ rights.

Vaquero v. Ashley Furniture Industries, Inc., No. 13-56606 (June 8, 2016), a recent decision of the Ninth Circuit, is a good example of the type of decision that we can hope to see more of in the future.  Vaquero does three important things.   First, it properly limits the scope of Wal-Mart v. Dukes, 564 U.S. 338 (2011) with respect to the issue of commonality.  Second, it limits the impact of Comcast v. Behrend, 133 S. Ct. 1426 (2013) in wage and hour class actions.  Finally, it underscores the critical holding in Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016) that plaintiffs may continue to rely upon representative evidence to prove both liability and damages.  As such, Vaquero provides powerful ammunition for workers and their advocates in class actions. Continue reading “Commonality, Damages, and Representative Evidence:  The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods”

Read more...

Are You Entitled to Overtime if You are a Trucker in California?

Many truckers in California work more than eight hours in a day or more than forty hours in a week.  Based on the number of hours they work, many drivers believe they are entitled to overtime pay, but Gear-and-Gavel_goldare they right?  Maybe.  There are several factors that must be considered, such as 1) the route the trucker is driving; 2) the goods the trucker is transporting; and 3) the weight and length of the truck.

 

There are two sets of laws that can affect overtime compensation for truck drivers in California:  federal overtime law and California overtime law.
FreightlinerRoad2

Continue reading “Are You Entitled to Overtime if You are a Trucker in California?”

Read more...

Representative Evidence May Be Used to Prove Class Action Wage Claims

In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Gear-and-Gavel_blackStandards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages.  Continue reading “Representative Evidence May Be Used to Prove Class Action Wage Claims”

Read more...