Employment laws provide workers with important protections, such as minimum and overtime wages, the right to be free from harassment or discrimination, and workers’ compensation. In certain situations, these laws conflict with The United States Constitution’s prohibition against governmental interference with the free exercise of religion. Specifically, the “ministerial exception” exempts individuals that are classified […]
Read more...Wage and Hour Law
Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse
On March 28, 2019, a third California Court of Appeal weighed in on the issue of whether California employees who have signed arbitration agreements can bring claims under the Private Attorneys General Act (PAGA) for unpaid wages.
To set the stage, in Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228, the Fifth District Court of Appeal held that a PAGA claim can be split, and that PAGA claims for unpaid wages under Labor Code section 558 can be sent to individual arbitration. In Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, the Fourth District Court of Appeal disagreed, holding that employees can bring those PAGA claims on a representative basis in court.
The Second District Court of Appeal has now weighed in on this issue in the case of Zakaryan v. The Men’s Wearhouse (March 29, 2019) Case No. B289192. In that case, the court agreed with Lawson for the most part, but added this interesting twist: Of the unpaid wages recovered, 75 percent must go to the State, and 25 percent to the workers. In reaching this holding, the Zakaryan court relied on the fact that Labor Code section 558 was enacted before PAGA. Therefore, PAGA’s later-enacted rule regarding the distribution of civil penalties recovered under that statute must control. Continue reading “Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse”
Read more...Is calling in to check your work schedule considered reporting to work?
Predictive scheduling laws have recently received a great deal of attention. Although California is considering passing statewide predictive scheduling laws, individual entities like the City of San Francisco have already enacted similar legislation. The push for predictive scheduling is to provide workers with stability and predictability by allowing them advance notice of their work schedules. […]
Read more...Are taxi drivers independent contractors under Dynamex’s ABC Test?
Whether an individual is an employee or independent contractor has become a hotly disputed legal topic. This classification is important because independent contractors do not receive employment-related protections, such as the right to minimum and overtime wages, the prohibition against discrimination, and workers’ compensation. In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th […]
Read more...Labor Code 226.2: Are Piece-Rate Workers Compensated for Rest Periods?
What is California Labor Code 226.2?
California Labor Code section 226.2 says that workers who are paid on a piece-rate basis must be paid separately for their rest periods and “other nonproductive time.” Section 226.2 defines other nonproductive time as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.” For workers in California who are paid on a piece-rate basis this means that they must be paid at least the minimum wage for all hours worked, and for their rest period time, in addition to their piece-rate compensation. This law was passed following two appellate court decisions that interpreted California Wage Orders to require that piece-rate workers be compensated for all hours worked, which includes the time they are not performing work for piece-rate wages. Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 40 (2013) (piece-rate auto-repair workers “entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer during their workshifts”); Bluford v. Safeway, Inc., 216 Cal. App. 4th 864, 872 (2013) (under California law that employees must be compensated for each hour worked, “rest periods must be separately compensated in a piece-rate system”). Continue reading “Labor Code 226.2: Are Piece-Rate Workers Compensated for Rest Periods?”
Read more...Supreme Court: Service Advisors are Exempt under the FLSA
Reversing the Ninth Circuit Court of Appeals, the U.S. Supreme Court ruled that “service advisors” employed by car dealerships are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). Encino Motorcars, LLC v. Navarro, No. 16-1362, 2018 WL 1568025 (U.S. Apr. 2, 2018) (“Encino Motorcars II”).
The FLSA requires employers to pay employees overtime compensation if they work more than 40 hours a week, unless the employee is exempt. One of the exemptions in section 213 of the FLSA covers “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements….” 28 U.S.C. § 213(b)(10)(A). Continue reading “Supreme Court: Service Advisors are Exempt under the FLSA”
Read more...Are Stock Options and Stocks Considered Wages?
There has been an increase in companies that compensate employees with stock options or equity (e.g. stock). This practice is used to reduce the financial burden on cash-strapped startups or to incentivize employees to maximize a company’s financial success. Because it is unclear if stock options or equity have tangible value, there is ambiguity regarding […]
Read more...Are You a Salaried Employee If You are Paid by the Hour?
Under California law, employers must pay workers overtime when work is performed: 1) over forty hours in a workweek; 2) over eight hours each day; or 3) on the seventh consecutive day in a workweek. However, employees that fall under the professional, executive, and administrative exemptions may be excluded from earning overtime compensation. For an […]
Read more...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...