Which Wage and Hour Laws Apply to California Public Employees?
Wage and hour laws require that employers pay minimum wages and overtime wages, provide meal and rest breaks, and pay all wages immediately upon termination of employment, among many other things. Public employees often wonder whether they are covered by these laws, or whether such basic protections do not apply to them. The answer in California, in true lawyerly fashion, is, “it depends.” This post will attempt to sort out which wage and hour laws apply to public employees and which, unfortunately, do not. (more…)
California Court Clarifies Rule Regarding Reimbursing Employees for Slip-Resistant Shoes
When is a California employer required to reimburse its employees for the cost of slip-resistant shoes? On June 4, 2019, the Court of Appeal for the Third Appellate District answered this question in the case of Townley v. BJ’s Restaurants, Inc. (Case No. C086672).
The defendant in Townley operates 63 restaurants in California. In order to avoid slip and fall accidents, it had a policy that required all hourly employees to wear slip-resistant shoes while at work. These shoes also had to be black and have a closed toe. The defendant did not require any particular type of design or brand of shoe.
The Court of Appeal held that the defendant was not required to pay for the cost of its employees’ slip-resistant shoes. The Court noted first that California employers are required to pay for work clothing when the clothing is a “uniform” or qualifies as protective apparel regulated by CAL/OSHA or OSHA. See 8 Cal. Code. Regs. Tit. 8, § 11050(9)(A).
However, the Court also noted that the Division of Labor Standards Enforcement (DLSE) had authored an opinion letter stating that employers are allowed to specify that employees must wear basic wardrobe items such as black shoes without having to pay for them. See Opinion Letter No. 1990.09.18 (1990). The question is whether the item required is “usual and generally usable in the occupation.”
Turning to the facts of the case, the Court concluded that the slip-resistant shoes at issue did not qualify as a “reasonable expenditure” under Section 2802. The plaintiff had not argued that the shoes were part of a uniform. Nor could she prove that such shoes were not usual and generally usable in the restaurant industry. Finally, the Court found no support for the argument that the defendant had to reimburse its employees for basic non-uniform items.
If you have questions about your rights in the workplace, including whether or not your employer is required to reimburse you for the cost of certain things that you have purchased for work, please feel free to contact the attorneys at Hunter Pyle Law for a free and confidential intake process. We can be reached at inquire@hunterpylelaw or at (510) 444-4400.
Whistleblower Rights under California Labor Code Section 1102.5
A whistleblower is someone who calls attention to unlawful behavior or activities in the workplace. California Labor Code section 1102.5 is one of the strongest whistleblower protection laws in the land. The recent decision of Ross v. County of Riverside (2019) 2019 WL 2537342 further strengthens that law. by clarifying that employees need only believe that some illegal activity is happening when they report it. They do not have to expressly state that the activity violates the law in order to be protected. (more…)
Dynamex Applies to Franchisors and Is Retroactive: The Ninth Circuit Weighs in
All companies want to reduce their labor costs. Unfortunately, some resort to classifying their workers as independent contractors when they really should be classified as employees. Among other issues, that misclassification robs the workers of critical protections under the law: For example, many wage and hour laws do not apply to independent contractors.
Last year, in Dynamex Ops. v. Superior Court (2018) 416 P.3d 1, the California Supreme Court issued a strong opinion in favor of California’s workers. Dynamex adopted the “ABC test” for determining whether workers are employees or independent contractors under the California wage orders. Now, in Vasquez v. Jan-Pro Franchising Int’l (May 2, 2019), the Ninth Circuit Court of Appeals has gone further, approving the ABC test, holding that Dynamex applies retroactively, and applying it to franchise relationships. (more…)
Arbitration and the California Supreme Court: A Glimmer of Hope in Melendez
Corporations in recent years have made great strides in their efforts to hijack the American system of justice and force workers out of court and into mandatory arbitration. Their hope is that arbitration is such a stacked deck (and often it is) that workers will choose not to try to enforce their rights. They also hope that the “repeat player” phenomenon will give them a decisive advantage in terms of the results. Sadly, all too often that is the case.
However, there are signs that some judges are beginning to realize exactly what is going on with mandatory arbitration-and what a travesty it is. (more…)
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. (more…)
How to Stop Wage Theft and Hold Your Boss Personally Liable for Unpaid Wages under California Law
Wage theft, or the failure to pay all wages due, is a serious problem. Studies show that up to $50 billion 
in wages go unpaid every year in the United States, and even workers who get court judgments for unpaid wages find it hard to collect on them. One reason for this state of affairs is that the law makes it relatively easy for individuals to hide behind corporate status and/or corporate shells in order to protect their assets.
A 2018 California court case clarifies that workers in this state have an important tool that allows them to bring suit against individual business owners for unpaid wages. In Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, the court held that two former employees could sue the owner of the restaurant at which they had formerly worked for unpaid wages. The court reached this decision despite the fact that the owner had created a corporation that was technically the employees’ employer. (more…)
Providing PAGA Notice to the LWDA | Hunter Pyle Law
PAGA, also known as the Private Attorneys General Act of 2004 (Cal. Labor Code § 2698, et seq.) requires workers to give written notice to California’s Labor and Workforce Development Agency, or LWDA, before seeking civil penalties that otherwise could only be recovered by the state of California. A 2018 appellate decision in Brown v. Ralph’s Grocery Company, a case that has been pending since 2009, provides guidance in terms of how much written notice is required in PAGA notice letters, and when workers are required to amend their PAGA notice letters in order to preserve claims that that they discover after the date of their letter. (more…)
California Employers Must Pay for All Off-The-Clock Work: Troester v. Starbucks
California employers must pay for all off-the-clock work, even when it does not add up to very much money.In Troester, for example, Starbucks sought to use the de minimis doctrine to avoid paying wages for short periods of time spent closing the store and transmitting daily sales, profit and loss, and store inventory data to Starbucks’s corporate headquarters. Starbucks also sought to avoid paying for time spent activating the store’s alarm.
All in all the plaintiff estimated that he was owed about $100. That may not sound like a lot, but give the number of Starbucks in California it is clear that Starbucks was saving itself a significant amount of money in unpaid wages through its practices.
Troester reaffirms California’s strong commitment to ensuring that workers are paid for every minute that they work. If you are being forced to work off-the-clock, or have questions about your rights in the workplace, feel free to contact us at inquire@hunterpylelaw.com or (510) 444-4400 for a free and confidential initial intake.
Can I Be Fired for My Political Beliefs or Activities in California?
In this time of political turbulence, many people wonder if they can be fired for their political beliefs or activities. In California, the answer to that question is no, thanks to the provisions of California Labor Code sections 1101 and 1102.
Section 1101, which has been on the books since 1937, provides as follows:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Note that section 1101 is broad, and includes rules, regulations or policies that tend to control or direct the political activities or affiliations of employees. This would include terminating an employee for his or her beliefs, because doing so would tend to control his or her activities or affiliations.
Section 1102, also enacted in 1937, provides as follows:
No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
The California Supreme Court has interpreted these laws favorably for employees in a pair of cases. First, in Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, a group of employees had sued claiming that Lockheed fired them because of their political activities. In response, Lockheed raised a series of challenges to section 1101.
The Court rejected each of Lockheed’s challenges. The Court held first that section 1101 is not so uncertain or ambiguous as to be unconstitutional. The Court further held that section 1101 was not an arbitrary or unreasonable limitation on the right to contract.
Perhaps most importantly, the Court recognized that an employee who suffers a violation of section 1101 can bring a private right of action for damages resulting from a breach of his or her employment contract. In reaching this holding, the Court noted that Labor Code section 1105 provides that “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.”
The Court then reasoned that, “a contract of employment must be held to have been made in the light of, and to have incorporated, the provisions of existing law. Hence, upon violation of the section, an employee has a right of action for damages for breach of his employment contract.” Lockheed Aircraft Corp., 28 Cal.2d at 486. (citations omitted)
Three decades later, the Court revisited sections 1101 and 1102 in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458. In that case, a group of students claimed that the defendant was discriminating against gays and lesbians by refusing to hire them, and that such conduct violated sections 1101 and 1102.[1]
The Court held that sections 1101 and 1102 “serve to protect ‘the fundamental right of employees in general to engage in political activity without interference by employers.’” 24 Cal.3d at 487. For this reason, the statutes should not be narrowly confined to partisan activity. Furthermore, “[t]he term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.” (emphasis in original)
The Court then reiterated its holding in Lockheed that employees who are fired in violation of sections 1101 and 1102 can bring claims for damages.
If you are fired for your political beliefs or activities in California, you may be able to bring several different types of claims. First, you can sue under sections 1101 and 1102 directly. You may also be able to sue for wrongful termination in violation of public policy. See, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890. Third, you may be able to sue for breach of the covenant of good faith and fair dealing. See, e.g., Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.
It is not clear whether an employee who prevails under section 1101 or 1102 will be entitled to his or her attorneys’ fees. Therefore, you may also wish to explore bringing a claim under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), which provides for reasonable attorneys’ fees and costs. See Cal. Lab. Code section 2699(g)(1).
If you have questions about your rights in the workplace, please feel free to contact Hunter Pyle Law for a free and confidential initial intake. We can be reached by phone or by text at (510) 444-4400 or at inquire@hunterpylelaw.com.
[1] At that time, sexual orientation was not a protected category under the Fair Employment and Housing Act. It is now. See Cal. Govt. Code section 12940(a)(1).