My Company Owes Me Wages.  Can I Sue My Boss Individually For Them?

In California, employees can sue certain individuals for money that their employers owe them.  But a recent decision by the California Supreme Court limits the avenues for that type of recovery.

First, the good news:  California Labor Code section 558.1 allows “person[s] acting on behalf of an employer” to be held liable as the employer for violating any provision regulating minimum wages or hours and days of work in any of the Industrial Welfare Commission wage orders.  This section also applies to the following Labor Code sections:  203 (failure to pay wages due at the time of termination); 226 (failure to provide proper wage statements); 226.7 (failure to provide meal and rest breaks); 1193.6 (failure to pay minimum wage); 1194 (failure to pay minimum wage) and 2802 (failure to reimburse for business expenses). (more…)

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

The California Supreme Court has clarified an important issue regarding wage and hour claims under California law .  In Troester v. Starbucks Corporation (2018) 5 Cal.5th 829, as modified on denial of reh’g (Aug. 29, 2018), the Court addressed the question of whether the de minimis doctrine applies in claims brought under the California Labor Code.  Critically, the Court held that it does not.  As a result, California employers must pay for all off-the-clock work, even when it does not add up to very much money.

The de minimis doctrine, as developed under federal law, has been something of a “get out of jail free” card for employers.  In Latin, de minimis refers to the phrase, “de minimis non curat lex,” or “the law does not concern itself with trifles.”  In the modern world, the doctrine has been used under federal law to allow employers to avoid paying wages for small amounts of otherwise compensable time based upon a showing that recording that time would be difficult to do.

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.

The California Supreme Court divided the Troester case into two separate holdings.  First, the Court found that California’s wage and hour laws and regulations had not adopted the federal de minimis doctrine.  That is a critical difference between the California Labor Code and the federal Fair Labor Standards Act (also known as FLSA).

Second, the Court held that where an employer requires an employee to work “off the clock” the de minimis doctrine does not apply to claims brought under California law.

In conclusion, the Court recognized that it might be difficult for an employer to track small amounts of time for the purpose of calculating payroll.  However, employers are in a far better position to structure work so that employees are paid for all time spent working.  Indeed, it appears that after Starbucks was sued it figured out how to organize its employees’ work so that they did not have to perform work before they punched in and after they punched out.

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.

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