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…)
An Employer May be Liable in a Car Accident Caused by an On-Call Employee
Ray David Moreno was the passenger in a company-owned pickup truck his father was driving when the vehicle veered off the road, hit an embankment, and rolled over. Mr. Moreno sustained serious injuries and sued his father’s employer, Visser Ranch, Inc. and the owner of the vehicle, Graceland Dairy, Inc. Mr. Moreno maintained that Visser Ranch was vicariously liable because the driver of the truck was acting in the scope of employment at the time of the accident. Moreno v. Visser Ranch, Inc., et al., 5th Dist. Case No. F07822 (filed December 20, 2018). (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…)
Employer not Liable in Personal Injury Lawsuit where Employee was on her Cell Phone at the Time of the Accident
Brittini Zuppardo was talking with one of her employer’s court reporters, Michelle Halkett, while driving home from her boyfriend’s house late one evening. Ms. Zuppardo was still on the phone when her vehicle crashed into Plaintiff Jessica Ayon, a pedestrian. Ms. Ayon sustained significant injuries. The police report indicated that Ms. Zuppardo was on the phone with “one of her court reporters” when the collision occurred. (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 My Boss Run a Background Check on Me in California?
California has two laws that protect employees from unauthorized background checks: the Consumer Credit Reporting Agencies Act, Civil Code section 1785, et seq. (“CCRAA”) and the Investigative Consumer Reporting Agencies Act, Civil Code section 1786, et seq. (“ICRAA”). (This blog post addresses only ICRAA, but we will post about CCRAA soon.) The California Supreme Court recently upheld the constitutionality of these statutes in a case called Connor v. First Student, Inc., S229428 (August 20, 2018). So now what? (more…)
Waiting Time Penalties under California Labor Code section 203
What are Waiting Time Penalties?
California Labor Code Section 203 provides for penalties to workers who are not paid all wages due at the time of their termination, or within 72 hours of their resignation. Waiting time penalties are in the amount of the wages that the worker normally earns, up to a maximum of 30 days. Accordingly, if a worker normally earned $25 per hour, and worked 8 hours per day, his penalties would max out at $6000 if the employer failed to pay him the wages due for 30 days or more.
Waiting Time Penalties under Labor Code section 203 are not discretionary
In the recent case of Diaz v. Grill Concepts Services, Inc. (May 24, 2018), the Second District Court of Appeal held that trial courts do not have the discretion to dispense with waiting time penalties under California Labor Code section 203.
The court reached this conclusion based upon a common sense interpretation of the language of the statute, which provides that an employer which fails to pay wages due to an employee who is discharged or quits “shall” be liable for the penalties. The court also considered the purpose of the statute, which is to enact a substantial penalty on an employer that delays in cutting the final paycheck. Finally, the court declined to create an equitable exception to the statute.
The holding in Diaz is important because workers rely upon their wages for the necessities of life. Diaz ensures that waiting time penalties are available in every case that wages are not properly paid at the time of termination.
If you have questions about your unpaid wages, please feel free to contact Hunter Pyle Law for a free and confidential initial consultation. We can be reached at (510) 444-4400 or inquire@hunterpylelaw.com.
National Lawyers Guild Presents Hunter Pyle with the Champion of Justice Award
On April 14, 2018, the National Lawyers Guild San Francisco Bay Area Chapter presented Hunter Pyle with the Champion of Justice Award at the Yerba Buena Center for the Arts. Hunter was recognized for dedicating his career to fighting for economic justice as an employment attorney, championing the causes of workers’ rights, and contributing to the progressive legal community. Hunter was also praised for spreading his passion and knowledge of workers’ rights by teaching employment law at Berkeley Law and mentoring inexperienced attorneys. Hunter expressed thanks not only to his family for supporting him, but to his clients who have the courage to stand up for justice and advocate on behalf of all workers.
Bonuses and Overtime in California: Does Your Company Owe You More Money?
If you work overtime in California and are are paid a bonus in addition to your hourly rate, you may be owed more money under a new California Supreme Court decision called Alvarado v. Dart Container Corp. (2018) 2018 WL 1146645.
In Alvarado, the workers were paid an “attendance bonus” if they worked on a Saturday or Sunday: In addition to their hourly rate, they were paid an extra $15 per day of weekend work. California law requires that bonuses be included as wages when calculating overtime rates for employees who work more than eight hours in a day, or more than 40 hours in a week.
The question in Alvarado was how to calculate an employee’s overtime rate when the employee earned a flat sum bonus during a single pay period. Both the trial court and the court of appeal granted summary judgment to the employer. However, the California Supreme Court reversed, and clarified how flat rate bonuses should be factored into overtime pay: (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 employer to claim that its employee falls within these exemptions, the employee’s work conditions must satisfy both the “salary basis” and “job duties” test. The purpose of this article is to discuss the legal requirements of the “salary basis” test.
Although it is commonly understood that a salary is a fixed amount of pay, the legal definition of a salary is much more complex. These requirements are set forth in the “salary basis” test. To constitute a salary, an employee must be paid: 1) a set amount of compensation; 2) that is not subject to any reductions or variations. If an employee’s compensation fails to satisfy this test, the employee must be paid overtime. Employers cannot avoid paying overtime by improperly labeling an employee’s pay as a salary.
What is a Salary?
In Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, the California Sixth District Court of Appeals held that a salary must be a predetermined amount of pay that is not subject to reductions or variations. However, there are specific exceptions, which are related to absences, under the Code of Federal Regulations[1].
The key issue in this case is whether a compensation system based on an hourly rate of pay qualifies as a salary. Mark Negri, the Plaintiff, was an insurance adjuster employed by Koning & Associates. He was paid an hourly rate, twenty-nine dollars per hour, with no guarantee of the minimum number of hours to be worked. Whenever Mr. Negri worked more than forty hours in a workweek, his employer only paid him at his hourly rate instead of an overtime rate of one-and-one half times his hourly rate. His employer argued that Mr. Negri was not entitled to overtime pay because he was an exempt administrative employee.
Mr. Negri argued that he was entitled to overtime pay, because his compensation structure did not comply with the “salary basis” test. Due to being paid on an hourly basis, his pay was not fixed because it fluctuated based on the number of hours worked each week. In contrast, his employer argued that Mr. Negri was paid a de facto salary because he always worked sixty hours each week. Therefore, his salary was fixed because it was predetermined and not subject to reduction or variation. Furthermore, Mr. Negri’s employer emphasized that it never reduced Mr. Negri’s de facto salary by reducing his workload.
Due to a technical nuance that occurred during the lawsuit, the appellate court held that Mr. Negri was not paid a salary. As the case proceeded through litigation, both the employer and Mr. Negri stipulated that it never paid Mr. Negri a fixed amount of compensation. A stipulation is when a piece of evidence is submitted to the court as the truth. In the stipulation, the employer stated, “[I]f he [Mr. Negri] worked fewer claims ‘he made less money than if he worked more claims.’” Essentially, the employer admitted that Mr. Negri was never provided a fixed amount of pay because it was possible for his compensation to change based on the number of hours he worked. Despite Mr. Negri prevailing on his claim, the appellate court noted that employees with a fixed salary may receive extra payment without losing their exemption.
Conclusion
As it stands, a salary is a predetermined amount of pay: 1) that is not subject to reductions or variations; and 2) twice the state minimum wage. However, employers may pay an exempt employee additional compensation beyond the predetermined salary. An example of this is a salaried employee who receives two thousand dollars bi-weekly, but also receives additional pay that is lower than the minimum wage for each hour worked over forty hours a week.
If you feel that you have not been paid your rightful wages, please feel free to contact Hunter Pyle Law for a free consultation at (510) 444-4400 or inquire@hunterpylelaw.com.
[1] 29 C.F.R. § 541.602(b)