Uncategorized Archives - Page 5 of 15

New California Law Prohibits Employers from Asking Job Applicants about Salary History

Tanya TamblingOctober 13, 2017June 27, 2023

On October 12, 2017, Assembly Bill 168, which prohibits employers from asking job applicants for salary history information, was signed into law by Governor Jerry Brown. Governor Brown vetoed a similar bill in 2015 on the grounds that it would prevent employers “from obtaining relevant information with little evidence that this would assure more equitable wages.” This time around, the bill enjoyed the support of both parties and the governor. Continue reading “New California Law Prohibits Employers from Asking Job Applicants about Salary History” →

Wage Statements and PAGA: Penalties under Labor Code 226.3

Hunter PyleSeptember 29, 2017October 29, 2020

California Labor Code section 226(a) requires that employers provide accurate, itemized wage statements to employees. Those statements must include nine categories of information. Labor Code section 226(e)(1) provides that an employee who suffers injury as a result of a knowing and intentional failure to comply with subdivision (a) is liable for up to $4,000 plus costs and reasonable attorney’s fees. (The terms injury and knowing and intentional failure are further defined in section 226(e)(2)).

Litigants have grappled for years over the question of whether the injury and knowing/intentional failure requirements of section 226(e) apply to a plaintiff who sues under the Private Attorneys General Act (“PAGA”) seeking civil penalties for a violation of section 226(a). Continue reading “Wage Statements and PAGA: Penalties under Labor Code 226.3” →

California Labor Code 558 and PAGA: Recovering Wages

Hunter PyleSeptember 6, 2017October 29, 2020

What penalties do employers face for underpayment of employees? California Labor Code Section 558 outlines penalties employers face for underpayment of employees. The relevant language from section 558 is as follows: (a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter […]

Ninth Circuit Issues Decision Regarding Employee’s Retaliation Claim Against Employer’s Attorney

Tanya TamblingJuly 13, 2017June 23, 2023

In Arias v. Raimondo, Plaintiff Jose Anrulfo Arias filed suit against his employer’s attorney, Anthony Raimondo, for retaliation after Raimondo tried to have Arias taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) during a deposition. Arias v. Raimondo, No. 15-16120 (June 22, 2017). Raimondo was representing Angelo Dairy in a lawsuit that Arias had filed in 2006 alleging various wage and hour violations. In an attempt to derail this lawsuit, Raimondo provided ICE with information helpful in determining Arias’ legal status in the United States, and offered to “make the necessary arrangements” to assist ICE in apprehending Arias just ten weeks before trial. When Arias discovered what Raimondo had done, he settled his wage and hour claims out of fear that he might be deported. Then, Arias filed suit against Raimondo for retaliation in violation of the the Fair Labor Standards Act (“FLSA”) under the theory that Raimondo was acting as Angelo Dairy’s agent when he retaliated against Arias. Continue reading “Ninth Circuit Issues Decision Regarding Employee’s Retaliation Claim Against Employer’s Attorney” →

SLAPP Motions and Discrimination Claims: The California Supreme Court Limits Defendants’ Ability To Attack FEHA Cases

Hunter PyleJuly 7, 2017June 25, 2018

California has a powerful statute that is aimed at protecting our right to engage in free speech. Known as the SLAPP law, Code of Civil Procedure section 425.16 allows people who are sued for engaging in free speech to bring a motion dismiss the lawsuit that has been filed against them. In order to prevail […]

The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act

Tanya TamblingMay 30, 2017May 30, 2017

The Equal Pay Act prohibits employers from paying men and women differently for equal work. However, is it unlawful for an employer to have a policy that offers its new hires a salary that is five percent higher than their previous salary if the policy results in a female worker getting paid less than all her male colleagues?

In a 1982 decision, Kouba v. Allstate Insurance, the Ninth Circuit held that an employer can take prior salary into account when deciding an employee’s pay rate if the prior salary effectuated a business policy and was reasonable. 691 F.2d 873 (9th Cir. 1982). In a decision last month, the Ninth Circuit provided further guidance on the extent to which employers can rely on prior salary in determining its employees’ pay. Rizo v. Yovino, No. 16-15372 (April 27, 2017). Continue reading “The Ninth Circuit Examines Whether Prior Salary Can Justify Wage Discrepancies Under the Equal Pay Act” →

No Arbitration of PAGA Claims

Hunter PyleJanuary 5, 2017June 25, 2018

PAGA continues to be an important tool for workers in California seeking to enforce their rights under the Labor Code. Employers continue to try to force PAGA claims into arbitration, where they think that they have a decisive advantage. Yet courts continue to block these efforts. As a result, PAGA claims remain in court where they belong.

The latest case to hold that PAGA claims cannot be arbitrated is Hernandez v. Ross Stores, Inc. (2d DCA Pub. Order 1/3/17) E064026. There, the plaintiff, a warehouse worker, sought to bring a PAGA-only action against the discount store giant for failure to pay wages, failure to properly itemize hours, and failure to pay overtime. Ross attempted to compel Hernandez to arbitrate her individual claims, arguing that its arbitration agreement stated that it applied to “any disputes arising out of or relating to the employment relationship” between Ross and an employee. Ross contended, based upon this language, that before Hernandez could bring a PAGA action, she had to arbitrate the “dispute” over whether she was an aggrieved employee.

Not surprisingly, this too-clever-by-half argument failed. Both the trial court and Division Two of the Second District Court of Appeal held that Hernandez could not be compelled to arbitrate her PAGA claims. The trial court grounded its analysis in the seminal case of Iskanian v. CLS Transportation (2014) 59 Cal.4th 348, which held that PAGA actions-whether seeking penalties for one employee or for a group of them-are fundamentally law enforcement actions designed to protect the public. In PAGA cases, there are therefore no individual claims to arbitrate. Continue reading “No Arbitration of PAGA Claims” →

Rest Period Pay and Overtime Premiums for Piece-Rate Workers

Chad SaundersDecember 29, 2016March 13, 2017

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” →

No On Call or On-Duty Rest Periods in California

Hunter PyleDecember 23, 2016March 13, 2017

On December 22, 2016, the California Supreme issued a blockbuster opinion in the case of Augustus v. ABM Security Services, Inc. (S224853). As described more fully below, the Court held that California law prohibits both “on call” and “on duty” rest periods. On call rest periods are those in which an employee is available by phone or by radio. On duty rest periods are those in which the employees continue to perform some job duties. For example, the plaintiffs in Augustus claimed that:

ABM required guards to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The holding in Augustus means that employers must relieve their workers of all duties, and relinquish all control over them during their breaks. As such, Augustus is consistent with the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. Like Brinker, Augustus is a huge win for workers.

Continue reading “No On Call or On-Duty Rest Periods in California” →

Penalties for Late Payment of Wages under California Labor Code 204

Hunter PyleDecember 22, 2016October 29, 2020

How soon after payroll period are employers required to pay employees?

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 “Penalties for Late Payment of Wages under California Labor Code 204” →