Rest Period Pay and Overtime Premiums for Piece-Rate Workers
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?
Penalties for Late Payment of Wages under California Labor Code 204
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. (more…)
Can California Employers Combine Rest Breaks into One Break?
One common source of PAGA penalties occurs when employers fail to authorize and permit the rest breaks that are required under California law. When this happens, workers can recover one hour of pay at their regular hourly rate for each day they are deprived of one or more rest breaks. They can also seek penalties under PAGA, as well as their attorney’s fees.
A recent decision by the Second District of the California Court of Appeal clarifies the timing of rest breaks, and whether rest breaks can be combined into a single break. Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027 involved a class action brought by workers who paint metal parts manufactured in machine shops. The workers worked eight hour shifts, so they were entitled to two ten minute rest breaks. EME, the employer, required the workers to take their two rest breaks in one combined break that lasted 20 minutes.
The court looked closely at the language of Wage Order No. 1-2001, which provides as follows:
Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.
The court also considered the holding in the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. There, the California Supreme Court held that employers could deviate from the preferred course of providing rest breaks in the middle of each work period “where practical considerations render in infeasible.” The Rodriguez court also noted this critical language from Brinker:
As a general matter, one rest break should fall on either side of the meal break. Shorter or longer shifts and other factors may alter this general rule.
Id. at 1032.
One of the critical questions resolved by Rodriguez is what the phrase “insofar as practicable” means. The court interpreted that phrase narrowly, holding that an employer could depart from the preferred schedule only where it could meet two requirements:
- Departing from the preferred schedule of two rest breaks, with one on either side of the meal break, would not unduly affect employee welfare; and
- The departure is tailored to alleviate a material burden that would otherwise be imposed on the employer.
The court then turned to the evidence submitted by the parties. If found that a single declaration submitted by the plaintiff was sufficient to defeat the employer’s motion for summary judgment. This was somewhat surprising, given that the employer had submitted a large amount of evidence in support of its motion.
The court then turned to the question of whether the term “work period” meant the two work periods that fall on either side of the meal break under the preferred schedule, or something else. The defendant, along with various employer-side legal organizations, argued that the term “work period” means the entire shift, and that an employer’s only obligation was to ensure that during the entire shift, the meal and rest breaks divide the shift into approximately equal work periods.
The court rejected the defendant’s argument. Instead, it held that in an eight hour shift with a single meal break, the preferred schedule requires the provision of two rest breaks, with one in the middle of each of the work periods that fall either side of the meal break.
Last, the court considered the issue of under what circumstances an employer can combine two or more rest breaks into one longer rest break. The court noted only one situation where that type of combination was permissible: when an employer’s business requires shifts in which the meal break must be taken soon after the workers start their shifts. (One example of this type of situation might be in a restaurant where the waitstaff eat their meals before the rush of customers makes it impossible to take breaks.)
Rodriguez thus establishes that employers that choose to depart from the standard meal and rest break schedule must be two relative stringent requirements. Otherwise they will face significant liability under California’s wage and hour laws.
If you have questions about the meal or rest breaks at work, please feel free to contact Hunter Pyle Law for a free consultation. We can be reached at inquire@hunterpylelaw.com or 510.444.4400.
Suing for Unpaid Wages in California: Recovering Attorney’s Fees
If I lose my wage and hour claim, will I have to pay my employer’s attorney’s fees?
California law provides many different ways for workers to recover attorney’s fees in wage and hour claims. Options for employees who wish to sue for unpaid wages may include:
- prevailing on a claim for failure to pay the minimum wage (see Labor Code section 1194)
- prevailing on a claim for unreimbursed business expenses (see Labor Code 2802)
- prevailing under California’s Equal Pay Act
These fee-shifting statutes are incredibly important in wage and hour cases (among others). This is because the damages in such cases, while often significant to the worker, are often not enough for an attorney to take the case on a contingency fee basis (whereby the attorney gets a percentage of the amount recovered). Absent the possibility of a fee shift, many workers who have not been paid the wages they are owed would be unable to find an attorney to help them recover those wages.
Recovering Attorneys Fees through California Labor Code Section 218.5(a)
One commonly used avenue to recover attorney’s fees in wage and hour actions is California Labor Code section 218.5(a), which provides in part as follows:
In any action brought for the nonpayment of wages…the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s
fees and costs upon the initiation of the action.
Significantly, the language quoted above is mandatory (“shall”) as opposed to permissive (“may”). As a result, attorney’s fee awards in unpaid wages claims often dwarf the plaintiff’s actual recovery.
Prior to 2014, section 218.5(a) was a completely two-way statute, meaning that it did not distinguish between prevailing employers and prevailing employees. As a result, if a worker brought a claim for unpaid wages and lost, the employer could recover its attorney’s fees. This threat was a strong disincentive for workers to sue, because if they lost they would be facing a judgment against them of tens if not hundreds of thousands of dollars.
Fortunately, an amendment to section 218.5, effective January 1, 2014, provides as follows:
[I]f the prevailing party in the court action is not an employee, attorney’s fees and costs shall be awarded pursuant to [section 218.5] only if the court finds that the employee brought the court action in bad faith.
This amendment was hugely beneficial to workers. As long as their claims for unpaid wages are not brought in bad faith (meaning that there is a reasonable, good faith dispute regarding their claims), they do not have to worry about getting hit with the employer’s attorney’s fees if they lose.
Recent Clarifications of Labor Code section 218.5
Two recent appellate decisions have resolved some of the lingering questions regarding section 218.
First, in USS-POSCO Industries v. Case (2016) 244 Cal.App.4th 19, the court addressed the question of whether the amendment to section 218.5 applied to actions that were pending before January 1, 2014. The court held that California courts have long treated legislation affecting the recovery of attorney’s fees as applying to actions pending at the time of
enactment. (This is different than federal courts, which have refused to apply the new version of section 218.5 to cases pending as of January 1, 2014.) Thus, in California state courts, the new version of section 218.5 applies to actions that were pending at the time of enactment. In other words, to recover attorneys’ fees in actions for unpaid wages, employers will need to show that the claims are brought in bad faith.
At the same time, employers that prevail on claims for unpaid wages may be able to recover their court costs, even if the plaintiff prevailed on other claims. See Sharif v. Mehusa, Inc. (2015) 241 Cal.App.4th 185. To unpack this a bit, under California Code of Civil Procedure section 1032(4), which provides for the recovery of court costs by a prevailing party, there is normally only one prevailing party. Thus, if the plaintiff wins on only one of his or her claims, the plaintiff is still likely to recover his or her costs and the defendant is unlikely to be able to do so.
However, section 218.5 provides a separate avenue to recover costs. Thus, if an employer prevails on a claim for unpaid wages, but loses on other claims, the employer can still recover costs if it can show that the employee filed its claim for unpaid wages in bad faith.
For these reasons, the news for workers on section 218.5 is mixed. But the recent amendments allowing employers to recover their attorney’s fees only in the case of bad faith will protect workers in the event that they sue and lose.
If you have questions about suing for unpaid wages, feel free to contact Hunter Pyle Law for a free initial intake. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.
California Wage Statements and Exempt Employees
California Labor Code section 226 requires that an employer provide its employees with wage statements, sometimes known as pay stubs, when it pays their wages. Section 226(a) provides a list of the specific information that must be included in wage statements. Employers that ignore these requirements face liability both under section 226(e), and, through PAGA, under section 226.3.
One of the requirements of section 226(a) is that the employer state the total number of hours that an employee worked. This requirement is important for most employees, because it is the most effective way to figure out whether you are paid for all hours worked. But what about employees who are not paid by the hour, like salaried employees or employees who are paid on a commission basis? (more…)
Some Real Data Regarding the Gig Economy-and What It Tells Us About the Future of the U.S. Economy
It feels like the “gig economy” (also referred to euphemistically as the “sharing economy”) has taken over. Uber, Grubhub, TaskRabbit, wherever you look, it seems like employees are being replaced by independent contractors or temporary workers who are being exploited by internet-based companies. This perception is stoked by predictions in the tech industry, such as Intuit’s recent claim that by 2020, 43 percent of workers will be employed in the on-demand labor market. (Of course, Intuit markets its products to “on-demand employers,” so such predictions should be taken with a grain of salt.)
A tectonic shift of this nature would upend the way that we think about work and wages. Among other things, independent contractors are not subject to many wage and hour requirements, such as overtime and the minimum wage. And temp workers often struggle to piece together a livable income from multiple sources of employment. (more…)
Commonality, Damages, and Representative Evidence: The Ninth Circuit Properly Cabins Dukes and Comcast, and Underscores Tyson Foods
Over the past decade or so, higher court rulings regarding class actions have tended to dramatically favor either corporations or workers. Corporations have arguably scored the most significant victories. However, with the recent exit of Justice Antonin Scalia from the United States Supreme Court, there are some indications that this tide has begun to turn. At the same time, it is clear that a Republican victory in November 2016 would return a conservative majority to the Court, and devastate any positive momentum in terms of workers’ rights.
Vaquero v. Ashley Furniture Industries, Inc., No. 13-56606 (June 8, 2016), a recent decision of the Ninth Circuit, is a good example of the type of decision that we can hope to see more of in the future. Vaquero does three important things. First, it properly limits the scope of Wal-Mart v. Dukes, 564 U.S. 338 (2011) with respect to the issue of commonality. Second, it limits the impact of Comcast v. Behrend, 133 S. Ct. 1426 (2013) in wage and hour class actions. Finally, it underscores the critical holding in Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016) that plaintiffs may continue to rely upon representative evidence to prove both liability and damages. As such, Vaquero provides powerful ammunition for workers and their advocates in class actions. (more…)
Are Truck Drivers Entitled to Overtime Pay?
Many truck drivers work more than eight hours in a day or more than forty hours in a week. Based on the number of hours they work, are these truck drivers entitled to overtime pay? Maybe. There are several factors that impact whether truck drivers get overtime, such as:
1) the route the trucker is driving,
2) the goods the trucker is transporting,
3) and the weight and length of the truck.
There are two sets of laws that can affect overtime compensation for truck drivers in California: federal overtime law and California overtime law.
Federal Law: Overtime Requirements for Truck Drivers
In order to be exempt from federal law requirements, drivers must fall under the authority of the United States Department of Transportation (“DOT”). California law applies to drivers whose activities are governed by the DOT or the State of California regulations. If a driver qualifies for overtime under either law, he or she is entitled to overtime pay.
Under federal law, drivers might be exempt from overtime under the Motor Carrier Exemption of the Fair Labor Standards Act (“FLSA”). The issue is whether a driver is involved in interstate commerce. For example, if a driver transports goods over state borders, he or she is involved in interstate commerce and exempt from overtime. If a driver carries goods that have crossed or will cross state lines, the entire shipment will likely be considered “interstate” and the driver will not be entitled to overtime. If a driver transports goods only within the State of California, the driver may be entitled to overtime under FLSA. However, under federal law, there are no provisions for overtime after eight hours in a day or doubletime for more than twelve hours in a day. Rather, federal law only allows for overtime after forty hours of work in the work week.
California Law: Overtime Requirements for Truck Drivers
Under California law, most truck drivers are exempt from overtime. For example, truckers who drive trucks weighing over 26,001 pounds are exempt from overtime law. If a truck weighs between 10,000- 26,001 pounds, the trucker is exempt from overtime if he or she is involved in interstate commerce. Drivers of hazardous waste and farm labor vehicles are also exempt from overtime law. If a driver tows a trailer and the combined length of the vehicles is over forty feet, or if the trailer weighs over 10,000 pounds, the driver is exempt from overtime law in California.
Questions about Overtime for Truck Drivers?
A truck driver may or may not be entitled to overtime compensation; however, truck drivers generally are entitled to meal and rest breaks under California law. If you are a truck driver in California and believe that you may be entitled to overtime pay or if you have questions about your work situation, please feel free to call Hunter Pyle Law for a free consultation at (510)-663-9240 or inquire@hunterpylelaw.com. Hunter Pyle Law has represented many truck drivers throughout the State.
Representative Evidence May Be Used to Prove Class Action Wage Claims
In a case of national importance, the U.S. Supreme Court ruled that workers could use representative or statistical evidence to prove their claims for overtime under the Fair Labor Standards Act (“FLSA”). Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (“Tyson Foods”). The case involved workers at a meat-processing plant in Iowa. They claimed that Tyson Foods did not pay them for the time they spent putting on and taking off (“donning and doffing”) protective equipment for their dangerous work, or for the time they spent walking to and from their workstations in the plant. At trial the workers used a report from an industrial relations expert to show the amount of time they spent donning and doffing. The expert had done videotaped observations to find out how long these activities usually took and then averaged the times. The average times were added to each employee’s timesheets to determine which employees worked more than 40 hours per week if their donning and doffing time was taken into account. The trial court accepted this evidence and the jury awarded the workers $2.9 million in unpaid wages. (more…)
The Timing of Rest Breaks: Before or After Meal Breaks, and Can a Company Combine Breaks into One Long Break?
Two questions have bedevilled practitioners representing workers in California ever since the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court in 2012: In a shift that qualifies for two rest breaks and one meal break, are employers required to provide one rest break before the meal break and the other one after? And, on a related note, can an employer combine multiple rest breaks into one long rest break?
In Rodriguez v. E.M.E., Inc. (April 22, 2016), the employees worked eight hour shifts. The defendant provided them with one meal break and one 20 minute rest break that fell either before or after the meal break. The Second District Court of Appeal used this scenario to provide some critical guidance with respect to when and how employers must schedule rest breaks. (more…)