Do I Get Paid Sick Leave?: Decoding California’s New Paid Sick Leave Requirements

In 2015, the California Healthy Workplace Healthy Family Act (AB 1522) came into effect. Because of this new law, many California employees are now entitled to paid sick leave. Below are answers to some frequently asked questions about California’s new paid sick leave law. Gear-and-Gavel_gold (more…)

How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision

This month in an unpublished opinion in Green v. Bank of America, No. 13-56023 (9th Cir. Oct. 13, 2015), the Ninth Circuit clarified the standard for exhaustion of administrative remedies under the California Private Attorneys’ General Act (PAGA). The plaintiffs are now petitioning the court to have this decision published, so that the PAGA notice standard becomes the law of the Circuit. (more…)

Proposed Changes to Overtime Laws Will Help Millions of Employees Nationwide

In July, the United States Department of Labor (DOL) announced a new rule that would extend federal overtime protections to millions of “white collar” workers. (more…)

A Bright Spot for Workers in Tuesday’s Dismal Election Results

Despite the lingering outrage and disapproval many of us have regarding the Republican victory at the polls last Tuesday, there were some major wins for workers across California and the country which should be embraced and not overlooked.Gear-and-Gavel_black

Raising Minimum Wages:

Starting local, both Oakland and San Francisco voted to raise their local minimum wages. Oakland’s minimum wage will go up to $12.25 next year and San Francisco is now on track to gradually increase its minimum wage to $15 by 2015. (more…)

Developments in Wage and Hour Law-2014

[Each year, I participate in an employment/wage and hour law update put on by the Alameda County Bar Association Labor and Employment Committee.  This year, I am going to summarize some of the topics that I discussed (or wanted to discuss) in a series of blog posts.  This is the first of those posts.  I am also Gear-and-Gavel_dark-blueplanning to cover the following topics in the weeks to come:  Class Actions; PAGA Claims; and Arbitration.]

A number of important cases have come down in the year since our last employment/wage and hour law update in September 2013.   Workers scored significant victories in a number of areas, including cases involving whether “independent contractors” are actually employees for the purposes of wage and hour law; federal preemption of meal and rest breaks for truck drivers; the inside sales exemption; and reimbursement for expenses related to cell phones.  However, the news was not all bad for employers, as courts continued to express skepticism toward off the clock cases and mileage reimbursement cases.  Finally, the California Supreme Court has agreed to address several critical issues pertaining to seating cases.  Until then, those cases are probably on hold.

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A Win for Commissioned Salespeople:  Peabody v. Time Warner Cable, Inc.

In order to be exempt from the overtime requirements of California law (as well as other wage and hour laws such as those requiring meal and rest breaks), commissioned employees must meet two requirements: [1]Gear-and-Gavel_dark-blue

1.      They must earn more than one and half times the applicable minimum wage[2] (“the minimum wage test”).

2.      They must earn at least half of their wages from commissions.

This test therefore poses the following question:  What about employees who, because of their commission structure, earn less than one and a half times the minimum wage in some pay periods?  Are employers allowed to average an employee’s wages across pay periods in order to determine whether they meet the minimum wage test?

The California Supreme Court recently addressed this issue.  In Peabody v. Time Warner Cable, Inc. the Court held that employers may not consider commission payments in other pay periods in order to meet the minimum wage test of the commissioned employee exemption.

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Ninth Circuit Clarifies California Labor Law Protections for Truck Drivers in Dilts v. Penske Logistics

California labor laws almost always offer stronger protections than their federal counterparts, which set the minimum baseline for all states. However, for some categories of employees, the California Labor Code protections can be preempted by federal laws- meaning the federal law supersedes the California law. Federal Gear-and-Gavel_blackpreemption of California laws almost always translates into fewer protections for employees.

Two federal regulatory schemes in particular contain preemption clauses: the Federal Aviation Administration Authorization Act of 1994 (FAAAA), dealing with motor carriers (the trucking industry), and the Airline Deregulation Act of 1978 (ADA), dealing with the air carriers. Both laws bar the application of California laws “relating to the rates, routes, or services” of any air or motor carrier.

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Duran v. U.S. Bank: Statistics Remain an Important and Viable Tool in Achieving Class Certification

On May 29, 2014, the California Supreme Court issued its decision in Duran v. U.S. Bank (2014) S20093.  Class action practitioners throughout the state have been awaiting this decision for some time, hoping that it will provide guidance as to how to properly litigate “misclassification” cases.  (Misclassification cases areGear-and-Gavel_dark-blue those in which the plaintiffs claim that they were improperly exempted from overtime and other wage and hour laws.)

Duran may not have gone as far as some hoped.  However, its most important point is clear:  Statistics remain a viable way to prove both liability and damages in class actions-provided, that is, that the methodology underlying the statistics is sound. (more…)

California Takes Hopeful Step to Raise the Minimum Wage to a Living Wage

The California minimum wage is set to increase to $9.00 an hour, effective July 1, 2014. This week, though, the State Senate approved more a more drastic measure to increase minimum wages. On May 29, the State Senate approved a measure that would slowly but surely raise the minimum up to $13 an hour in Gear-and-Gavel_black2017. The bill is being sponsored by Senator Mark Leno of San Francisco, who wants to help the 7.9 million Californians who are currently earning minimum wages to climb out of poverty. (more…)

The Law Regarding “On-Duty” Meal Periods in California

What is an on-duty meal period?

An on-duty meal period is one in which the employee is not relieved of all duties. In California, on-duty meal periods are only legal under certain narrow circumstances. On-duty meal periods are only legal if:

  1. The nature of the work prevents an employee from being relieved of all duty.
  2. The employer and the employee agree to on-duty meal periods in writing.
  3. The meal period is paid.
  4. The agreement to waive the meal period can be revoked at any time in writing by the employee.

Meal Period Regulations in California

Gear-and-Gavel_goldCalifornia employers are generally required to provide an unpaid, off-duty meal period of at least 30 uninterrupted minutes to its non-exempt employees for every five hours of work. During these meal periods, employees must be relieved of all duties and employers must relinquish control over their activities. Employers may not impede or discourage employees from taking their breaks. See Brinker v. Superior Court (2012) 53 Cal.4th 1004; California Labor Code §226.7; 8 Cal. Code Regs. §11040. If an employee is not afforded a 30-minute uninterrupted meal break for every five hours worked, the employer must compensate the employee for one additional hour of pay for each workday that the meal break is missed. California Labor Code §226.7.

Sometimes, in an attempt to circumvent this law, employers ask employees to sign forms agreeing to take “on-duty” meal periods. However, on-duty meal periods are permissible only under very limited circumstances, as described above.

Under this narrow exception to the general rule that employers must provide off-duty meal periods, an employer who opts to implement on-duty meal periods carries the burden of establishing that the facts justify an on-duty meal period. Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 961 (9th Cir. Cal. 2013); see also Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014). Because on-duty meal periods are limited alternatives to the off-duty meal requirement, various factors are considered when analyzing employer-mandated on-duty meal periods. If an employer has a qualified representative who can perform the duties, the on-duty meal exception may not apply. Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014) (citations omitted). However, if a position calls for an employee to be on duty at all times and that employee is the sole employee of a particular employer, the exception may apply.

Hunter Pyle Law recently represented a client whose employer had a blanket policy mandating that all dispatchers agree to “on-duty” meal breaks. The employer required our client to sign an on-duty meal period agreement despite the fact that she worked with one to two other dispatchers at all times. The other dispatchers could have relieved our client of her duties. Our firm was able to settle this case before filing a lawsuit on favorable terms on the grounds that the employer could not meet its burden in demonstrating that the on-duty meal period exception was justifiable.

If you have questions about your meal periods, on-duty meal agreements, or would like to speak with an experienced wage and hour attorney, please contact Hunter Pyle Law at 510.444.4400, or email us at ttambling@hunterpylelaw.com, for a free consultation.